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Ask the Attorney Archives

How do we explain a controversial shift in overtime exemption status to our workers?

Q: “Our new HR Director moved four of 12 management team members from exempt to nonexempt status without the Program Director’s approval. Two of those members changed have the same job description and similar responsibilities as one that was not changed, and one of those two has the responsibility of coordination of the total education component (of our work in education). The fourth is the Assistant Director, who assists the Director to supervise 12 employees and oversee a program with 77 staff who also has over 30 years of experience. This has caused a great deal of stress and distress in the admin team and we are unsure how to present the reasons we need to have the four remain exempt from a legal position. Any suggestions?” – Kimber, Kansas

Did we make a bad call in switching these exempt workers to nonexempt status?

Q: “We have a new HR Director. He moved four of our 10 management team members from exempt to nonexempt status. Two of those staff have the exact same title and job responsibilities a one member who he left exempt. He said that the one he left exempt worked on-site with the five people she supervises, while the other two only had two or three people they supervised and most of those supervised were at different locations than where the supervisors are placed. All four reclassified team members are responsible for coordination and oversight of component areas with expertise in those areas. When there are questions, they are the experts. This new situation has negatively impacted the team, and those staff now have to work diligently to not go over 40 hours. Can you clarify why they should not be exempt?” – Kimber, Kansas

How do small employers file for an exception from FFCRA provisions?

Q:  “I am reading conflicting info on the FFCRA. The law, which took effect immediately after President Trump signed it, also provides federal funds for enhanced unemployment insurance and free coronavirus testing. I also read that this took effect on April 2. Which is correct, and where can employers with less than 50 employees file for the exception?” – Lynne, Louisiana

What ‘other conditions’ might make an employee eligible for leave under the FFCRA?

Q: “Could you please expand on Item No. 6 of the new FFCRA: ‘…is experiencing any other substantially-similar condition specified by the U.S. Dept. of Health and Human Services’?” – Cecilia, California

How will the coronavirus relief package affect employee leave?

Q: “Could you please expand on the coronavirus relief package specifically on the issue of sick days and paid family leave?” – Cecilia, California

Can we make our employees travel during this pandemic?

Q: “We have employees who are refusing to go to work due to the coronavirus (some of these jobs involve travel). If we are following all protocols recommended by the CDC and we are not sending them to a country like China with a high level of danger, are we within our rights to ask them to continue to work?” – Karen, Florida

Should employee records be stored only with HR?

Q: “I’ve got a nonprofit client whose Archives & Records Management team asserts that they are responsible for maintaining all employment records based on their “charter” from a parent organization that was written nearly 50 years ago. It is my understanding that the HR department should be the office of record (and that is what it states in their company policy), but the Records office is demanding that they receive the employee records for archival purposes. Employees in the Records office are not HIPAA trained.” – Maren, Virginia

New York City family leave—what about longer absences?

Q: “In New York City, may we deduct absences for Paid Family Leave, FMLA, maternity or other leaves that are longer than a month from vacation accrual? Policy is for 10 days paid vacation after one year of employment.” – Ken, New York

We paid a worker in advance for a vacation he never took–what are our options?

Q: “My client’s employee requested accrued vacation leave and was paid for the weeks in advance of the vacation. Then he changed his mind on the Monday of his vacation and came to work for the entire paid vacation. How do we handle his paycheck for the workweeks? Can we deduct the vacation pay from his workweek pay (making sure he doesn’t go below minimum wage)? If not, how can we get reimbursed for the vacation pay? I intend to add a statement to the vacation policy that prohibits employees from working on their approved vacation.” – Ken, New York

What must we reveal to an attorney trying to collect an employee’s debt?

Q: “Are we required to comply with an attorney’s request for employee status, wage, position, hours, and if currently under garnishment? This came from an attorney with the statement that ‘this communication is from a debt collector and is an attempt to collect a debt.’ What is the state statute regarding employers need to comply? – Judy, Minnesota