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Ask the Attorney Archives

Must we bring back laid-off worker who was told of rehire?

05/16/2011
Q. Recently, we laid off an employee. During the exit interview, he was informed that he was being laid off because of lack of work. He was also advised that the displacement was temporary, that he would be brought back once the business picked up again. Are we now required to offer him employment again? – Juan, North Carolina

Time recordkeeping: What are the rules both nationally and in New York?

05/16/2011
Q: What are the timekeeping requirements for hourly employees in New York State? Is the employer required to have a timekeeping method in place (time clock, employee writes down own hours, etc.) that shows day of the week, time in and out (meal breaks included) and total hours worked? Is this the definition of “complete and accurate time records of hours worked” under the NY Wage Theft Prevention Act? Or can employers just have the day of the week and the employee logs “8” hours as his/her hours worked for that day? – Connie, New York

PTO: Can we include holidays as ‘time worked’ but not other PTO time?

05/16/2011

Q. Is it ok if a company decides to include a paid holiday as “time worked” but not other PTO time (vacation, sick, personal)? We understand overtime is only paid on hours worked, but as an additional benefit the company would like to include a paid holiday as hours worked. – Anonymous, New Jersey

Can PTO time be ‘caught up’ during the week?

05/16/2011
Q. If a salaried employee works only two hours on Monday but makes up the additional hours during Tuesday- Friday and receives their full pay, do they still have to submit six hours of PTO for Monday? – Anonymous, New Jersey

Must electronic personnel files be kept in any certain format?

05/03/2011
Q. What are the Federal guidelines for electronic personnel files? Are there any special guidelines for E files in Minnesota? – Laura, Minnesota

Can we terminate an employee who’s out on workers’ comp?

04/28/2011
Q. I have an employee who we had planned to terminate due to lack of work. But right before we were able to terminate him, he filed a workers’ compensation claim. The employee was placed on light duty and we have accommodated him. Can we terminate the employee regardless of his claim, wait until he returns to full duty, or wait after the claim case is closed? – Anonymous, California

Do employees earn PTO hours while on FMLA leave?

04/25/2011
Q. We have a Paid Time Off (PTO) policy in which employees earn a percentage of PTO based on every hour up to 80 hours that they work. If they take PTO for a vacation day they earn that percentage on those PTO hours. In our FMLA policy, we state that employees do not earn benefits during leave. This means that during FMLA leave, they would not earn additional PTO during that time (even if they are using PTO for those hours). It also means that during an FMLA leave, they are not accruing worked hours. (This determines where they are on the step scales.) Any issues with this? – Sandra, Minnesota

Do holiday and vacation hours count toward 40-hour overtime threshold?

04/18/2011
Q. Can we include holiday pay as time worked when calculating overtime, but not include vacation, sick, personal as time worked? For example, in one week, an employee works 35 hours, plus gets 8 hours of holiday pay. He would get paid 40 hours regular and 3 hours overtime. In another week, the employee works 35 hours + takes 8 hours vacation time. We would pay them 43 hours regular time. – Anonymous, New Jersey

Can a post-injury waiver prevent our workers’ comp liability?

04/11/2011
Q. Our safety officer insists that if workers have a minor injury on the job but refuse to seek treatment, they must sign a waiver. The waiver states that they refuse treatment and the company is no longer liable for their treatment. He says that we no longer have to submit a claim to workers’ comp for that injury in the event that it becomes serious. (For example, a fall leaves a bruise but later the bone is found cracked.) What do you think? – Heather, Florida

How do we handle employees who clock in too early?

04/04/2011

Q. We have employees who clock in 20 to 30 minutes before the start of the work day. They don’t perform work until their shift starts. The employees say they will forget to clock in if they don’t do so when they arrive. Can we adjust their start time to reflect when they start working? If so, what do you suggest to prevent a claim of unpaid overtime? –Anonymous, Illinois