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Ask the Attorney Archives

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What’s the best way to work an on-call policy?

Q: “We are currently scheduling our employees with an on-call schedule. Employees are expected to keep their phones on and nearby. If they are called in, they are expected to be onsite within an hour of being called in. We do not compensate them for being on-call if they are not called in. Is this legal? Also, if an employee is scheduled for on-call from 1 pm to 11 pm and we call them in at 4 pm and ask them to be in at 5 pm, can they be written up if they show up at 5:10?” – Alexis, South Carolina

Can a leave of absence run concurrently with PTO?

Q: “I have an employee who has requested a Leave of Absence (LOA). He has also requested PTO prior to the date he has requested his LOA. Is there any legal reason in the state of Pennsylvania that I can’t run the LOA and PTO concurrently? I don’t believe it should be an issue, but want to be sure. Our employee is pretty vague about this issue, and it’s very unusual for an employee to request taking PTO as well as LOA but to take them separately.” – Andie, Pennsylvania

There’s no such thing as this type of harassment ‘disclaimer,’ is there?

Q: “We have had some issues with sexual harassment and we have one of our local chapters telling members that as long as they add the phrase ‘I did not mean that sexually’ at the end of a sentence or a touch, etc., that it then does not constitute sexual harassment. I do not believe this to be true. Any insight would be appreciated.” – Anonymous, Nevada

Employee does two jobs for the company—how do we apply overtime?

Q: “One employee, two pay checks. Employee has a full-time, 40 hour-per-week job for which he is paid $13.00 per hour or $520.00 for the week. He has a second job with a different responsibility in the same company and receives a second pay check. He is paid for the second job at $14.00 per hour and works 15 hours in the second job for a total of $210.00 for the week. Shouldn’t he have received overtime pay for the second job of $19.50 per hour or $292.50 for the week? Is there some law that allows this two paycheck situation?” – Anonymous

Are there ‘standard’ benefits for part-timers?

Q: “Our current policy does not allow part-time employees the same benefits as full-time employees. These include sick time and paid time off. What is the standard for part-time employees?” – Yvonne, New Jersey

Is our points-based attendance policy a sound one?

Q: “We have a long time employee who calls in ‘sick’ frequently. She has never produced a doctor’s note for these absences. Our office has now established a more formal attendance policy stating that one absence = 1 point.
  • 4 Points: A coaching session with the employee
  • 6 Points: A verbal warning to the employee
  • 8 Points: A final written warning to the employee
  • 10 Points: The employee will be discharged.
“What concerns should we have about disciplining her for attendance? She is already at seven points. Unfortunately, her team lead has not met with her to go over the coaching session or the verbal warning yet. She plans on having that conversation this week. Knowing how her attendance has been in the past, she will probably collect the other points within the next two months.” – Kathleen, Indiana

Can we continue to employ non-residents during their work permission application process?

Q: “I have an employee whose alien registration expires in about 2 1/2 weeks. He just now reapplied and does not know if he will or won’t be approved or how long it will take. Can I continue to legally employ him even after it expires as long as he has applied? If so, do I need to have a copy of his application?” – Angie, Oregon

Can we make workers use paid leave for immigration appointments?

Q: “Can an organization require employees to use available vacation time to take off for immigration appointments?” – Jeff, Iowa

Are these drug test results sufficient to terminate?

Q: “An employee does a post-accident saliva drug screen, and it shows non-negative for cocaine and it is sent off to an outside testing company. The testing comes back as ‘non-sufficient amount to test.’ Can we send her to get another drug screen, and if positive, terminate her employment?” – Anonymous, Illinois

What can we do about a model employee whose health issues have become a trial?

Q: “We have a 10-year admin employee who has incontinence issues. Other than this, she is and has been a model employee. She is 67 years old, suffers from health issues, is pre-diabetic and uses a walker. She does not have support at home to bathe regularly and she is wearing a diaper to work. We have suggested she get help through her doctor/a referral for home health care. She is not in a position to work from home—we would have to make a position in order for her to do so. This week, the employees that sit near and around her have all complained about the odor. They have added air fresheners, fans, etc. They are not saying anything or talking about her. They all feel sorry for her. The employee is immune to the odor, as having used a c-pap device, she can no longer smell. The employee is kind, gracious and in the past when this has happened, she is genuinely embarrassed. Her supervisor would like to suggest that she have her doctor refer her for disability. Every day is a struggle for her to even get to work. We are at a loss. I do not want an age discrimination claim, a harassment claim or anything of that sort. I would like some guidance on what we can possibly do for her?” – Beth, California
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