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Ask the Attorney Archives

Is someone working this informally still a contractor?


Q: “If we have someone who posts funeral notices on cars in a parking lot, would this be considered contract labor? If it is, does this person need to provide us with a certificate of insurance in the event she would be hurt while performing this task?” – Monte, Texas

Are we safe in ordering drug testing based on a tip?


Q: “One of our employees who was recently terminated mentioned in an exit interview that they know of other employees who have marijuana in their luggage when traveling for the company. Our company requires that employees drive to job sites and stay in a motel for a few days while doing the job. The employees travel in our company cars. As a result of this claim, we would like to do drug tests on all the field employees on a day when they come into the office for open enrollment. Also, we would like to search the vehicles that are leaving town to make sure there are no drugs in the trucks. Can we search the luggage and backpacks that are in our vehicles? Do you have any concerns about drug testing all field employees at one time? We have a drug policy that states that we do drug testing pre-employment, and may do post-accident or randomly if suspicious (we have not been consistent with this).” – Cristy, NC

Can we ask for proof of paternity?


Q: “An unmarried couple work for us. The woman is pregnant. She is not eligible for FMLA leave based on her part-time status. The father, however, is eligible and is requesting FMLA leave. Is there any requirement in the regulation that the non-pregnant partner provide proof of paternity? Can we ask for that type of certification?” — DEW, Ohio

How long does an employee have to turn in a doctor’s note?

Q: “Can doctors’ notes be turned down? Our employee went to the doctor and was taken out of work for medical reasons. The employee received points per our attendance policy for those two days, but neglected to bring a note supporting the medical leave. The employee called the doctor’s office and the doctor faxed over the medical certification supporting the absences as medical. The supervisor does not want to accept the medical note, though, because it was not submitted when the employee returned to work. We have guidelines that state if a medical note is not turned in when an employee returns to work, the note will not be accepted. Are there any legal ramifications?” – Anonymous, Virginia

How can we legally inquire about an applicant’s attendance record?


Q: “Is there a way to ask an applicant in an interview about their attendance without violating the ADA or FMLA? Can we ask about non-medical absences that were unplanned?” – Cristy, North Carolina

If they’re not returned, can we deduct the cost of necessary garments from a final paycheck?


Q: “We are planning to require staff in one of our facilities to wear scrubs. We are providing the first couple of pairs and then requiring them to be returned upon leaving the company. Are we allowed to deduct the cost of the scrubs from their final paycheck if they do not return them? Also, is it legal to require them to sign a statement prior to providing the scrubs stating that their final paycheck will be deducted the cost of the scrubs if they don’t?” – Angie, Minnesota

Can we require that paid time off benefits be used for sick days?


Q: “Can an employer require an employee to use PTO benefits when calling in sick?” – Jeff, Iowa

What right does an employer have to workers’ passwords?


Q: “My supervisor has asked me to put something in a manager’s reference manual I have put together. It has to do with managers asking employees for their computer passwords. I believe this to be illegal. Is it? Can I be fired for not obliging with this request?” – Cindy, Missouri

Does OSHA require we have a first aid kit?


Q: “I know that certain industries are required by OSHA to have certain First Aid supplies, and sometimes even a trained employee, on site. But when it comes to a regular office, is there any possible legal liability if there’s an accident and we don’t have anything like that on site, not even a standard First Aid kit? Does the law say we have to keep anything at all on hand?” – Gina, Montana

Are offhand comments about this employee’s dress cause for concern?


Q: “I work with a manager who just gave a performance review to one of his staff (an administrative assistant) in which he gave her high praise on her work performance and then shared that ‘someone’ in the organization felt that she didn’t dress professionally enough. This admin does not interact with the public; she mainly sits in her office, generates reports and maintains websites. Her attire is neat and clean but not fashion-forward. She is also a single mother getting no child support. The comment about her appearance shocked her and now she is feeling embarrassed and alienated from the rest of the group. She mentioned talking with our Employee Concerns office. Where do we go from here?” – Anonymous, Washington