ASK THE ATTORNEY

How do we handle these two FMLA edge cases?

07/24/2015
Q: “An employee requests permission to arrive 5-10 minutes late for work each morning because her spouse suffers from multiple sclerosis, and is so fatigued that he cannot get out of bed on his own in the morning to take his medicine. Is the employee considered eligible for intermittent FMLA? Is an employee asking to leave work on occasion to pick up her father, who suffers from dementia and sometimes wanders off, eligible for intermittent FMLA?” – April, Tennessee

Might disciplining too soon after an injury invite a retaliation claim?

07/21/2015
Q: “An employee violated a safety rule and injured himself. Would we be setting ourselves up for a retaliation claim if we issued him a write-up on the day of his return?” – Vincent, Lousiana

Did we offer this employee the right options when his health insurance ran out?

07/21/2015
Q: "We are a small employer in the state of New Jersey, with less than fifty employees. We have some questions in reference to an employee, a truck driver. First, the employee had unexpected heart surgery, and will be out of work for five or six months. We paid for his medical insurance for an additional one-and-a-half months after his surgery, but we can no longer afford the expense of the medical insurance and offered him the COBRA plan. The broker tells us, 'In the state of New Jersey, you have to be on the payroll in order to be on the medical plan.' The employee told us, 'I can't afford the COBRA payment.' Certified letters were mailed to him explaining the COBRA law, and the amount of money he has to pay is more than $1,300. Are we right or wrong in what we did? In addition, do we have to take him back when he is medically able to return? The position has already been filled, the new employee is outperforming him, and we don’t want him back." – Joseph, New Jersey

What limits can we put on unpaid leave without a potential FMLA or other violation?

07/06/2015
Q: “What should we do about an employee who has exhausted her PTO but continues to use unpaid leave with little or no notice?” – Holly, Virginia

Can we pay our registered nurses a salary and make them exempt employees?

07/06/2015
Q: “Some days our surgery schedule is longer than eight hours; some days it is less and our nurses can go home early. As they are licensed professionals and make more than double the minimum wage, what is the exempt rule?” – Debra, California

Can employees be paid partially in housing credit?

07/06/2015
Q: “I work with a property management company who hires current tenants to work around the property, cleaning or doing outside work. They are currently compensated with a monthly rent credit. They put in as many hours as is necessary to get the job done, which could put them over 40 hours in a week. They sign a contract with the company to do this. Are there any issues with doing this? Should they be hired on and paid as an employee?” – Susan, Michigan

What procedures do we need to put in place to institute a car allowance policy?

07/06/2015
Q: “I have been instructed to create a policy/procedure for employees who receive a ‘car allowance’ for use of their personal vehicle for work purpose on a daily basis. I'm not sure where I would need to begin to determine the company's responsibility/liability as well as what documents the company should have on file from the employees, i.e. current driver’s license, personal insurance policy, driving record?”  – Marchia, Oklahoma

Can we attempt this across-the-board wage reduction?

06/30/2015
Q: “Our organization has to reduce salary wages by 20 percent. The plan is to reduce three of the five departments to 32 hours and adjust their wages accordingly. Can this legally be done?” – Vince, Louisiana

Have we made our employees' contact info too accessible?

06/15/2015
Q: “We have created an employee directory in Outlook that contains employees’ personal information (home phone, cellphone number, address). This directory is for internal use only and only current employees have access to the directory. One of the employees expressed displeasure with having personal information available to all employees. Is there any legal issue with us posting their personal information in this directory? Do we need to get employees’ permission?” – JMG, New Jersey

When hiring, can a church inquire about an applicant's religious beliefs?

06/15/2015
Q: “As a church employer, is it legal for us to request an applicant to state his/her religious beliefs, or to require them to be of our beliefs? Also, should we include our ‘Statement of Religious Beliefs’ in our employee handbook?” – Judy, Missouri

What sort of disclosure should we provide when an investigation begins?

06/15/2015
Q: “Often an employer needs to conduct investigations not strictly related to harassment and discrimination. My understanding is that those investigations require a disclosure, i.e. the company states there will be no retaliation, and confidentiality will be assured except in need-to-know situations. But if we are investigating a policy violation for example, or theft, are these disclosures required, and if not, is it a best practice regardless?” – Anonymous, New York

Can we eavesdrop on customer calls for training purposes?

06/15/2015
Q: “Is it legal, without informing the caller, to have a supervisor listen in on a trainee’s conversation with a customer?” – Vincent, Texas

If employee is slowing down, can we ask about his health?

06/01/2015
Q. We have an experienced employee who is not working at an acceptable pace. We need to address his speed, but we're concerned he may have medical issues. Can we ask him about his health? – Anonymous, Illinois

Are returning summer employees considered new hires?

05/26/2015

Q: "We have a few college students who work for us during their summer break. According to the law, are they required to complete new employment paperwork (I-9, W-4, etc.) each year?” – Marchia, Oklahoma

Is the company liable for what happens when an employee leaves the premises on break?

05/26/2015

Q: “If an employee leaves company premises during his/her designated paid and/or unpaid breaks (without clocking out) to retrieve meals (personal items), etc., is the company liable if the employee is involved in an incident?" – Denise, Louisiana

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