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Ask the Attorney Archives

Can paid time off benefits be tied to performance?


Q: “Can an employer require a certain job performance level in order for an employee to be awarded PTO benefits? Can it award different amounts of PTO based on different levels of performance? Finally, can an employer in North Carolina not pay out PTO when an employee resigns with sufficient notice, even though the employee has days earned but not yet used at the time of resignation?” – Cristy, North Carolina

What privacy concerns surround the use of an employee’s image?

Q: “What is the protocol on having an org chart board with pictures of employees hung in an area where any employee can see it? Does it need to be hung in a place where it isn’t in plain view?” – Jeannine, Utah

Have we overshot with our requirement of a college degree for an admin position?

Q: “What do you say to a manager determined to post a job description for a position traditionally performed by an administrative assistant, but who is now requiring a bachelor’s degree for this exempt position?” – Anonymous, Washington

His ex-wife stayed on his insurance plan for years–is she now COBRA-eligible?

Q: “I took over this position and just found out that an employee kept his ex-wife on his dental insurance plan after they were divorced. He has a new wife and I was adding her onto the coverage when I noticed it. Do I need to offer COBRA when I just found out they divorced in 2011, or do I just remove her?” – Michelle, Massachusetts

What are the overtime pay rules for salespeople and drivers?

Q: “Our salespeople work out of the company office making phone calls and also visit customers to make sales. Currently they are paid a weekly draw which is then deducted from their commission check, which is paid annually. Are we required to pay them hourly now? If so, is it still OK to deduct their weekly check totals from their commission check that is paid annually? Concerning drivers, if a driver drives both in-state and out-of-state, are we required to pay overtime?” – Em, Missouri

How do we help an employee who falls outside the scope of the FMLA?


Q: “How do I offer additional time off to a new employee who is not eligible for FMLA but who suffers from migraines? We are exploring an adjusted work schedule through the ADA. Can she can have any protection under the FMLA even though she hasn’t been on the job long enough? If we allow her to continue to take unpaid time off, that will become a violation of our sick leave policy. How do I help this employee in a way that will provide her with protection from being fired due to her excessive absenteeism?” – Arvis, Wisconsin

Employees served legal papers at work–are there rules or restrictions?


Q: “Are we obligated by law to allow a process server to serve summons, subpoenas or court orders to our employees? Are we obligated to inform an employee that a process server is attempting to serve him or her legal papers at work?” – Arvis, Wisconsin

Can we block an employee’s return from FMLA leave?

Q: “I have an employee who went out on FMLA leave for surgery. She just had her two-week follow-up appointment, and the doctor suggested that she stay out for another month. The employee told the doctor it would drive her crazy to be home for four more weeks, so the doctor went ahead and wrote that she would be able to return to work in one week instead of four. Are we as a company legally able to ask the employee not to return until she has had her four-week re-evaluation?” – Jeanet, Colorado

Under what circumstances may we ask to see a Social Security card?

Q: “We have had several employees over the years who completed our new hire forms (and front page of I-9) and transposed numbers in their Social Security numbers, which caused issues with Payroll. Can I require new hires to show me their Social Security cards so that I can confirm the number is correct? In most cases I will see this as one of the documents for the I-9, but if they choose other forms for their I-9, can I still ask? Can I make a copy if it for my payroll records? What if they refuse? Can I terminate them? What if they say they don’t have a card or lost it?” – Michelle, Pennsylvania

Is it fair to factor unusually high health plan costs into an employee’s total compensation package?

Q: “Our standard health care benefits cover an employee’s entire premium. In practice, that usually means factoring in roughly $3.5 to $4K into the total compensation package. A candidate being interviewed asked about benefits and then voluntarily disclosed having a family (spouse and three children over 10 years of age). The candidate also (again, voluntarily) shared an interest in coming onto our health care plan, as the spouse may be considering a different job opportunity. Depending on details, we estimate that the family plan (which would be subsidized after 60-75 days of employment) could total between $18K and $24K. We were originally considering a total compensation range of approximately $55-$60K for the position, which would translate to a base salary of approximately $48-$50K (not including the standard benefits of paid leave and individual health care coverage). Can we factor in the expected family health care costs in our salary negotiations? Factoring the total health care cost into our conversation would also likely change the position into nonexempt under the new law.” – Anonymous, District of Columbia