ASK THE ATTORNEY

How do we help an employee who falls outside the scope of the FMLA?

09/26/2016

Q: “How do I offer additional time off to a new employee who is not eligible for FMLA but who suffers from migraines? We are exploring an adjusted work schedule through the ADA. Can she can have any protection under the FMLA even though she hasn't been on the job long enough? If we allow her to continue to take unpaid time off, that will become a violation of our sick leave policy. How do I help this employee in a way that will provide her with protection from being fired due to her excessive absenteeism?” – Arvis, Wisconsin

Employees served legal papers at work--are there rules or restrictions?

09/26/2016

Q: “Are we obligated by law to allow a process server to serve summons, subpoenas or court orders to our employees? Are we obligated to inform an employee that a process server is attempting to serve him or her legal papers at work?” – Arvis, Wisconsin

Can we block an employee's return from FMLA leave?

09/14/2016
Q: “I have an employee who went out on FMLA leave for surgery. She just had her two-week follow-up appointment, and the doctor suggested that she stay out for another month. The employee told the doctor it would drive her crazy to be home for four more weeks, so the doctor went ahead and wrote that she would be able to return to work in one week instead of four. Are we as a company legally able to ask the employee not to return until she has had her four-week re-evaluation?” – Jeanet, Colorado

Under what circumstances may we ask to see a Social Security card?

09/14/2016
Q: “We have had several employees over the years who completed our new hire forms (and front page of I-9) and transposed numbers in their Social Security numbers, which caused issues with Payroll. Can I require new hires to show me their Social Security cards so that I can confirm the number is correct? In most cases I will see this as one of the documents for the I-9, but if they choose other forms for their I-9, can I still ask? Can I make a copy if it for my payroll records? What if they refuse? Can I terminate them? What if they say they don't have a card or lost it?" – Michelle, Pennsylvania

Is it fair to factor unusually high health plan costs into an employee's total compensation package?

09/14/2016
Q: “Our standard health care benefits cover an employee’s entire premium. In practice, that usually means factoring in roughly $3.5 to $4K into the total compensation package. A candidate being interviewed asked about benefits and then voluntarily disclosed having a family (spouse and three children over 10 years of age). The candidate also (again, voluntarily) shared an interest in coming onto our health care plan, as the spouse may be considering a different job opportunity. Depending on details, we estimate that the family plan (which would be subsidized after 60-75 days of employment) could total between $18K and $24K. We were originally considering a total compensation range of approximately $55-$60K for the position, which would translate to a base salary of approximately $48-$50K (not including the standard benefits of paid leave and individual health care coverage). Can we factor in the expected family health care costs in our salary negotiations? Factoring the total health care cost into our conversation would also likely change the position into nonexempt under the new law.” – Anonymous, District of Columbia

'I need to take an FMLA day'--how do we confirm it's valid?

09/14/2016
Q: “When I have approved intermittent leave and an employee then calls in to the supervisor and says something like ‘I need to take an FMLA day,’ what can I do legally to get proof they are really sick for the reason listed on the certification?” – Melissa, Oklahoma

What suffices as a reasonable accommodation for prayer?

08/22/2016
Q: “What is the appropriate location for an employee who is Muslim requesting accommodations to pray during working hours? Would the location be much the same as what is offered to nursing mothers?” – Ernesdean, North Dakota

Can we offer a break on health insurance premiums to some workers but not others?

08/22/2016

Q: “We understand that we can offer different health care arrangements to different classes of employees. Specifically, can we provide different premium contributions to different employees, if there is a business reason to do so (to retain management, for example)?” – Joanne, Oklahoma

Is online training ever non-compensable?

07/18/2016

Q: “Can an employer require training online and not reimburse for the time spent?” – Kelly, Florida

Can we refuse to allow employees to travel the way they wish?

07/11/2016
Q: “Every year we send our sales staff to a couple of trade shows, mainly in Las Vegas. We book the flights and lodgings, pay mileage to and from the airport, pay for all meals and all hours worked at the trade show, plus overtime. We reimburse for any incidental expenses that may be incurred by the employees. Our 'star' employee prefers to drive next time instead of flying; this would mean an extra expense for our small company (for the longer travel time, extra meals, extra lodging and extra mileage). When we said no, everyone is flying, the employee replied that he would drive on his own dime. We do need this employee at the trade show, but it is not cost-efficient for us. I just want to make sure that we are not violating any labor laws by saying everyone must fly to this particular show (due to the distance), with no exceptions.”  – Nora, Wyoming

How do we phrase a job ad so we don't discriminate against foreign-born workers?

07/05/2016

Q: “I have a client with 40 employees that is not able to offer sponsorship to any candidate who is not legally able to work in the United States. I understand that we cannot put 'Prefer US citizen or authorized to work in the U.S.’ on a job ad, but is there any means that we can use to alert candidates to the requirements?” – Anne, District of Columbia

Will combining sick leave and vacation leave lead to a termination pay problem?

07/05/2016

Q: “In North Carolina, it is my understanding that employers are required to pay out any vacation earned and not used, but not sick leave. We have PTO which is intended to be used for both vacation and sick leave. Can I have a policy included in our handbook that at termination, employees can be paid out a maximum of, say, 10 of the 15 days they earn?” – Anonymous, North Carolina

Same employee, different work--are different pay rates OK?

06/13/2016
Q: “Is it legal to pay an employee to ‘volunteer’ at a company event at a lower rate than what we typically pay them? The event is a conference where staff would be manning a booth, answering questions, giving out information, etc.  – Yari, Illinois

Employee takes FMLA leave, but wants to keep up with union duties--must we allow it?

05/31/2016

Q: “Should our company permit an employee (also a union steward) who is granted time off under FMLA to continue to come to the workplace to perform union duties?” – Kathie, Pennsylvania

When is travel time to work compensable?

05/23/2016
Q: “Our employee's workday begins at a site location, which could be an hour or more from home, and there is no other "corporate office" location. It is my understanding that travel time to work (wherever that may be) is not compensable. Is there any instance in which this is not true? For example, a very long distance from home?” – Anonymous, North Carolina
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