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Ask the Attorney Archives

How do we navigate the personal pronoun conundrum?

Q: “We are a small nonprofit, with fewer than 50 full-time employees. Are we required by law to include preferred pronouns in our organization’s email signature template? Are employees forced to refer to their binary colleagues by the preferred pronouns? It becomes more stressful in communication (especially auditability) when an employee identifies as binary and their preferred pronouns are “they/them,” and the employee consistently reminds everyone. I recently ended a meeting because it was unproductive because of these personal pronouns. It was difficult for every to stay on task.” – Phyllis, Texas

We may have found evidence of drug use on the job–what now?

Q: “I am an HR Manager at a big nursery with hundreds of greenhouses, and we provide our employees with portable toilets. It was brought to my attention by the cleaner that he found a cut-up soda can and a syringe in one of the potties. I have never encountered any drug use at our nursery, and I am not sure how I can handle this situation.” – J.

Coronavirus: Is this employee a ‘long-hauler,’ or abusing leave?

Q: “An employee said she had Covid-19 back in the summer. She was out of work for three months. We paid her. She came back with a note saying she could return to work part-time. She said it would only be a few months. Since then she is always out sick. She has just moved to full-time work because she was set to lose her benefits and paid time off only working part-time. She now claims she has Covid-19 again. Can I request some form of proof? What are our rights as an employer?” – Nikkie, Florida

What can we do about employees working overtime without authorization?

Q: “If we notify employees that they are not to have overtime, do we have to pay them if they work anything over 40 hours? We advised that any overtime must be approved prior to any time being worked; however we have employees who are choosing not to adhere to the 40 hour limit. Also, can we legally change all clerical staff to salary positions?” – Krista, Connecticut

Has this employee provided notice of FMLA leave ‘as soon as possible and practical’?

Q: “We have a policy that says you must provide one hour’s notice of your absence prior to the start time of your shift or disciplinary action will result. We have an hourly (union) employee whose start time is 3:00 pm and who called in at 2:18 pm for FMLA leave. Are we still able to write them up due to the policy infraction even though they called in for FMLA purposes?” – Randy, Iowa

What to do when a worker is suddenly sent to jail?

Q: “We have an employee who we just found out violated their probation and has been sent to jail. We don’t know what the violation was for. The employee’s first court appearance is this Monday. This employee has had some attendance issues and, prior to this information, was already being written up for an attendance issue. What should I as an HR rep be considering? – Lindsay, North Carolina  

Fitness for Duty tests: When and how do we use them?

Q: “We currently do not have a Fitness for Duty policy in our handbook, but believe one of our employees needs a Fitness for Duty test. Do we first add this policy in our handbook, before we approach the employee?” – Lyris, California

Should our office keep simple medicine out of staff’s hands?

Q: “Our office keeps several over-the-counter medications on hand if someone in the office should have a headache, indigestion, etc. But now I’m wondering if this is a good idea because of possible liability issues. Can you tell me if we’re safe in keeping a drawer of these meds if someone should ask for them?” – Linda, Oregon

How do we address, and prove, gender pay disparity?

Q: “How can someone prove they are being paid less because they are a woman? What would the steps be to get an increase in pay for a woman in order to more closely match a male co-worker?” – Dawn, Oklahoma

How can we save money by hiring directly as opposed to using a temp agency?

Q: “We use a contract temporary labor service. Due to the need to lift pay rates to attract employees, we are considering hiring temporary employees directly. In Texas, what is the maximum time we can hire someone for without providing full or partial benefits, or being responsible for an unemployment claim? What is the minimum time before an employee can be released, and then be rehired with the clock restarting?” – Jamie, Texas