ASK THE ATTORNEY

What exactly is the employee head count that brings the ACA into play?

01/26/2015

Q: “Please clarify for me the number of employees it takes to place a company under the obligation of Obamacare. Our insurance carrier said it had been increased from 50 employees to 100.” – Vincent, Louisiana

What is the protocol on asking employees to provide a doctor's note?

01/21/2015
Q: “When an employee calls off sick for more than one day, is there a minimum amount of days off required before an employer can ask for a doctor’s note? Also, in the state of Pennsylvania are you permitted to ask the specific reason for the absence?” – Joe, Pennsylvania

Did we shortchange this employee on his seniority when we rehired him?

01/21/2015
Q: “An employee left the company in good standing to pursue other interests in August of 2012. We rehired him six months later and started him as a new employee. He lost his previous seniority of 13+ years. My position is that his original seniority date should have been adjusted to reflect his time away from work, and that he should not have returned with new employee status. What do other companies do, and is there any legal support for my position?” – T., New Jersey

Is this worker's 'sincerely held' religious belief just a smokescreen?

01/21/2015
Q: “We recently hired a delivery driver, and during the interview and orientation he was told he had to shave his beard due to delivering to schools, residence, etc. We have a policy of no beards. He showed up to work his first day still unshaven. When asked why, he said that it’s against Protestant religion to shave. Is this so?” – Connie, Florida

Is there a formula for determining pay when hours are reduced?

01/21/2015
Q: “When an employee goes from a full-time salaried position to part-time hourly, do we have to pay salary divided by 2080?” – Sherry, Florida

What does Michigan law say about paying vacation time upon separation?

01/21/2015
Q: “Our vacation policy states that accrued and unused vacation time will not be paid at termination; however, it further states that upon resignation by an employee, if three weeks’ notice is given, then the accrued and unused vacation time will be paid. Is this legal for Michigan?” – Susan, Michigan

Different positions on different days: How do we pay?

01/05/2015
Q: “Can you ask an employee to work one day at a certain position with a salary of $25 per hour and the next day work a different position but at a lower rate of $21 per hour? Employees on a rig crew switch positions many times, so one day they may be a rig operator, and the next day they may be a derrickhand.” – Santana, Texas

Is changing an employee's role too fast and too often legally dangerous?

01/05/2015
Q: “Our company has changed an employee’s position four times in one year and his title twice in the same year. He was the assistant scheduler, scheduler, shipping/logistics admin, and his latest title/position is customer service rep. Other than the move to shipping/logistics admin, none of the changes were welcomed by the employee. None of the changes produced job descriptions or expectations. Basically, he shows up and is told that his office and job have changed. Lacking an up-to-date employee handbook, what are the legal ramifications should he choose to file an EEOC claim?” – Anonymous, Texas

Does our policy against body piercings go too far?

01/05/2015
Q: “The President of our company said that no employee who has a body piercing will be promoted to a position that is exposed to any of our customers. He said that this policy applies even to their own time. But is it legal to control employees on their own time?” – Vincent, Louisiana

An employee's personnel file isn't yet complete--do we still have to start paying wages?

01/05/2015
Q: “At our company, we allow employees to begin working without handing in the documentation we require, such as reference letters or résumés. We always make sure we have the proper documentation such as I-9s, W-4s, etc. Are we legally allowed to hold an employee’s paycheck until their personnel file is complete? For example, we hold onto an employee’s check until they hand in their reference letter even though they have worked already.” – Michael, New York

Who needs to go: the employee or the dog?

01/05/2015

Q: “We are a privately held company. Our owner brings her dog to work with her every day. We have a new employee that has just found out—due to health-related issues—that she is allergic to the dog. The owner said she will not terminate the employee, but the employee needs to decide whether she wants to stay or not because the dog is not going anywhere. Please advise me on this issue.” – Angela, North Carolina

Can we honor this employee's request for a pay cut?

12/08/2014

Q: “We provide in-home care for individuals with intellectual disabilities and have notified our employees that effective January 1, 2015 they will no longer be able to work over 40 hours per week, since the DOL will no longer allow the Companionship Care Exemption from overtime. I just received a letter from one of my employees offering to take a pay cut so that she can still work 40+ hours per week but make the same amount she is currently making. Is it legal for me to cut her hourly pay rate (at her request)?” – Janet, North Carolina

Can we terminate these employees--or are our suspicions of drug use not quite enough?

12/01/2014

Q: “I was told by workers that a newly hired employee sold marijuana to another employee who is also new. I have cameras and I can see them going through each other’s bags but I have no evidence other than the other employees’ words. What can I do? Can I confront them both? Can I terminate?” – Gianna, Massachusetts

Is this employee's failure to acknowledge our contact after a leave dispute grounds for termination?

11/24/2014

Q: “We have an employee who was hired in January 2014 and shortly afterward announced she was pregnant. She went on leave Aug. 4 and was scheduled to return Oct. 20. She did not qualify for FMLA or NJFLA. On Oct. 20, she came into the office (which is shared by another company) and an employee of the other company told her that another person had been working at her desk. Our employee called her supervisor and let her know that she had returned from maternity leave and that she was not happy that someone was at her desk. The supervisor expressed that she was not aware that she was returning from maternity leave that day, that someone was indeed working at her desk, and that she (supervisor) would like for her (employee returning from maternity leave) to work at another office that we have. The offices are less than three miles from one another and the employee would be performing the same job duties. The employee got mad, both called and sent an email to HR, and then left the office before any of our employees arrived.

“The supervisor and HR have both tried to contact her by phone and email. A certified letter was mailed to the employee stating that when an employee is on leave, it takes a little time to get them re-established in our system (logins, passwords, etc.).

“We know that she was upset, we apologized for the inconvenience, but explained that she did not wait to hear a response from HR as to what to do and that if she would contact us, we would be willing to work things out. We have not heard from her and are wondering what should be our next step? Our policy is if you do not report for work and the company is not notified of your status, it will be assumed after two consecutive days of absence that you have resigned and you will be removed from the payroll. As of the 2nd of November, 12 weeks have passed. That's more days than even FMLA or NJFLA allow for her to take. What should we do?” – Crystal, Tennessee

What if a worker disagrees with our provider's diagnosis?

11/24/2014

Q: “One of our employees said he twisted his knee at work. The supervisor sent him to Concentra, where the doctor took X-rays and recommended he take six therapy treatments. The employee said he thought he had a torn ligament and wanted an MRI, but Concentra does not have MRI equipment. Since the employee refused the treatment suggested by the doctor at Concentra, do we have the obligation to send him to a hospital that can take MRIs?” – Vincent, Texas 

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