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Ask the Attorney Archives

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

Have we provided enough options for religious accommodation?

Q: “An employee is requesting religious accommodation for Wednesday night prayer study. The employee works at a unit that has different operating hours than the larger units. It is also staffed with fewer people. The operating hours require full time employees work 10:45-7:15 for an eight hour shift, Monday -Thursday. Fridays and Saturdays are open until 5. Consequently, we are unable to accommodate every Wednesday night off without hardship. What we have to offer as accommodation is flexible scheduling: The employee may, with supervisor permission, switch another day with a co-worker. She could also request to be scheduled every Friday and Saturday and have off on Wednesday. An employee may also schedule vacation time on those Wednesdays to attend the prayer study, or apply for jobs at different units that may have additional flexibility. Do these options reflect reasonable accommodation?” – Anonymous, Ohio

How do we resolve this fine line between vacation leave and FMLA leave?

Q: “We have an employee who has been approved for intermittent FMLA leave to care for his mother who lives in Michigan. (He has provided the medical certification.) In order for our plant to run efficiently, we only allow a limited number of employees to be on vacation at one time. Our vacation year runs from January-December and employees who do not use their vacation days lose them. This particular employee hangs on to his days (at the moment he has 14 left). He wants off the week of Thanksgiving and the days between Christmas and New Year’s, but was denied because other employees have already scheduled vacation for that time. Last year he did the same thing, and then the week before Thanksgiving he told us that he needed to use FMLA for Thanksgiving week. Can we prevent this from occurring again?” – Gayla, Alabama

What if a worker demands to know the reason for their termination?

Q: “We fired an employee without giving a reason. The employee is requesting the reason in writing. Do we have to comply? Also, we just learned that the new supervisor of the employee never met with the employee to discuss the employee’s position description or the supervisor expectations. The supervisor issued the employee a corrective action. In addition, the employee filed a complaint against someone in senior management. The complaint was never investigated. The employee was terminated the next day after filing the complaint. Is there any liability on the agency?” – Anonymous, Virginia

Employee doesn’t get the promotion, then has to train the new hire: Is there an equal pay issue?

Q: “A male manager retires and his female assistant fills in while a search for his replacement is made. She apparently covers the job adequately in the absence. The company hires a young male (an MBA) to replace the manager. He is hired at a salary higher than hers. She wants equal pay to her manager, as she is basically training him. Is this an FLSA/discrimination issue? Is the company mandated to give equal pay?” – Anonymous, New York

Can we move paid hours around to fill in gaps in an employee’s schedule?

Q: “Our company gives bonus time for hours worked over 48 weekly. Can this time that they have already earned be used to fill in time lost? For example, a superintendent has 30 hours banked of bonus time. They worked 28 hours the following week; would it be legal to take his bonus time to bump up hours worked? He is an exempt employee.” – Anonymous, North Carolina