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Ask the Attorney Archives

Employee wants to come back after termination—what to say?

Q: “What can a supervisor say to an employee who was terminated because they would not accept a suspension, but now wants their job back. The company does not want the employee reinstated. What is his supervisor allowed to say?” – Richard, Minnesota

How would this baby-bonding time situation be covered?

Q: “A client (over 50 employees) hired an employee in March 2018. His live-in girlfriend had a baby in July 2018. He has requested intermittent FMLA starting in February 2019. He wants to take every Thursday and Friday off as FMLA to care for his daughter so his girlfriend can go to school. Does this qualify as FMLA? I understand that intermittent FMLA may not be taken for the care of a newborn. Would New York’s Paid Family Leave be applicable?” – Kenneth, New York

What are the sick pay rules in California?

Q: “My wife has a small business with seven employees, three of whom are temporary. We pay four sick days a year after they have been with us for one year; we also pay four holidays and one week of vacation. Do we have to pay temporary employees the same?” – Anonymous, California

What are the pay rules for these unusual waiting times?

Q: “In cases of waiting at a hospital (i.e., work-related injury) or filing a police report (not on work premises, i.e., work-related theft), should an employee be paid for that time?” — Anonymous, Illinois

How does comp time work in Pennsylvania?

Q: “I am confused regarding the FLSA laws regarding comp time for nonexempt employees in the state of Pennsylvania. Currently we have been giving nonexempt staff the option of getting paid overtime or taking comp time (if it’s in the same week). However, they are not taking one and a half times the amount in comp time, which doesn’t appear to be right. Now I’m reading that only public or state-run companies can offer comp time in the state. Is this right? Also, if we can offer the comp time, how much can employees accrue, and how long do they have to take it?” — Anonymous, Pennsylvania

What is the ADA compliance threshold?

Q: “For ADA issues, are we accountable, as we have fewer than 30 employees?” — Richard, Minnesota

How do we handle these PTO issues to comply with the FLSA?

Q: “Regarding the FLSA, a salaried exempt computer professional puts in for 16 hours vacation but ends up with 92 actual work hours for the 80-hour pay period. He/she does not delete the vacation hours from their timesheet, and I am being instructed to still take the vacation time from their PTO bank. Of course, I know that this is not fair. However, is this even legal? “One more FLSA scenario: A salaried exempt employee works 102 actual work hours during an 80-hour pay period. Of course, he/she is paid their regular salary for that pay period. The following pay period, they only work 78 hours. I am being instructed to make them use PTO for the two additional hours to make a full 80 hours. Again, is this allowed under FLSA?” — Donna, New Jersey  

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

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