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


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?


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?


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?


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 

Why should we bother having employees sign their time cards?


Q: “Is there merit to having employees sign their time cards? Is it important to have a certification that the hours shown represent an accurate accounting of time worked? Is there any type of liability if the employee simply uses an automated system of hand or card swipes and never 'approves' their time, either automatically in the computer timekeeping system like ADP or in writing on a printed timesheet? What might be the issue if this does not happen?” – Kary, Maryland

How many doctors' appointments does it take to become an FMLA situation?


Q: “I have an employee who takes numerous doctors’ appointments not only for herself but for her children (over 18). Should I assume this is an FMLA situation and have her complete the paperwork? If her condition is not certified by a medical provider, can I restrict or limit her sick time use?” – Anonymous, Wisconsin

Can we ask employees to keep mum about their bonuses?


Q: “Our company is handing out bonuses only to those who we believe deserve it. Can we ask them—not  demand them—to 'keep it quiet' as we hand them their checks?" – Christopher, New York

Can we keep an employee out of our office for a time due to Ebola concerns?


Q: “We have an employee who is traveling to Nigeria for a family gathering. Even though Nigeria is Ebola-free at this time, we are considering requesting that the employee stay out of the office for 21 days upon return to eliminate panic among our employees. Due to the nature of her job, she cannot work remotely from home. Do we legally need to pay her for this time?” – Carol, Florida

Employee won't take a drug test based on reasonable suspicion--OK to fire?

Q: “Can you terminate an employee who is receiving workers’ compensation if he refused a reasonable-suspicion drug test?” – Norma, Tennessee

What is our recourse when a worker withholds medical information?


Q: “One of our general managers in Oklahoma hired an individual to lift metal parts off a cutting table to place on pallets. We found out that the new hire is suing his former employee for an alleged back injury. Can we terminate the employee for not letting us know he had a back injury? He said that he was qualified to perform the work and has been lifting the parts for a week." – Vincent, Louisiana

Is this employee a victim of retaliation, an FMLA violation ... or both?

Q: “A friend of mine was out on FMLA that turned into short term-disability. She kept in contact with her employer, letting them know what was going on. A month before her return she asked if she would still have a job and the email back said yes. The day she went back to work, they released her and said that it was due to restructuring. The girl who replaced her is still doing her job, and my friend has proof (which she had previously showed HR) that this girl is a racist, and they swept it under the rug. We think she was let go because she brought that to their attention. Does she have any recourse against the company?” – Robin, Missouri

How do we get this employee to return company equipment after resignation?


Q: “An employee in Texas has resigned and has not returned his company equipment (phone/computer), credit card or key. His final paycheck is not due until the next regular payroll, but each time he is approached to return the equipment, he makes excuses and keeps asking for the CEO to call him. I know we cannot hold his final paycheck, but what can we do to ensure he returns the company equipment?” – K., Texas

What does 'at-will employment' really mean?

Q: “Our managers and supervisors believe that they can terminate an employee at any time by referring to their ‘at-will’ status. Will you please explain from the legal perspective what ‘at-will’ actually means? For example, I believe you can truly fire at will unless you violate one of the many laws regulating/protecting employee behavior such as FMLA, ADA and the like?” – Terry, New Jersey

What's the status of the DOL's new wage and overtime protections for home care workers?


Q: “Our agency provides trained staff to work with individuals with intellectual disabilities in their homes and out in the community. We just saw the Department of Labor announcement regarding a time-limited non-enforcement period for mandatory overtime pay for home care workers, a policy that was scheduled to go into effect on January 1, 2015. Do we still have to start paying overtime for our employees starting January 1, or can we wait?” – Janet, North Carolina

Does a home care worker with possible disabilities need to be accommodated?


Q: “We have a group home for adults with developmental disabilities (whom we refer to as consumers). We hire Direct Care Staff to work with the consumers on daily life skills, hygiene, meals, distribution of medication and community involvement. I hired a young woman who on the first morning of orientation said that she was bipolar, and had some anxiety issues and some learning disabilities. She will many times be the only staff member working with the consumers in our group homes. What happens when something sets her off or she is having a bad day and we do not realize it? Can we tell her that this position may not be a good fit for her?” – Valerie, Texas

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