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Ask the Attorney Archives

Should employee records be stored only with HR?

02/24/2020
Q: “I’ve got a nonprofit client whose Archives & Records Management team asserts that they are responsible for maintaining all employment records based on their “charter” from a parent organization that was written nearly 50 years ago. It is my understanding that the HR department should be the office of record (and that is what it states in their company policy), but the Records office is demanding that they receive the employee records for archival purposes. Employees in the Records office are not HIPAA trained.” – Maren, Virginia

New York City family leave—what about longer absences?

02/24/2020
Q: “In New York City, may we deduct absences for Paid Family Leave, FMLA, maternity or other leaves that are longer than a month from vacation accrual? Policy is for 10 days paid vacation after one year of employment.” – Ken, New York

We paid a worker in advance for a vacation he never took–what are our options?

02/24/2020
Q: “My client’s employee requested accrued vacation leave and was paid for the weeks in advance of the vacation. Then he changed his mind on the Monday of his vacation and came to work for the entire paid vacation. How do we handle his paycheck for the workweeks? Can we deduct the vacation pay from his workweek pay (making sure he doesn’t go below minimum wage)? If not, how can we get reimbursed for the vacation pay? I intend to add a statement to the vacation policy that prohibits employees from working on their approved vacation.” – Ken, New York

What must we reveal to an attorney trying to collect an employee’s debt?

02/10/2020
Q: “Are we required to comply with an attorney’s request for employee status, wage, position, hours, and if currently under garnishment? This came from an attorney with the statement that ‘this communication is from a debt collector and is an attempt to collect a debt.’ What is the state statute regarding employers need to comply? – Judy, Minnesota

Can we lay someone off while they’re on workers’ comp leave?

02/10/2020
Q: “I have an employee that is currently on workers’ compensation leave. He has just been released to light duty. Currently, we are slow and do not have work for him. We have recently laid off some people because we aren’t busy and there’s not enough work. Can we terminate his employment even though he is on workers’ comp?” – D., Arizona

May we terminate if troubling information was seen on an employee’s phone?

02/10/2020
Q: “If an employee in the state of Georgia allows their manager to read text messages on their own phone and the manager reads something that could result in termination, is the employer allowed to terminate?” – Anonymous, Georgia

Have we made enough allowances for this underperforming, but medically challenged, employee?

01/21/2020
Q: “We have an employee who has been prescribed medications for her back and to help her sleep. Over the last year we have had a few incidents where she periodically called in sick for three or four days, has fallen asleep on the job (at her desk), has slurred speech and her writing is not legible. Her work performance is truly suffering. She has admitted the prescriptions were too much for her, and she has seen a doctor to help her change the dosage. We have talked with her about this many times, and we have offered to help her in any way we can. “Unfortunately, it doesn’t seem to be getting better. We think she needs more help, but we also know we can’t make her get it. Six years ago we had a similar situation. She is a recovering alcoholic, and we know this is considered a disability. We want to do the right thing by her, but she needs to do her part. We are considering letting her go. “Can we do this without any repercussions? We have documented everything with notes to her file. She also has a couple of written warnings that state we could terminate if this were to happen again, and it has.” – Jodi, Massachusetts

How does Maryland’s Sick and Safe Leave Act work?

01/21/2020
Q: “We are in Maryland and fall under the Sick and Safe Leave Act. Our exempt, salaried managers accrue PTO. Our PTO meets the qualifications of the Sick and Safe Leave Act, so we do not have an additional sick leave bank for exempt, salaried managers. They use PTO when they have to take the day off for being sick. Is this correct? Or should they not be using any PTO and still get paid for those days they don’t work when they are sick? (They bring in doctor’s notes and all.) – Ami, Maryland

How do we legally terminate an employee contract?

01/21/2020
Q: “An employee’s contract terms include that if either party decides to terminate the contract, a 30-day notice must be given. The employee turns in their 30-day notice as the terms of the agreement states, but the employer doesn’t honor the 30-day notice, telling them the notice won’t need to be fulfilled, making the employee’s last day effective immediately. Does that make the employer obligated by the terms of contract to pay the employee for the duration of notice given?” – Lauren, North Carolina

Must we make accommodations in the case of left- or right-handedness?

01/21/2020
Q: “Our office is set up for someone who is right-handed. It would be impossible to change our patient rooms to a left-handed approach. How do we communicate this to a new clinical person that might be applying?” – Mary Lynne, Minnesota