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Ask the Attorney Archives

What’s the problem with having applicants sign a ‘declaration of no criminal activity’?

Q: “We recently started making provisional offers to applicants, and we give them a form to sign that is a ‘declaration of no criminal activity.’ The reason we are doing this is because the hiring process takes so much longer when an applicant’s criminal background comes back ‘under review.’ So now, after we make the provisional offer, if the report comes back ‘under review’ we can still move forward with them and as long as it comes back clear or with items that are within our state regs (we are an elder care company), there should be no problem. If someone comes back with something on their record that we are not able to accept, is it okay to tell them we are rescinding the offer based on that, especially as they signed the form stating they had no criminal activity? Could there be consequences to the organization?” –Anonymous, Pennsylvania

Our handbook states we pay for holidays—but what if one falls on a weekend?

Q: “If we state in our handbook that we recognize a specific holiday as entitling employees to a paid day  off, and that holiday falls on a weekend when we don’t normally work, are we obligated to pay the employee for that holiday if we don’t give them the previous Friday or the following Monday off?” – Donna, North Carolina

The truth of a worker’s criminal past has come to light. What now?

Q: “I recently hired an employee whom we have just discovered was involved in an incident in 2017. This came out when he told us he needed to go to court. It turns out he was arrested for a shooting that left a teenager seriously wounded. He was booked on two counts of reckless endangerment. Should we ask him if he has been convicted?” –Patti, Alabama

In New York, how do we pay restaurant staff for changing duties?

Q: “I’m in the restaurant industry in New York. My client has part-time workers that typically work four hours in the morning at one position. There are many times he needs additional help in the afternoon and asks them to stay. The afternoon job is at a lower pay rate. Is this considered a new job and therefore comes under the 3/4 hour minimum pay rule? What about the reduction in pay for the afternoon work? Sometimes they may work one or two hours in the afternoon position. Neither of these positions are server staff.” – Ken, NY

Does having an LLC automatically make someone an independent contractor?

Q: “Is our company safe to classify and pay someone with an LLC as a 1099 independent contractor, or will the IRS also apply the 20-factor test to an incorporated entity? In an LLC enough to classify them that way?” – Kary, Florida and Sandy, Florida

Can we send applicants to a drug screening before a job offer is made?

Q: “The company has been sending people at the time of their job application to a drug screening. There has been no conditional job offer extended. They may send four people for the same job and then hire one of them, assuming every one of them passed the screening. I am telling them that this is illegal, and that we need to have made a conditional job offer or else we are asking for medical information from people who have no employment connection to us. Are we breaking the law?” – Kary, Florida

May we withhold an ex-employee’s sales records?

Q: “An ex-employee has asked to receive a copy of their sales report for the last month they were employed. This report lists the names of the company’s customers as well as the sales to those customers. Would the company be obligated to give this employee a copy of their report as was requested?” – Marchia, Oklahoma

How much drug testing is too much for a worker who’s tested positive?

Q: “An employee in a department that participates in random selection testing confessed to using illegal drugs over the weekend. His drug test came back positive. Can we require additional testing over a period of time due to the dangerous nature of his job?” – D, Kentucky

A new employee is often ill. Can we enforce a leave of absence?

Q: “We have an employee who’s been out for medical reasons for a couple of weeks. This is the second time she’s been out within the space of a few months. She is fairly new and we’ve tried to be as supportive as possible to her and her medical needs. I am now recommending she take a leave of absence for 30 days so that she can fully recover before coming back to work (should she be fully recovered before the LOA expires, she could come back earlier). She doesn’t want to take the LOA for financial reasons, and instead wants to come back on modified duty. Can we insist she take a LOA? Her job is essentially sitting at a desk and driving to clients’ homes when required, so I’m not quite sure what ‘light duty’ for her particular job would entail.” – Kosko, Pennsylvania

During employee’s FMLA leave, we found out the job is better done by a contractor … can we terminate?

Q: “Our delivery driver went out on FMLA leave, so we jobbed out the deliveries to a contractor. We discovered that using the contractor saves us a lot of money because we don’t have the expense of maintaining a delivery van or keeping someone on the payroll. What do we do when our driver—who doesn’t have the skills to work any other job in our company—returns from FMLA leave?” – Ben, Virginia