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Ask the Attorney Archives

Is our progressive discipline procedure confusing for the staff?

Q: “My company is in 36 states including California, Colorado and New York. The company has three stages of progressive discipline – Verbal/Written/Final. Managers tend to issue Performance Improvement Plans (PIP) and count it as part of the progressive discipline without designating if it is part of the (Verbal/ Written/Final Warning). My concern is that employees could [feel] angst by this practice because it is not documented in the policy as being an independent stage of progressive discipline — meaning if only a PIP document is issued to an employee, how do they know if they are facing disciplinary action, or what stage of disciplinary action? What do you suggest?” – Anonymous, Texas

To what extent should a lawyer be checking our company policies?

Q: “If I am helping to create employee policies for a restaurant, does a legal advisor need to review every policy?” – Leane, Texas

Can we withhold personnel files from terminated employees? How about paychecks?

Q: “We are a private company and a terminated employee has sent a written request to view their personnel file. Do we have to oblige? Second question: The terminated employee has not returned uniforms… can we withhold the last paycheck? Finally, the terminated employee had previously paid for a patio door from the company that is still here… if the employee doesn’t return the uniforms, can we keep the door?” – Storme, Arkansas

Does required overtime = more FMLA allowance?

Q: “If an employee must work mandatory overtime weekly, should that employee be entitled to additional FMLA hours?” – George, Indiana

How does mandatory quarantine work in New York City?

Q: “I’m wondering about the requirements for testing or excluding individuals who have tested positive for COVID-19 and within the last 90 days have had close contact again. Do they require a mandatory quarantine again? The location is New York City.” – Kenneth, New York

How do we navigate the personal pronoun conundrum?

Q: “We are a small nonprofit, with fewer than 50 full-time employees. Are we required by law to include preferred pronouns in our organization’s email signature template? Are employees forced to refer to their binary colleagues by the preferred pronouns? It becomes more stressful in communication (especially auditability) when an employee identifies as binary and their preferred pronouns are “they/them,” and the employee consistently reminds everyone. I recently ended a meeting because it was unproductive because of these personal pronouns. It was difficult for every to stay on task.” – Phyllis, Texas

We may have found evidence of drug use on the job–what now?

Q: “I am an HR Manager at a big nursery with hundreds of greenhouses, and we provide our employees with portable toilets. It was brought to my attention by the cleaner that he found a cut-up soda can and a syringe in one of the potties. I have never encountered any drug use at our nursery, and I am not sure how I can handle this situation.” – J.

Coronavirus: Is this employee a ‘long-hauler,’ or abusing leave?

Q: “An employee said she had Covid-19 back in the summer. She was out of work for three months. We paid her. She came back with a note saying she could return to work part-time. She said it would only be a few months. Since then she is always out sick. She has just moved to full-time work because she was set to lose her benefits and paid time off only working part-time. She now claims she has Covid-19 again. Can I request some form of proof? What are our rights as an employer?” – Nikkie, Florida

What can we do about employees working overtime without authorization?

Q: “If we notify employees that they are not to have overtime, do we have to pay them if they work anything over 40 hours? We advised that any overtime must be approved prior to any time being worked; however we have employees who are choosing not to adhere to the 40 hour limit. Also, can we legally change all clerical staff to salary positions?” – Krista, Connecticut

Has this employee provided notice of FMLA leave ‘as soon as possible and practical’?

Q: “We have a policy that says you must provide one hour’s notice of your absence prior to the start time of your shift or disciplinary action will result. We have an hourly (union) employee whose start time is 3:00 pm and who called in at 2:18 pm for FMLA leave. Are we still able to write them up due to the policy infraction even though they called in for FMLA purposes?” – Randy, Iowa