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Ask the Attorney Archives

How do we make sure job postings are in compliance with affirmative action requirements?


Q: “When posting for a job, should sites such as Zip Recruiter, Monster, etc., be in compliance with collecting Affirmative Action information to assist in AAP? If not, what is the best solution to gather that data?” – Anonymous

Is this jostling of an employee’s schedule in violation of the FMLA?


Q: “Can a supervisor change an employee’s work schedule when they are on approved intermittent FMLA leave? The employee’s FMLA paperwork states that she must be on a particular shift because of a medical condition. The shift is 6:30 a.m. to 6:30 p.m. The employee arrives at work at 8 a.m. at least 2-3 days a week and states it is FMLA-related. The supervisor would like to change the shift from 6:30 a.m.-6:30 p.m. to 8 a.m.-8 p.m. The night shift employee has to remain, resulting in overtime for that employee. In addition, the same employee on FMLA will pick up an open shift when she has exhausted PTO to ensure 40 hours a week. Is she violating her own FMLA when she picks up an open shift?” – Anonymous, Virginia

Can we require a deposit on company uniforms?


Q: “Can we collect a deposit on our company uniforms/jackets when they are issued to our employees? Unfortunately, when employees leave the company our uniforms aren’t always returned to us. We realize if we did receive a deposit and the uniform was returned, we would need to return the deposit with interest. Would it be easier to write the uniforms off as a loss?” — Roxanne, California

Can federal contractors offer different benefits packages to different types of workers?


Q: “As a federal contractor, do we have to offer our contract employees who are nonexempt the same benefits package as we offer our regular full-time nonexempt employees? Our current package includes medical, dental, life, 401K, LTD, AD&D, and PTO fringe benefits.” – Katie, Minnesota

What if a light-duty reassignment never seems to end?

Q: “An employee has experienced a work-related injury and the physician returned the employee back to work with restrictions. The restriction has resulted in the employee being on light duty beyond 90 days with no end date. The employee works in a light-duty capacity eight hours per day, but not in the position that the employee was hired for. What is the employer’s next step?” – Anonymous, Virginia

Is the way we’re handling promotions discriminatory?

Q: “For nearly every job family at my company, staff promotions are handled in a calibration meeting with senior management who discuss promotions and raises. Promotion requests are defended (if necessary) with examples of sustained high-level performance. The only job family held to a different standard of scrutiny/justification are our administrative assistants. In the case of their promotion from one level to the next, a special committee has been formed and managers come before that committee to plead their case for promoting their admin. A substantial number of requests are denied, usually with ‘she doesn’t support a senior manager’ silliness. I’ve cautioned my managers that creating this extra hurdle for promotions for a single job family is inequitable and discriminatory. Am I wrong?” – Anonymous, Washington

How do we handle this employee’s abrasiveness toward a supervisor?


Q: “Recently we acquired a new supervisor. My issue is that one of our employees is having difficulty responding to this person. She is giving this new supervisor attitude and we normally do not tolerate this. She has been sassy and there are even text messages to prove this. We have a great office culture and do not wish to lose either. What would be the best way to advise said sassy employee?” – Anonymous, Louisiana

We don’t want to terminate, so can we require retirement instead?


Q: “Can we require an employee to retire in lieu of termination? An employee has been having several significant performance issues during the performance cycle. The employee is eligible for retirement, but does not want to.” – Anonymous, Virginia

Can we legally give more work to as-needed employees than full-timers?


Q: “I have a supervisor who insists upon scheduling PRN (as-needed) employees even during a work slowdown due to a low census of patients. My concern is that she gives more work to the PRN employee than the full-time equivalent worker who also works under her. I have a vague memory that this is not only a bad idea, but also an illegal one. Is there a Colorado statute that would support the FTE employee if we need to cut hours due to a low census?” – Kathleen, Colorado

To cut costs, can we simply say, ‘Don’t come to work’?


Q: “Is it legal to ask management staff (who are exempt) to take voluntary unpaid full days off, say one or two a month, for a few months as a cost control action? My understanding is that unpaid full days off do comply with the FLSA and will not put in jeopardy the exemption status of the jobs.” – John, Ohio