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Ask the Attorney Archives

Employee filed a work-related lawsuit against a company owned by ours–what are our retaliation worries?


Q: “A subsidiary company of ours wrongfully fired an employee while he was on workers’ comp and FMLA leave. He filed suit, then came to our parent company and showed that he is very knowledgeable and asked to be promoted. A supervisor then found out about the lawsuit against the subsidiary. Our supervisor refused to promote him five times. He also told the employee directly that he can’t expect to be promoted when he is suing the subsidiary, because we are the same company. The supervisor then transferred him out of town, and now the employee is complaining of retaliation. Are we in trouble?” – Dave, Nevada  

Will our little white lie about a reason for termination come back to haunt us?


Q: “We mutually agreed when ‘John’ left the company to tell any prospective employers that he left because his assignment ended. However, since we operate in a small community, I found out that some of my staff had unofficially told their friends at another company that John was fired. This resulted in him getting terminated at this company because they said he lied on his application about never being fired before. He tried to explain, but we’re in an at-will state and the company officials said there’s nothing to discuss. John is now threatening to get a lawyer and take us to court for violating his separation agreement. Are we in trouble for revealing that his departure from the company was not entirely voluntary on his part?” – Anonymous, Washington

Must we provide an ADA accommodation for this part-time new hire?

Q: “We have a part-time employee hired in November of 2015. Since January 2016 she has missed several days of work due to an illness. She recently provided a physician’s note excusing her from work. What are our rights for terminating her employment if the illness and time off continue?” – Anonymous, Michigan

Do we need to retain leave requests?


Q: “Regarding record retention requirements, where do requests to take paid time off, such as vacation, fall? Other documentation exists that tracks the vacation hours taken, but what I am referring to is a separate request form that is completed to request the time off. Under the time off policy, our employees are allowed to carry over unused time off, but must use it during the year it is earned.” – Cristy, North Carolina

How should we handle maternity leave for an employee who’s not FMLA-eligible?

Q: “We have a pregnant employee who does not qualify for FMLA (has been employed with the company less than 12 months). How long do we need to hold her position while on maternity leave? Must we continue paying health insurance premiums while on maternity leave, or can we offer COBRA coverage after a specified amount of time on leave?” – Anonymous, Texas

What are the ramifications of cancelling health insurance for all except upper management?


Q: “We are a corporation with less than 50 employees. We currently provide health insurance to our employees and pay 65% of the premium. We are in a huge downturn and need to cut costs immediately. We want to terminate the insurance, but a senior executive has a serious health condition and is undergoing treatment. Can we cancel health insurance for all employees except upper management? If not, what other options could we entertain?” – Melissa, Texas

Casual drinking when entertaining clients: What should our policy be?

Q: “What is a good policy on allowing alcohol to be consumed when entertaining a client or a prospective client? Does this put the company at risk if an accident should occur during or immediately following the meeting/dinner? Right now our policy is ‘no alcohol.’ However, this has created some issues for our salespeople.” – Marchia, Oklahoma

How do we pay for travel time and mileage when assignment sites and lengths vary?

Q: “We have security guards who are sent to assignments at different locations. They do not report to our office; they go directly to the assigned location. Sometimes it is a one-day assignment and other times it could be one-month or longer. Are we required to pay travel time and mileage?” – Linda, California

Employee removes dependent from health plan in error–can it be fixed?


Q: “Regarding a High Deductible Health Plan (HDHP) with a Health Savings Account (HSA): Under what circumstances may a correction be made if an employee removed a dependent from a medical plan in error? For example, with an HDHP, the employee or a spouse may also be covered by Medicare, but may not contribute to the HSA, per IRS regulations. Our employee received a letter from the company stating this after the spouse became eligible for Medicare. The employee interpreted this information to mean the spouse must be removed from the HDHP medical plan. During open enrollment, the employee removed the spouse from medical insurance. After the fact, the employee realized this error/misunderstanding. Changes like this may call into question the Section 125 plan. What are the options for a situation like this—can the spouse be added back to the insurance?” – Patty, Washington

Are we paying these commissioned employees properly, or are they owed overtime?


Q: “The Department of Labor’s website says: ‘Employees of a retail or service establishment who are paid more than half their total earnings on a commission basis may be exempt from the overtime pay requirements of the FLSA.’ I understand that this exemption from overtime would apply to employers who are paying commission only for employees who paint cars and get paid a percentage of the sale for each car they paint. I further understand that they also must pay the employee at least one and one-half times the minimum wage and be able to prove they’ve done so by maintaining time records. Is there anything I have missed, or that I am misunderstanding?” – Cristy, North Carolina