These are just some of the typical questions our consultants answer every day. Click a question to read the answer. If you need more details or to know how the answers may apply to your organization, please give us a call. You can also use the fillable form on the Contact Us page to pose a question or to make a suggestion for our FAQ page.
Americans with Disabilities Act
May an employer ask all employees what prescription or over-the-counter medications they are taking?
It is traditional for employers to include questions on prescription drug usage in a substance abuse plan and to ask for employees to report such usage in all cases where performance may be impaired. Under the EEOC’s guidance, the federal agency would find such questions illegal under the ADA unless the employee is in a position where prescription or over-the-counter drug usage would affect public safety. An employer also may be able to argue that any other situation where another employee potentially might be physically harmed also could be appropriate for coverage under the reporting requirement. If you, as an employer, have such a provision in your substance abuse program, it may be advisable to eliminate that requirement until the EEOC’s regulation has been tested in court.
May an employer ask all employees what prescriptions or over-the-counter medications they are taking?
Is it okay to ask questions about prescription drug usage as part of our substance abuse plan?
What benefits are part-time employees entitled to?
Can we legally transfer vacation time off into sick leave to help reduce the balance of a staff member who has negative sick leave balance? If that member resigns or is terminated before the sick leave is paid back, can we legally deduct that from their final paycheck?
How long does COBRA coverage last?
Is it possible to be exempt and non-exempt at the same time?
Is an employee protected by the FLSA anti-retaliation provision if s/he is discharged for making an internal complaint?
What is the difference between having a progressive disciplinary policy versus a corrective action policy?
Does an organization need to take any actions about an employee who is known for making off-color remarks and inappropriate jokes if no one has complained about him?
May an employer discipline an employee who reports to work under the influence of drugs or alcohol, even though the actual usage occurred off premises during non-work time?
Is an organization in compliance if employment posters are posted only on their organization’s intranet?
- The Fair Labor Standards Act (FLSA) regulations, for example, require employers to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy.” (29 CFR 516.4)
- Required posters must be displayed “so they are easily visible to the intended audience,” (existing and new employees) according to the U.S. Department of Labor instructions found in Workplace Poster Requirements for Small Businesses and Other Employers.
- Executive Order No. 11246, which governs affirmative action by federal contractors, indicates that required posters must be displayed in “conspicuous places accessible to all employees, job applicants and union representatives” (41 C.F.R 60-1.42).
The Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to post a notice “prominently where it can be readily seen by employees and applicants for employment.” (29 CFR 825.300) Furthermore, FMLA states that “where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall be responsible for providing the notice in a language in which the employees are literate.” The FMLA does not clarify what constitutes a significant portion, so employers may wish to err on the side of increased communication. We encourage you to be in compliance by visiting our Labor Law Posters webpage to order your posters for each of your facilities. Oregon employers can download free posters from the Bureau of Labor and Industries’ website, http://www.oregon.gov/boli/TA/Pages/Req_Post.aspx.
Is our organization required to give veterans the day off in observance of Veterans Day?
How is part-time defined?
Is an employee who is involved in a car accident while running company-related errands covered by Workers’ Compensation and who is responsible for an employee-owned vehicle?
What are the rules regarding meal breaks and rest breaks; and do the rules regarding meal and rest breaks differ for part-time and full-time employees?
Do the rules regarding meal and rest breaks differ for part-time and full-time employees? And may we require employees to take their meal periods on company premises?
Do employees have a right to privacy in regard to their desks, computers, lockers, etc.?
How can we prevent employees from access to inappropriate use of the internet during work hours?
If driving is an essential part of an employee’s job and this is reflected in the written job description, how do we handle the situation if the employee’s license has been suspended?
Is employee time spent donning (putting on) or doffing (removing) required to be paid?
When are employees required to be paid for overtime?
When and why should an organization conduct an internal investigation, and when should it consider having an external investigation performed?
