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Ask the Attorney Archives

What are the legal risks of workplace bullies?

08/30/2010
Q. “What does an employee do when the president of the company is a bully, yells at employees and makes them feel intimidated?” — Terri, California

Must exempt worker be paid full-day’s pay for partial-day’s work?

08/30/2010
Q. “An exempt employee says that if she works at least part of the day, then it doesn’t count as ‘leave’ and we can’t deduct it from her Paid Time Off allowance under the Fair Labor Standards Act. Where does it say that in the FLSA?” — Laura, North Carolina

Can we withhold first paycheck until employee completes new hire paperwork?

08/23/2010
Q. “We are a home health agency that uses clinical field personnel. They are required to complete paperwork by a certain date. Can we hold off giving them their paychecks until their paperwork is completed? — V.C., Texas

Two questions on California wage-and-hour law

08/23/2010

Q. “Here are two wage-and-hour scenarios that I have been told are the law in California, yet I do not see the ‘rule’ that distinguishes them. Please explain it to me: (1) An exempt employee with two hours of vacation time, takes off a full eight-hour day for personal leave. This employee must be paid only for his two hours of vacation, which are deducted from his balances; Six hours are unpaid. Is this true? (2) An exempt employee with no hours of vacation time left works three hours and takes off the remaining five hours for personal leave. This employee must be paid for eight hours of work. Is this true? Why does Employee 1 receive only two hours of pay, while Employee 2 receives a full-day’s pay? Is it simply because Employee 2 showed up at all that day? — Steve, California

Can we ask applicants if they have allergies?

08/23/2010
Q: “Does a company have the right to ask applicants if they have allergies? We have employees who go, by themselves, into wetland areas where they are subject to bugs, bees and other animals. We want to prevent hiring someone who is allergic to bees and they fail to keep their medication on them, get stung by a bee and die because they couldn’t get help. Do we have the right to ask if they have any allergies, then not hire due being allergic to something if they are going to be subject to those hazards during work?” — Lauren, Florida

When can an employee also be a ‘volunteer’?

08/16/2010
Q. “We have an employee who works for our city theater on a part-time basis. The employee is also a volunteer for a non-profit organization that sometimes uses the theater. There are times when the nonprofit group must use their own volunteers to run the theater equipment. If our employee, when working as a volunteer for the nonprofit, runs the theater equipment, does the city have to pay the employee?” — M.B., Nevada

Do we have to comply with an out-of-state garnishment order?

08/16/2010
Q. “We have an employee who lives in Arkansas but works for our company at our offices in Texas. His wages have been garnished by an Arkansas court and we have been sent a notice to start withholding the garnishment from his paycheck. We responded to the attorney that Texas didn’t allow garnishment and we were prohibited from withholding the amount from the employee’s wages since he works in Texas. The attorney said that since our corporation is registered in Arkansas, we are subject to Arkansas law and required to apply the garnishment. Can you provide guidance if this garnishment can be enforced against us?” — J.L., Texas

Should vacation leave be used prior to FMLA benefits?

08/16/2010
Q. “Can fringe benefits, such as vacation days, be taken prior to maternity leave benefits? Should fringe benefits be used prior to FMLA benefits?” — G., New Jersey

Worker paid as employee and independent contractor: How do we fix this?

08/16/2010
Q. “I recently began my position. In auditing payroll, I noticed there are a few employees who also have been set up as independent contractors with 1099s. How do we go about fixing this? I understand there will be back pay. Do we deduct what we have already paid them as a contractor?” — J., Iowa

Do the separate divisions of our company count toward FMLA’s 50-employee threshold?

08/16/2010
Q. “Under FMLA, if a company has different divisions with a different business name, tax ID, business license or wholly owned subsidiaries, do those count toward the requirement of 50 employees within a 75-mile radius, just because they are owned by the same parent company?” — C.B., Tennessee