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Ask the Attorney Archives

Do we need to offer FMLA leave if the employee will be unable to work when it’s over?

02/10/2014
Q: We are a trucking company and we have to follow DOT regulations. We have a driver who has had a bypass operation and now has a defibrillator. When he first went out on leave I mailed his FMLA papers, but since then he has called us and told us that he now has a defibrillator, which means according to DOT he can no longer drive a truck. Do we still need to give this driver 12 weeks of FMLA time since he will never be able to return to work? – Anonymous, Nebraska

Is this worker’s “sincerely held” belief just that, or a disruptive attitude we don’t have to tolerate?

02/10/2014

Q: We run a fast food restaurant and allow a female counter person to wear a religious head covering as an accommodation, despite the fact that we have a policy against head coverings that aren’t provided by us. Now one of our male counter workers started coming in wearing a camouflage cap, claiming his religious idol is Phil Robertson of “Duck Dynasty.” We know he is doing this out of spite, but he has told us that his “religion” is sincerely held and that he honestly subscribes to this person’s views and beliefs. Can we tell him to remove his cap, but allow the woman to wear hers? – C.B., Virginia

Will offering more vacation time to certain new hires land us in a tight spot with our existing staff?

02/10/2014

Q: Our company handbook states all new employees are to get one week of vacation after their first year of service. After five years, they receive two weeks, and after 10 years, three weeks. Are we allowed to grant new employees two weeks’ vacation starting on the day they are hired, or would this be a company policy violation? – Tracie, Alabama

An employee doesn’t want long-term disability. Must we warn him of the consequences?

02/10/2014
Q: When an employee was hired, he marked on his disability application that he did not want long-term disability. What is the company’s fiduciary responsibility to make the employee understand what happens when he decides he does not want to sign up for disability? – Cyndy, Ohio

Do our dealings with federal contracts obligate us to advertise all positions externally?

02/10/2014
Q: I have a question about employment advertising. Our headquarters office is in Texas. We have multiple U.S. government contracts, and some (non-government) commercial contracts. Are we required to advertise openings externally if hiring for positions within our headquarters office that are not directly billed to government contracts? – William, Texas

Can we change our workers’ hours without negotiating with their union?

02/03/2014

Q: We reviewed employee efficiency and we saw that we could decrease some of the employees’ hours from eight per day to six per day. Do we have to bargain with their union to reduce some employee hours, or can we just notify the union? – Jay, California

Are we permitted to compute overtime across multiple days?

02/03/2014
Q: For nonexempt employees working in California, what is the correct calculation for hours including overtime? If an employee works four hours on Monday, and 11 hours on Tuesday, should she get paid 12 hours straight and three OT, or should she get 15 straight (because it was makeup time)? – James, California

What can we ask an applicant about his record on the road?

02/03/2014

Q: Is it lawful in Illinois to ask about a person’s driving record (accidents and violations) on the job application? – Paula, Illinois

How do we terminate an employee who is medically unable to produce?

02/03/2014

Q: About six months ago, one of our office staff had a stroke. She was off for about three months and returned to work two days a week for two hours each day. She is very limited in what she can do. The company has continued to pay for her health care even though she is not working full-time. The company can no longer hold this position, as she is not able to perform her duties. At this point it does not seem as though she will ever be able to return to work full-time or for more than four hours a week. How does the company terminate her without any repercussions?  – Marian, Pennsylvania

Does a training session put a worker into overtime?

02/03/2014

Q: In California, if I schedule a training session that leads to an employee going beyond the eight-hour workday or 40-hour workweek, is it considered overtime? – Rey, California