In determining who should conduct your investigation, employers should examine the employment issue, including the severity of the allegations and available resources. Investigations can be outsourced or they can be conducted by someone within the organization. Always keep in mind that the purpose of an investigation is to gather facts so that the organization can make a credible determination as to what happened in a given situation. The person conducting the investigation should be impartial and objective. Even the appearance or perception of partiality can damage the investigation and usefulness of an investigation. As well, the investigator needs to have the necessary skills and training to conduct the interview. This person needs to be able to gather information from sometimes reluctant sources, to determine the individuals to interview, what to tell them regarding confidentiality and need-to-know, determine the real issue and separate it from ancillary issues that arise, and be able to evaluate the information gathered and provide recommendations. In choosing your investigator, also look at the potential for this issue going to litigation. The stronger the charge, the greater the likelihood it will be litigated, and the more reason to look at outsourcing the investigation.
How long do I have to hold a job for an employee who is out due to a Workers’ Compensation injury?
What leaves are employees entitled to and what are the requirements?
There are two main federal leave laws: the federal Family/Medical Leave Act (FMLA) and the Uniformed Service and Reemployment Rights Act (USERRA). Under FMLA, employees are entitled to twelve weeks of unpaid leave if they have worked 1,250 hours in a twelve-month period for an employer that has 50 or more employees within a 75-mile radius. Employees may take this leave for the birth or adoption of the employee’s child, to care for a family member with a serious health condition; and, the employee’s own serious health condition. Additional qualifying events for FMLA include military exigencies and to care for a covered service member who is a next of kin. Under USERRA, any employee called to military duty, whether voluntary or involuntary including training, has re-employment rights when they return from the service, regardless of how long the employee has worked for the employer and the size of the employer.
There are additional state leave laws that may or may not entitle the employee to more job-protected time off. Specific Oregon leave laws include crime victims, domestic violence and Oregon Family Medical Leave (OFLA) which is similar to FMLA. Washington also has job-protected leave for victims of domestic violence, employees who serve as volunteer emergency personnel, and the Family Leave Act (FLA) (which mirrors the federal FMLA) Consult your state Department of Labor for state specific regulations.
More details regarding many of these leaves are available in the HR Answers’ Resource Guides and at the following Department of Labor websites: http://www.dol.gov/elaws/userra.htm and http://www.dol.gov/whd/fmla/ There are posting requirements for FMLA, USERRA, and many of the state and local leaves.
Does an employer have to offer sick leave to employees working in Oregon?
Employees earn 1 hour of sick time for every 30 hours worked, up to 40 hours per year. Once an employee has worked 90 days, they are able to access the time. Leave can be taken in as little as one hour increments. The sick time can be used not only for the employee’s own illness, but also for medical appointments, family member health care, issues caused by domestic violence, stalking, or sexual harassment, and in cases of business or school closure because of public health emergency or any absence covered by the Oregon Family Medical Leave Act.
For more details see the BOLI website. http://www.oregon.gov/BOLI
Are there other states and/or localities that require employers to offer sick leave?
Where can I learn more about Seattle’s sick leave ordinance?
What is an employer’s responsibility for Jury Duty?
In addition, Oregon does not allow employers to require employees to use any vacation, PTO or other available paid time while serving jury duty. Oregon employers with 10 or more employees are required to maintain health, disability, life or other insurance coverage while employees serve jury duty.
What forms do I need to complete when I hire an employee?
Is it true that job offers should be in writing and should we change our policies to make such an offer in writing?
Which is a more appropriate term to use to describe the first 90 days of employment: “probationary period” or “introductory period?”
Policies & Handbooks
Do employers need to change their policy(ies) on marijuana use in states where marijuana is legal?
What are the benefits of having a policy manual or employee handbook? Does every policy become contractual?
To deter a policy from being contractual, it’s always a good practice to use a disclaimer in your policy manual or handbook. Here’s an example: This employee handbook is not intended to be a contract or any part of a contractual agreement between the employer and the employee. The employer reserves the right to modify, delete, or add to any policies set forth herein without notice and reserves the right to terminate an employee at any time with or without a specific cause. In addition, avoid using phrases such as “permanent employee.” A more appropriate phrase is “regular employee.”
Is it a discriminatory practice to not include a certain holiday (e.g. Martin Luther King’s birthday and Good Friday) as a paid holiday, especially if an employee feels it is an important day to observe?
