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Ask the Attorney Archives

Must we keep physical I-9s even if they’re stored digitally?

Q: “We are switching to an HRIS system. If we e-Verify our new hires, and record the e-Verify system’s case number in the new HRIS system, can we safely shred the original document and use that case number? How can we digitize this function, if we cannot do that? – Kary, Florida

Are we creating a problem by giving a temp a pass on our dress code?

Q: “We have an employee hired through a temporary agency who wore a shirt to work that said “Caliente.” I know this means hot. I think it’s inappropriate for her to wear this shirt in a business setting and if she were an employee, I would probably tell her that. However, since she’s a temp, but likely to become a permanent employee, what should I do? – Lee, Texas

How long should we retain documents in an employee’s file?

Q: “Should I apply a retention schedule to individual documents in an employee’s file, or should I keep everything until 7-10 years after they are no longer an employee?” – Maren, Virginia

What action can we take when an employee is hospitalized for mental health issues?

Q:  “We were informed that an employee in good standing was hospitalized for [mental health issues]. We have placed her on suspension until we can gather additional information about what is occurring and her ability to safely complete her job duties. She had previously disclosed a history of mental health issues, but had provided a clearance from a medical doctor stating that she was stable and able to work. Is this a qualifying event for FMLA? Are we able to terminate her employee because of the assumed risk to safety to herself and those around her in the event of another episode? Any information/guidance is appreciated. – Anonymous, Pennsylvania

When is it safe to terminate a ‘No-Call No-Show’ if a workplace injury is involved?

Q: “If an employee claims an injury and requests to see a doctor but then becomes a “No-Call No-Show,” do I have a right to terminate this employee? He has been missing for about three weeks. I have reached out through phone and mail and have received no responses back.” – Kat, Tennessee

Can we require women to wear a bra?

Q: “Can we require women to wear a bra?” – Marcia, Ohio

How do we revise our PTO payout policy in midstream?

Q: “Over the past few months we have had several employees voluntarily leave our employment. According to Oklahoma state law, we are not obligated to pay the employee for unused PTO hours; however, according to our employee handbook, the employee will be paid for unused PTO hours. Can we change our employee handbook, with proper notice to all employees, to state that the company is not obligated to pay resigned employees for unused PTO hours? Currently employees accumulate PTO hours on a yearly basis. Can we change our PTO policy to allow employees to accrue on a specified basis, i.e. hourly, daily, monthly instead?” – M., Oklahoma

Who has the right to know what’s in a personnel file?

Q: “Do employees have a legal right to information an employer keeps in its personnel records? Or should Human Resources be the only department with access to this information (except for Legal when required for compliance reasons)?” – Maren, Virginia

What is the most efficient method to deal with prolonged file retention?

Q: “An employer is seeking to transition from paper to digital employment files. They have a retention policy that is based on the type of each document, rather than a standard policy that permits them to retain everything for a set number of years following termination of employment or a period of time afterward. Their policy requires them to add metadata to each document so that documents that reach their retention date can be purged automatically by the system. “They would prefer not to increase the staff workload by requiring them to tag individual documents. Currently, they have two team members spend several weeks a year reviewing every employee file to purge documents that should be shredded. What is best practice here, and what have you seen other companies do to comply with the file retention guidelines of multiple laws and regulations?” – Maren, Virginia

Can we adjust salaries downward because of a lower cost of living?

Q: “An employee is moving within the company from the California, Ventura area to Phoenix, Arizona. When discussing compensation, would it be discriminatory to remove considerable pay after relocating? For example, if the employee is making 64k and we lower the pay by 17% because of the lower cost of living?” – David, Arizona