ASK THE ATTORNEY

Employee's medical condition might be a real safety concern--can we terminate?

08/25/2014

Q: “We recently hired a new employee, who on the first day of orientation publicly announced that she had a seizure disorder. We operate a facility that works with vulnerable adults, and the employee would have direct contact and be required to drive. What, if any, options do we have with regard to discharging the employee because of the incredible risk potential for the client's safety, without discriminating; or figuring out accommodations (the employee has not asked for any to date) for continued employment?” – Martin, Minnesota

Health benefits: Are we a Medicare Secondary Payer?

08/25/2014

Q: “I am looking for the rules in Medicare Secondary Payer rulings that apply to a large employer that becomes a less-than-20-employee employer, and when it would qualify to be the secondary payer." – Pam, Ohio

What to do when a just-employed worker is suddenly out with a serious illness?

07/28/2014
Q: “We purchase commercial and single-family buildings and renovate them. We also manage the properties and in some cases, keep the staff and hire them under our payroll. We submitted a job offer to a man who will be doing patrol security at one of our properties. His start date was to be July 15. His compensation was an offer to live rent-free from month to month. We just got a call that he had an aneurysm and is in the hospital for an undisclosed amount of time. It’s terrible news for anyone to hear and for anyone to go through. However, how should we handle this? Continue to pay rent? Terminate his employment? Hire someone in the interim?” – Nichole, California

Our designated smoking area still isn't isolated enough for some--now what?

07/28/2014

Q: “We currently have a smoking/break area outside our building in a ventilated area. It works for what we need. Our problem is that the smoke seems to be drifting into the ventilation system and ending up in the office of someone who is super-sensitive to smells. Knowing there is a problem with smoke/secondhand smoke, what are our options in our state to move the smokers to their vehicles, etc.? Or do we need to provide a place for our smokers onsite?” - Paula, Nebraska

Must we base benefits on the number of hours an employee works?

07/28/2014

Q: “We are under 50 employees, so we aren't mandated to provide healthcare to 30-hour employees. However, we have been providing health insurance to our 30-hour employees (they all happen to be a manager status). Can we base benefits on employee class irrespective of hours, or if we give any 30-hour employee benefits would we need to do it for all of them? The question relates to our paid interns that we move to a 30-hour status.” – Greg, Florida

How much of the FLSA applies to nonprofits?

07/28/2014

Q: “Do the requirements and case law around the FLSA. exempt versus non-exempt status and overtime payments pertain to nonprofits? We spoke with an attorney who says that nonprofits are not under this regulation, which I have never heard. I have always been told that while nonprofits may be audited less frequently than for-profit businesses, they are still required to comply with all the FLSA laws. Which is correct?” – Kary, Maryland

What are the nuts and bolts of hiring a foreign worker?

07/28/2014

Q: “We are considering hiring a lady from Canada to sell our products in Canada. We have no idea where to start the process of hiring a foreign worker. Suggestions?” – Debbie, Texas

What should we do about 'negative dilute' drug test results?

07/14/2014

Q: “We currently have employees who keep getting results of ‘negative dilute’ during drug tests. Our policy is to not accept the result and to retest. Can we require the retest to be an observed collection?” – Ross, Ohio

Can we compel employees to work before or after a holiday to receive its bonus pay?

07/14/2014
Q: “We want to add a new addition to our policy regarding holiday pay that states the employee is required to work either the day prior to, or the day after a holiday in order to receive pay for that holiday unless a previous request for time off was submitted and approved prior to the holiday week pay period. Is this something we can add, as shown below?” – Bryan, California

Personnel files--how long must we keep them?

07/14/2014
Q: “How long do we need to keep personnel files? Also, can we keep them in offsite storage as long as we want?" – JMDG, New Jersey

Should temp workers sign a different employment agreement than other staff?

07/14/2014
Q: “For temporary employees, do we need to have a separate employee agreement with a signature page if we already have an employee manual with a signature page?” – Joey, California

Can we compel workers to divulge their troubles with the law?

07/07/2014
Q: “Can my client put wording in his employee handbook requiring the disclosure of arrests and/or convictions?” – Susan, Michigan

How do we assist this terminally ill employee in getting benefits?

07/07/2014
Q: “A 26-year-old employee learned a week ago that she has cancer that is terminal. She knows that she cannot work any longer. The company is very small and does not offer health insurance, and she is not covered on an individual policy. Is it a correct protocol to “lay off” this employee so that she may receive unemployment and other possible benefits such as Medicaid to financially assist with the remainder of her illness?” – Sue, Nebraska

Does the lack of a written employee-monitoring policy prevent us from disciplining?

06/30/2014

Q: We have five drivers. We told them verbally when we hired them that we may use GPS from time to time to track their activities. This is not in writing, not in the handbook and there is nothing they have signed acknowledging this information. However, we used a GPS device on a driver this past week and found out that he parks his truck sometimes for as long as three hours and clocks this time as working time. What can we do? Can we discipline him for this letting him know that we are aware that he is stealing time? Can we terminate him for this? – Kerri, South Carolina

How do we recover the value of missing equipment upon separation?

06/30/2014

Q: May I deduct value of equipment not returned by my employee from her final expense reimbursement check? I know I cannot deduct this from her final paycheck. – Margaret, Arizona

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