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Ask the Attorney Archives

Is this manager setting the company up for a discrimination suit?


Q: “I’m working with a manager who just terminated 11 staff members because “they didn’t have the right skill set,” although he couldn’t adequately articulate to me or his staff what those missing skills were. He just wanted to go in a fresh, new direction. Ten of the 11 were women and nine of the 11 were 40 or over. Now he wants to hire eight new people to essentially replace those terminated. I think he’s putting the company at risk. Is he?” – Anonymous, Washington

How do we effectively separate FMLA leave from normal absences?


Q:  “Can an employer require an employee to state that a call-out is FMLA-related if the employee is on approved FMLA leave? Can the employer require that an employee on approved FMLA leave sign an agreement stating that if they don’t state a call-out is FMLA-related, it will not be charged to the FMLA leave and they will incur attendance points?”  – Anonymous, Virginia

Can we withhold pay from someone who we believe stole from the company?


Q: “An employee was terminated for embezzlement, but was not charged. Since he embezzled over $20,000, can the company withhold the unused vacation time that he had accrued over the past year?” – Marchia, Maryland 

‘Maybe I’m leaving, maybe I’m not’: What do to if they have one foot out the door?


Q: “If an employee states that she is supposed to hear in the next couple of days if she will be offered a new job at another company in the same field, can you consider that a two-week notice? Secondly, should you now look for a replacement for that person? Can you fire the employee if she actually does not get the other job? Do you have to wait for her to officially get a new job before taking action even though you now know she is actively looking for a new one?” – Joy, Pennsylvania

How do we pay an exempt employee when doing extra work?


Q: “An exempt employee works 12 hours in a secondary position, after working his 40 hours (eight hours of approved PTO is inclusive of the 40 hours). Is the exempt employee paid for 40 hours of his regular pay and the additional 12 hours at straight pay?”— Anonymous, Virginia

Can we require workers to wear their company t-shirts only at work?


Q: “Our employees are required to wear company polo shirts with our logo on them while they are working. They paid for the shirts through a payroll deduction. Can we tell them they can only wear those shirts while on duty and not any other time? We fear that someone might wear the shirt on his or her own leisure time while doing something that misrepresents our company’s values.” – Bill, New York

Can the C-suite solicit charity efforts from employees in such a heavy-handed way?


Q: “Is it legal or ethical for the Executive Director to ask employees to solicit contributions for their not-for–profit “giving Tuesday” campaign through their own private social media accounts and then post the totals on a scoreboard? A number of employees have come to me as the HR person expressing their discomfort. Each employee is being challenged to a minimum of $500 to be a ‘champion.’” – Fred, New York

How vague can an employee be about FMLA absences?


Q:  “What do we do about an employee on approved FMLA intermittent leave who calls out and only states an absence is ‘FMLA-related’ or requests to leave early and states the same thing? The employee also calls in tardy and merely states it is FMLA-related. What are the employer’s rights?” – Anonymous, Virginia

How liberally can intermittent FMLA leave be split?

Q:  “Can an employee use a few hours of FMLA leave per day, breaking up her doctor-recommended two full days per medical episode? The employee indicated in one absence that a piece of furniture collapsed on her and then due to her FMLA issue, she was weak and couldn’t come to work.” – Mary, Ohio

Can we withhold pay for a time clock violation?


Q: “If any employee does not clock in or out for a shift and does not alert their supervisor, is it okay to hold back that day’s pay until the next pay period if the error is not discovered until the financial manager is running payroll? Or is it only legal to do a write-up?” – Anonymous, Virginia