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Ask the Attorney Archives

The employee is well enough to do the job–do we have to grant intermittent FMLA leave?

02/16/2015
Q: “Can we refuse a request for FMLA intermittent leave for a serious health condition when the physician has checked the box indicating that there is no part of that employee’s job that the employee is not able to perform? We included a copy of the job description with the FMLA paperwork we provided.” – Kary, Maryland

I need to find out more about the safe harbor provision. Where do I turn?

02/16/2015
Q: “I have a situation with the IRS re: misclassification of employees. I am trying to find a good reference book or some such thing with a few sample letters I may be able to use to handle this issue (Section 530). Do you know of any?”  – Tim, Illinois

How can we fine-tune our job application to spot bad drivers?

02/16/2015

Q: “We currently have a question on our employment application that asks whether the person has been convicted of a crime, and if yes, to please explain. However, we would also like to ask about speeding tickets, moving violations, etc., since all of our employees transport individuals with special needs. Our liability insurance won’t cover anyone who has had a DUI within the past seven years or three or more moving violations within the past 36 months. How can we legally ask about the person’s driving record in order to weed out bad drivers without having to pay for a background/driving check?” – Janet, North Carolina

What is the protocol on asking employees to provide a doctor’s note?

02/01/2015
Q: “When an employee calls off sick for more than one day, is there a minimum amount of days off required before an employer can ask for a doctor’s note? Also, are you permitted to ask the specific reason for the absence?” – Joe, Pennsylvania

What exactly is the employee head count that brings the ACA into play?

01/26/2015

Q: “Please clarify for me the number of employees it takes to place a company under the obligation of Obamacare. Our insurance carrier said it had been increased from 50 employees to 100.” – Vincent, Louisiana

Did we shortchange this employee on his seniority when we rehired him?

01/21/2015
Q: “An employee left the company in good standing to pursue other interests in August of 2012. We rehired him six months later and started him as a new employee. He lost his previous seniority of 13+ years. My position is that his original seniority date should have been adjusted to reflect his time away from work, and that he should not have returned with new employee status. What do other companies do, and is there any legal support for my position?” – T., New Jersey

Is this worker’s ‘sincerely held’ religious belief just a smokescreen?

01/21/2015
Q: “We recently hired a delivery driver, and during the interview and orientation he was told he had to shave his beard due to delivering to schools, residence, etc. We have a policy of no beards. He showed up to work his first day still unshaven. When asked why, he said that it’s against Protestant religion to shave. Is this so?” – Connie, Florida

Is there a formula for determining pay when hours are reduced?

01/21/2015
Q: “When an employee goes from a full-time salaried position to part-time hourly, do we have to pay salary divided by 2080?” – Sherry, Florida

What does Michigan law say about paying vacation time upon separation?

01/21/2015
Q: “Our vacation policy states that accrued and unused vacation time will not be paid at termination; however, it further states that upon resignation by an employee, if three weeks’ notice is given, then the accrued and unused vacation time will be paid. Is this legal for Michigan?” – Susan, Michigan

Different positions on different days: How do we pay?

01/05/2015
Q: “Can you ask an employee to work one day at a certain position with a salary of $25 per hour and the next day work a different position but at a lower rate of $21 per hour? Employees on a rig crew switch positions many times, so one day they may be a rig operator, and the next day they may be a derrickhand.” – Santana, Texas