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Ask the Attorney Archives

Employee won’t take a drug test based on reasonable suspicion–OK to fire?

Q: “Can you terminate an employee who is receiving workers’ compensation if he refused a reasonable-suspicion drug test?” – Norma, Tennessee

What is our recourse when a worker withholds medical information?


Q: “One of our general managers in Oklahoma hired an individual to lift metal parts off a cutting table to place on pallets. We found out that the new hire is suing his former employee for an alleged back injury. Can we terminate the employee for not letting us know he had a back injury? He said that he was qualified to perform the work and has been lifting the parts for a week.” – Vincent, Louisiana

Is this employee a victim of retaliation, an FMLA violation … or both?

Q: “A friend of mine was out on FMLA that turned into short term-disability. She kept in contact with her employer, letting them know what was going on. A month before her return she asked if she would still have a job and the email back said yes. The day she went back to work, they released her and said that it was due to restructuring. The girl who replaced her is still doing her job, and my friend has proof (which she had previously showed HR) that this girl is a racist, and they swept it under the rug. We think she was let go because she brought that to their attention. Does she have any recourse against the company?” – Robin, Missouri

How do we get this employee to return company equipment after resignation?


Q: “An employee in Texas has resigned and has not returned his company equipment (phone/computer), credit card or key. His final paycheck is not due until the next regular payroll, but each time he is approached to return the equipment, he makes excuses and keeps asking for the CEO to call him. I know we cannot hold his final paycheck, but what can we do to ensure he returns the company equipment?” – K., Texas

What does ‘at-will employment’ really mean?

Q: “Our managers and supervisors believe that they can terminate an employee at any time by referring to their ‘at-will’ status. Will you please explain from the legal perspective what ‘at-will’ actually means? For example, I believe you can truly fire at will unless you violate one of the many laws regulating/protecting employee behavior such as FMLA, ADA and the like?” – Terry, New Jersey

What’s the status of the DOL’s new wage and overtime protections for home care workers?


Q: “Our agency provides trained staff to work with individuals with intellectual disabilities in their homes and out in the community. We just saw the Department of Labor announcement regarding a time-limited non-enforcement period for mandatory overtime pay for home care workers, a policy that was scheduled to go into effect on January 1, 2015. Do we still have to start paying overtime for our employees starting January 1, or can we wait?” – Janet, North Carolina

Does a home care worker with possible disabilities need to be accommodated?


Q: “We have a group home for adults with developmental disabilities (whom we refer to as consumers). We hire Direct Care Staff to work with the consumers on daily life skills, hygiene, meals, distribution of medication and community involvement. I hired a young woman who on the first morning of orientation said that she was bipolar, and had some anxiety issues and some learning disabilities. She will many times be the only staff member working with the consumers in our group homes. What happens when something sets her off or she is having a bad day and we do not realize it? Can we tell her that this position may not be a good fit for her?” – Valerie, Texas

When do we need to start worrying about charges of nepotism?


Q: “We have two sisters who work in the same area in our company. Early in 2014 a restructuring took place, and now one sister is a regional manager, and the other is a store manager in her sister’s region. The ‘regional manager sister’ does her ‘sister store manager’s’ performance review, makes recommendations for raises, etc. This is affecting morale; other store managers are grumbling about unfair treatment. How risky is this circumstance? What is a recommended policy for relatives working in the same organization?” – Jeff, Massachusetts

What are the risks of automatic pay deductions for lunch breaks?


Q: “Our payroll system has been set up to automatically deduct 30 minutes per day from our route drivers for their lunch since they are on the road, away from a computer, and do not have phones or devices to use to do this. I have concerns about liability for us; they could say they worked through lunch. Can you please give me the reasoning that applies so I can properly explain this to our officers?” – Kary, Maryland

Employee wants to earn less, not more–what’s the possible downside?


Q: “Can we pay an employee minimum wage for a position that usually pays more? We have an applicant who does not want to lose her pension benefits and can work for minimum wage yet still qualify to receive her pension. Can we legally accept her request for minimum wage of $7.25? Should we have her make that request in writing and notarized?” – Cindy, Texas