ASK THE ATTORNEY

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

When can we request a medical examination for a troubled employee?

04/17/2017

Q: “Are there any legal implications if you request a fitness for duty exam for an employee who has exhibited unstable behavior at work? This behavior has been reported by several of his co-workers.” – Natalie, Virginia

Can we charge employees for lost access cards?

04/17/2017

Q: “We have access cards to enable us to get into the building through our employee entrance. Cards are given at time of employment free of charge, and a form is signed to the effect that if the card is lost, there is a $25 replacement fee. Also, if the card is not returned at the end of employment, there is a $25 fee. Is this legal?”  – Andrea, New York

What do we do for an employee who needs leave--but just doesn't meet the qualifications?

04/14/2017
Q: “What recourse is there for a female employee who is not eligible for FMLA but who wishes to take a leave of absence to be with her daughter because the daughter is experiencing a difficult pregnancy? The Personal Leave of Absence Policy will allow up to 30 days’ absence under special circumstances for an employee with at least one year of employment who has exhausted all PTO. Unfortunately, the employee has only been with the company for six months; therefore, based on company policy, she is not eligible for the leave. Any suggestions?” – Natalie, Virginia

Is this level of dishonesty enough to warrant a legally safe termination?

04/14/2017

Q: “What are the options for disciplining an offsite employee found to be taking unexcused time from work, and making false claims on his expense reports and customer visit logs?” – Anonymous, Michigan

Worker loses the company money: Can we ding the paycheck?

04/14/2017
Q: “If an employee causes a monetary loss to the organization, can we deduct that loss from the employee’s paycheck? All our employees agree in writing that they will adhere to our Personnel Policy Manual, which states: 'Loss of Revenue: If any staff member, whether full-time, part-time, temporary or seasonal, causes a loss of revenue because of negligence, it will be at the discretion of the Executive Office, based on the severity of the negligence, to determine the consequences of the infraction(s). The consequences include but are not limited to: written warning, probation, loss of one day vacation or paid holiday, the staff member being held liable to compensate the employer for one half the monthly cost, or the full cost of his/her health care. A consequence of negligence may also be dismissal.'” – Mendel, New York

Minnesota's drug testing laws are so complicated! How do we craft a workplace policy?

04/14/2017

Q: “We are a construction services firm that employs about 170 people, both office and field. Our employee handbook includes sections on drugs and alcohol, but we do not have a formal drug and alcohol testing policy. I am currently working on this so we can get it out to all of our current employees and also include it as a part of our conditional offer of employment. I have reviewed Minnesota Statute 181.951 and 181.952. Is a template or sample drug and alcohol testing policy available that I could use for reference?” – Sandy, Minnesota

Do exempts and nonexempts each need their own employee handbooks?

03/21/2017

Q: “For organizations with both exempt and nonexempt populations, is it permissible for an employer to have different time off policies for the respective populations? For example, to design an unlimited vacation policy for the exempts and a paid time off policy for the nonexempts? And if yes, would it be advisable to have two different employee handbooks by classification where such policies would be different, or maintain one handbook with the different policies identified by classification?” – Crystal, Minnesota

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