ASK THE ATTORNEY

What to do if a raise was promised, but it didn't happen?

06/20/2017
Q: “Upon occasion I have come across an issue where a manager communicates to an employee in writing that they will receive a specific increase to their base salary, but then the organization is not able to come through. Does the employee have a legal remedy in this scenario, and other than ‘forcing’ the employer to pay whatever amount is owed, are there additional risks the organization faces if they don't deliver on what was committed to the employee?” – Lara, New York

How much can we ask about an employee's driving record if their job isn't to drive?

06/20/2017
Q: “Can we require a motor vehicle report and proof of insurance from employees who frequently or occasionally travel in their own vehicles between branches, go to meetings or travel to events after regular work hours?” – Dennis, Ohio

How much about an ongoing investigation can an employee share with colleagues?

06/20/2017

Q: “An investigation was conducted involving a charge of sexual harassment, and it was decided the allegations were unsubstantiated. Several days later it was reported that the victim openly discussed the investigation and findings with employees. The victim also stated that the services of an attorney have been secured and the company will be hearing from the attorney. At this point, should human resources meet with the employee regarding what was reported? Is she being disruptive? Should our legal department wait to hear from an attorney?” – Anonymous, Virginia

Money's missing from the till--what are our discipline options?

06/05/2017

Q: “On several occasions at our medical center, when we collect the envelopes in the morning with the cash from the night before, some cash is missing. At the end of the shift, the registrar places the cash in a locked safe. Can we deduct the missing amount from the paycheck of the registrar who was responsible to collect the cash and store it in the locked safe?” – Mendel, New York

Employees coming back to work after FMLA leave: How do we handle these two cases?

06/05/2017

Q: “I have questions on two FMLA cases:

1. An executive manager (a 'key' employee) had rotator cuff surgery. She is a 24/7-accountable, exempt employee. FMLA leave was offered, it was approved and it required four weeks of continuous leave. The manager returned after two weeks. Her physician released her with minor restrictions. She has been having therapy for the shoulder but did not take time off and has not been offered intermittent FMLA leave. At what point should we turn it into intermittent leave, and does her therapy time count towards this leave?

2. Another executive, but not a 'key' employee, broke her wrist and was out three days. FMLA paperwork was sent, but she returned with a doctor’s note to the effect that she was released with some restrictions. She never provided medical certification and she has not missed work except for therapy. Is her FMLA claim denied since she returned after three days and provided no certification paperwork, just the physician’s return-to-work note?” – DEW, Ohio

How do we pay exempt employees for partial days?

06/05/2017
Q: “At a payroll seminar, it was stated that an exempt employee must take vacation time in 8-hour segments, and if they work even a half hour during that day, they must be paid for the whole day. However, it was then mentioned that if you want the exempt person to be able to take vacation time in 1-hour increments, your policy must state that. Is this true? Does the exempt vacation policy need to be the same as the nonexempt?” – Sandy, Nebraska

When a company moves from the public to the private sector, what are the most immediate HR concerns?

06/05/2017

Q: “What are the first three action items that HR should tackle when an organization has been acquired by another company? The organization was once a governmental agency; it is now transitioning to the private sector.” – Anonymous, Virginia

Can a worker be both exempt and nonexempt?

05/23/2017

Q: “We have an exempt employee who sometimes works weekends in a different role, which is nonexempt. Should the exempt employee be paid straight time or overtime?” – Natalie, Virginia

Is it legal to fire someone if a criminal record is revealed?

05/23/2017

Q: “We hired an employee, but found out he has a criminal record. What is the best way to handle situations like this? Is it legally OK to terminate someone for having a criminal record?” – Anonymous, California

What makes me technically an 'employer'?

05/23/2017
Q: “I am a sole owner of a medical practice and (excluding myself) currently have one employee. I would like to know how Pennsylvania’s definition of an employer as “any person employing four or more individuals within Pennsylvania” impacts me. I would also add that I previously employed three other people who are no longer with the practice. If I do not meet the definition of employer in Pa., what is my status?” – Valerie, Pennsylvania

The doctor says he's OK to work, but his behavior says otherwise--what can we do?

05/09/2017

Q: “An employee drank heavily after work and at his home, and fell down a flight of stairs. It took him a couple of days to go to the doctor, where he was found to have swelling in his brain. He has now returned to work with no restrictions from his doctor, but he is exhibiting mentally challenged behavior. What are our options? I am asking our office supervisor at that location to document everything for the time being.” – Patricia, Wisconsin

Can we terminate for the use of medical marijuana?

05/09/2017

Q: “A newly hired employee provided us with a doctor’s note stating that he is approved for the use of medical marijuana. During his pre-employment, he tested negative for use of illegal drugs. What are our rights as an employer? Are we required to accommodate the use of marijuana on or off duty? Can we terminate the employee for the use of medical marijuana?” – Cecilia, California

What to do when employees can't afford the health insurance we offer?

05/09/2017
Q:  “We offer employer-sponsored health insurance, but many of our employees do not make enough money to pay their portion of it. After they pay their child support there is not enough left over to pay the premiums. Can we tell them they do not qualify and must decline insurance, or are we forced to continue paying it for them?” – Melissa, Texas

Are there privacy issues when we post staff information on our intranet?

05/09/2017

Q: “There are times when we need to reach a staff member while we're open but the employee is not on site. We would like to post all staff names and cell numbers on our homepage so they would be accessible only to our staff. Can we do this?” – Mendel, New York

What to do if a worker plays a game of cat-and-mouse to avoid being terminated?

04/17/2017
Q: “We have an employee who performed very poorly. Numerous staff members complained about his performance and on many occasions our administrator discussed these issues with him. We posted his position in order to find a replacement for him. In the interim he called in sick. We don’t know if this was a trick to force us to keep him. Now he’s requesting to return to work. Since he was still within the 90-day trial period as spelled out in our Personnel Policy Handbook and his position has been posted to find a replacement, are we required to take him back, at either his current position or another position?” – Mendel, New York
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