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Ask the Attorney Archives

Are we mixing employee files inappropriately?

Q: “I’ve discovered that at our publishing company of 75 people, each employee has a single personnel file into which all documents go—everything from their new-hire paperwork to performance reviews to doctor’s notes. How must we separate this information going forward to keep legally compliant? We’re supposed to split off certain medical information so that each employee will have different sorts of files, correct?” – Theo, Maryland

Employee goes dark after FMLA leave expires–when can we terminate?

Q: “If an employee was on FMLA leave and has exhausted the 12 weeks, but has not made contact with the company (to state that they are desiring to come back to work, or to request an extension of the leave), and their phone numbers and email are no longer in service, how long is the company required to wait before termination of employment?” – Martin, Minnesota

How should we bring employee pay up to the levels of the newly hired?

Q: “I’m considering pay raises to compete with the current industry standard. If new hires are starting at a higher rate than what we currently pay, is it a viable solution to raise current employee salaries to that of the newly hired using a formula? Example: A job is advertised at $18 per hour for new hires, and the company will look at raising current employees with no infractions to the advertised rate. Those current employees who have infractions will have a window of opportunity to raise their pay if they stay infraction-free. Do you see any issues with this as a fair and standard way of discerning pay raises for current employees?” – K., Virginia

Which anti-discrimination laws apply to a company of our size?

Q: “We are a small company with 12-15 employees at any one time. I get very confused on all the agencies that put out employment requirements. Can you tell me if the ADA, EEOC, etc. apply to us?” – Judy, Alaska

Is it OK to dock a nonexempt’s salary if the hours just aren’t put in?

Q: “We have a nonexempt salaried employee who is required to work 40 hours a week. She rarely works overtime, but when she does she gets 1.5 times her hourly rate. My question is, if she works less than 40 hours in a week, does not have any PTO left and does not make the time up, can we dock her salary?” – Maria, West Virginia

Can we charge administrative fees when employees create a burden on payroll?

Q: “Can the company legally assess an administrative fee to employees who have been issued a corporate credit card and have been told in writing that the card is to be used for business purposes only, yet continue using it for personal purposes? It means the accounting department must adjust their regular paycheck to deduct the monies used for personal expenses.” – MK, Oklahoma

How do I handle this tricky information exchange between my old and new employer?


Q: “I have a job offer and the employer wants to know the start date of my prior job. The problem is that my old job’s HR department determined my start date from the time I received benefits, while I was technically employed prior to receiving benefits as a trainee with a reduced salary. I sent my prospective employer an old email that documented the training start date from a former supervisor—is this sufficient to prove the earlier start date? Does my new employer have the right to contact my former supervisor regarding this matter without my permission? My old supervisor isn’t the easiest person to speak with, which is why I hope the email is fine.” – Fred, Massachusetts

Salesperson leaves the company owing money–is his draw fair game for a deduction?


Q: “We are considering changing our compensation plan for account managers. Scenario: Employee will receive a monthly set salary in advance and also earn a commission on sales. However, if the employee’s commission does not equal the set salary, the company will deduct the difference of the commission from the salary that is paid in advance. If the employee should leave employment while owing the company the difference mentioned above, are there any laws that would prevent the company from deducting the owed amount from the employee’s accrued but unused vacation time that would be paid out at the time of the resignation?” – M.J., Oklahoma

Must we pay employees for time spent filling out new hire paperwork?

Q: “Should employees completing new hire paperwork be paid for that time, even if it is before their official start date?” – Geri, Idaho

New job title, but same pay–could it be perceived as a demotion?

Q: “We are reviewing our job descriptions. If a title is changed from Assistant HR Director to HR Tech but there is no change in pay, might it be considered a demotion?” – Patricia, Florida