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Ask the Attorney Archives

Can the right to overtime pay be waived by private agreement?

Q: “Can a board of county commissioners in South Dakota have a nonexempt employee sign a document to the effect that the employee would not ask for overtime pay or comp time off? The employee has agreed not to come back to the county in the future for any compensation. HR feels federal law supersedes this agreement.” – Tim, South Dakota

Who exactly is an ‘essential’ employer?

Q: “I cannot find a ‘definitive’ list of essential employers on the DOL site re: Covid. Is a commercial cleaning company (who sanitizes offices, etc., and has less than 50 employees) considered an essential employer? And, if so, are they exempt from the paid sick leave/FMLA mandate per FFCRA? But, they could take the option to pay employees the EPLSA (if for Covid reasons) and then qualify to take a tax credit for the amount of wages paid, yes?” – Ann, Texas

Are employees paid for quarantining before surgery?

Q: “If an employee is going out for surgery but is ordered by her physician that she needs to quarantine for 14 days prior to her scheduled surgery, is she eligible to receive compensation under the Emergency Paid Sick Leave law?” – Cecilia, Ca.

How do we handle benefits deductions we didn’t quite get right?

Q: “We merged our benefits with our parent company and the benefits deductions did not come out last payday. Can we double the benefits premiums on this paydate? Also, our benefits premiums are off by a few dollars from the parent company’s premium rates. Do we need to charge them to what we told the employees at the beginning of the year, or can we use the new premium rates? We have employees in PA, SC, AL, FL, TX (where the majority are located), AZ, CO, MN, OR, CA, MO, IN.  – Vanh, Texas

Do we need to recalculate overtime when offering an annual bonus?

Q: We have mostly hourly, part-time, shift-based employees. We instituted a once per year small discretionary loyalty bonus. If the amount is fixed, for example $100 per year of employment, some people tell us we need to recalculate the overtime rates for all 26 prior periods (which will amount to pennies, but cost us hours to do). It is impractical in a very small (12-18 employees). We are looking at calculating the bonus at 0.2% of total past year compensation. For example, for one employee, it will be $86.13. Can we round it with a discretionary bonus of $13.87 to get a round number bonus of $100.00? Are there other options to give a reward without the whole pain of overtime recalculation? – Alan, Tx.

Can recalled workers stay out due to anxiety?

Q: “An employee has been on furlough since mid-March. He was asked to return to work and refused, claiming he is experiencing anxiety, and has requested to go on FMLA/CFRA. Does he qualify for FMLA/CFRA leave if he is currently on furlough?” – Cecilia, California

Must we now provide masks to employees?

Q: “Is it the responsibility of the employer to furnish masks to employees returning to work?” – Denise, District of Columbia

Confused about paid sick leave during this time – help!

Q: “We are a senior living company with more than 500 employees. If I send an employee home because they show symptoms of COVID-19, how should I pay them? If an employee refuses to come to work for fear of the virus, what are my options? How long do I have to pay an employee who is out with COVID-19?” – Richard, Florida

The crisis showed us we’re better with a smaller staff. How do we keep it that way?

Q: “Due to the coronavirus, our organization reduced our workforce to better adhere to social distancing guidelines. Our company is small and went from 15 employees to 10. Those who were laid off were able to apply for and collect unemployment. Our plan was to recall them after the stay-at-home order was lifted. However, we have found that the company in fact performs more efficiently with the reduced staff. How can we legally terminate our employment relationship with these people?”– Susan, Wisconsin

What benefits must we provide a temporary employee?

Q: “We are creating a category for temporary employment; this employment would be no longer than 12 months with a specific end date of employment. What benefits are we required by law to provide a temporary employee? We do not provide health, dental, disability and life insurance to part-time employees; are we required by law to provide these benefits to a temp employee who may work 40 hours a week? And what about retirement, specifically our 403(b) program? We do provide a 403(b) match for full time employees after they work 1,000 hours. Can we stipulate that the match is a benefit only to full-time employees and not temporary employees?” – Laura, Indiana