ASK THE ATTORNEY

When a manager moonlights within the company, how do we pay her?

04/07/2014

Q: Our salaried marketing manager (who does not have any direct reports) decided to work a couple of Saturdays as a bartender at our business to supplement her income, despite our policy discouraging it except in emergencies. It is her expectation that in addition to her salary, she will receive the hourly rate for hours bartending, and keep her tips. What is the best practice regarding managers receiving tips? Our restaurant managers [when required to fill in for absent workers] only keep their tips if they are the only one working that day; otherwise they usually distribute them to whichever tipped employees are working that day. Does the manager who is customarily required to cover for his or her staff get treated differently than the manager who does not? Are there other associated legalities I need to be aware of? – Heidi, Missouri

To whom may we give payroll information when an employee is a minor?

04/07/2014

Q: We have employees under 18 years of age, and I have been contacted by their parents requesting information about their wages, W-2 information and other random payroll information. Am I allowed to give them whatever information they request since the employee is considered a minor, or is that information only allowed to be shared with the employee? – Wendy, Colorado

Is it legally dangerous to terminate this worker given his health issues?

04/07/2014

Q: We have an employee who has been going thru some difficult personal issues related to his health and overall well-being. I believe he is going through similar issues at home with one of his children. He recently passed out at work and was taken to the hospital by ambulance but was given the “all clear” by his own physician and the physician we sent him to separately. Even though I have warned the company of this employee's rights under FMLA, they do not believe that whatever is going on with this employee will be resolved within 12 weeks and they wish to terminate him, against my advice. Would this be leaving us in danger of a lawsuit for not allowing the FMLA time first? – Anonymous, Illinois

How much do we need to pay a salaried worker for the day of termination?

04/07/2014

Q: Our pay period is Sunday through Saturday. A salaried employee is being laid off on Monday. Should she be paid hourly for time worked during the final pay week?  Does that include the unauthorized time she informed her supervisor she worked on Sunday? – Dawn, Tennessee

How exactly do we count our employees for FMLA compliance?

04/07/2014

Q: I am the Chief Everything Officer of an HR firm. I have a client who is an insurance firm. Counting owners, they have more than 50 employees, and I've been managing their FMLA. I've just learned that owners need not be counted. I am struggling with the clarity of this-finding one citation that the owners need to have at least 20% ownership, which is not the case. Can you help me clarify this, so I can determine whether or not we need to comply with FMLA? – Nora, Indiana

Employees work only on commission: How much must we pay?

03/31/2014

Q: If we have commission-only salespeople and they don't make any sales during a pay period, do we need to give them at least the minimum wage for the hours they worked? If yes, can we call that minimum pay a “draw” and deduct it from their next commission check? And if we have commission-only salespeople who are regular employees, can they be excluded from receiving PTO or any other benefits? — Denise, California

Is it legally safe for us to install a use-it-or-lose-it policy?

03/31/2014

Q: What are the laws for the state of Illinois concerning a “use-it-or-lose-it” policy for sick time and vacation time? Also, are there laws for earning comp time, or is that a thing of the past? — Julie, Illinois

Can we discipline an employee for the actions of his significant other?

03/25/2014

Q: We have an employee whose girlfriend has come in and wandered through the production floor without permission. We have escorted her out of the building twice in the last month. We also talked with the employee about his girlfriend. What are our options if she comes in again? Should we call the police? Is there any way we can discipline the employee because his girlfriend keeps calling in several times a day wanting to talk with him? – Carol, Washington

Was this manager wrongly terminated for harassment?

03/25/2014

Q: A large corporation fired a general manager because Human Resources received an allegation of sexual harassment by him. The terminated employee alleging the harassment had been fired at the direction of Human Resources six months prior because it was found that she had sent threatening text messages to another company employee. There was no verbal or written disciplinary action taken against the general manager at any time for any offense until he was terminated. He has seven years of documented exemplary service with this company, as well as letters from all but one of his ex-employees stating that at no time was he ever guilty of sexual harassment or mismanagement of any kind. Does he have legal recourse for wrongful termination? – Sandra, Texas

How do we handle these fine points of background checks?

03/17/2014

Q: If we do a background check for potential new hires, we do notify them and get their acknowledgement through the company that orders the background reports, but do I also need to provide them with a copy of the Fair Credit Reporting Act if we do not perform a credit report check? Also, the background authorization form that the employee signs includes the Social Security number of the applicant; is it OK to include as attachment with my employment application? – Kim, North Dakota

Is a salary only for full timers?

03/17/2014

Q: Can part-time employees be salaried workers? – JMDG, New Jersey

Can a worker use FMLA leave to pitch in with her granddaughter's care?

03/17/2014
Q: We have an employee who would like to use FMLA time to spend with her daughter after her grandchild is born later this year. There are no expected complications post-birth, but the new Mom will need much assistance. Would this qualify for FMLA leave? – Mary, Illinois

Does the behavior during this office pet controversy rise to the level of bullying?

03/10/2014

Q: Our company president allowed two people in the office to bring their rescued dogs to work until an incident caused us to disallow animals of any sort on the premises unless they were service animals. Within minutes of announcing this new policy via email, an affected employee came to my office and gave me a "piece of her mind,” standing very close to the door as if to block it, breathing very heavily and waving her arms around, and saying that she was not leaving. Afterward, I thought all was quietly settled until one of the employees posted a store-bought sign in front of her cubicle reading "Beware of Dog.” I'm feeling very uncomfortable and expecting retaliation. I believe that what the employees have done falls under the description of workplace bullying or harassment. What do you recommend? – Anonymous, California

What happens when workplace policy and the employer's actions don't align?

03/10/2014
Q: What is the legal term used when actions, permitted by an employer, are in contrast to written policy or procedures, thereby becoming the actual policy? – Guy, New Mexico

Was this FMLA notification failure our fault, or our vendor's?

03/10/2014

Q: I have a client that uses a vendor to administer its Family and Medical Leave Act benefit for employees. The vendor did not provide proper notification to an employee who was out for a serious health condition. The employee actually had a few conditions, but the vendor assumed that every absence was for the same condition. The vendor never returned phone calls or emails from the employee, and the only communcation that was sent to the employee was notification that the FMLA leave was allegedly exhausted. Does this merit an FMLA employee notification violation? If so, who is liable, the vendor or the employer? – Darnell, North Carolina

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