Contrary to what many employees think, there is no law stating that organizations have to provide any paid holidays. Of course, in this employees’ market, it may be difficult to find employees willing to work for an organization with minimal benefits.
May an employer prohibit employees from discussing their pay with one another?
Under certain circumstances employers are permitted to treat salary information as confidential if there are legitimate business reasons for the confidentiality that outweigh the protected interest of employees in discussing wages. For example, an employer may be able to discharge an employee who steals confidential wage information. There is also a practical reason for not attempting to prohibit or curtail co-worker pay discussions. Prohibitions are issued for reasons. Such a prohibition starts employees wondering why they can’t talk about pay. Is there something the company is trying to hide? Is the program not fair? What will I learn by talking about this that the company doesn’t want me to know? These questions lead to employee rumors and speculation. No employer needs that. If the system and pay levels are believed to be fair and market appropriate, let them talk.
What questions should I avoid asking when conducting an interview?
Questions can be inappropriate even if the questioning is not along the lines of governed protected classes. Personal questions are generally not okay. For instance, you may believe that you want to know if your female candidate has children because then she might take time off for childcare. This may seem like it is alright to ask for the business purpose of wanting individuals at work on a consistent basis, but this would be an illegal question, especially if only asked of female candidates. The bottom line is whether or not the need to know is for legitimate business purposes.
Can I run credit checks on prospective employees?
What is a confidentiality agreement and who does it protect?
Is it acceptable to request an applicant to supply his/her social security number on an application for employment?
Is it acceptable on an employment application to inquire about a candidate’s ability to speak or read foreign languages?
How can I maximize the chance of having a non-compete agreement enforced by court?
If there is legitimate business need, the reasonableness of the agreement will then come into consideration. Most courts view one year, no more than three (though one is more accepted), agreements are fair if they are not too limiting as to where the individual can go to find employment. This ties into the geographic scope. Limiting the individual by saying you cannot work anywhere in the United States would not be enforceable. Though there is no set mile radius, any area as small as the town to as large as the whole state has been found to be enforceable. Finally, a reasonable scope gets into what specific work is not allowed to be done by the individual bound by a non-compete. If an individual could go to work for a competitor without divulging anything, restricting this employee would probably not be considered reasonable.
The reasonableness in time, scope and geographic location ultimately maximizes your chances of having your covenant not to compete enforced by courts. Ultimately, legal counsel should be used to protect yourself should you choose to use a non-compete.
Though any level of employee can be required to sign such an agreement, when it comes to enforcing one in court, those employees who could truly affect the company’s trade secrets, should be required to sign one. For instance, your receptionist has probably not been exposed to company secrets, nor is providing a unique function for your company that could damage your business if the individual were to leave. Requiring this individual to sign an agreement and then trying to enforce it would not be reasonable. However, anyone who is key to the success of the company should be required to sign such agreements. Key employees should definitely be issued a non-compete agreement to prevent them from going to work for a competitor.
May I refuse to hire an employee if I receive an unfavorable reference check?
However, if the unfavorable information you have received is not job-applicable, or is information you should not have, you may not be able to base your decision solely on the background check. For example, in the course of your check you discover the candidate has filed numerous worker’s compensations claims. It is illegal to discriminate based on the filing of Workers’ Compensation claims and refusing to hire this candidate solely for this reason would expose the organization to a risk of a discrimination claim. This is information you should not be asking and cannot use for your decision.
When conducting background checks make sure the questions are job-related and non-discriminatory. Furthermore, it is important to have the candidate provide a written release. This protects former employers from being sued for providing accurate information. The bottom-line is if the information you have is job-related, legal information to have and may result in a negative impact to the organization, you can refuse to hire that individual.
If an employee resigns, when must wages be paid?
What should I know and review in regard to terminating an employee?
Many of the risks inherent in terminating an employee have to do with possible claims of discrimination and/or wrongful discharge. There are additional laws which impact the manner in which we may terminate an employee, and steps we need to take upon termination. It is impossible to list all laws that might cover this issue, but here are the more important ones.
Some major laws dealing specifically with discrimination: Title VII of the Civil Rights Act and amendments, Pregnancy Discrimination Act, American’s with Disabilities Act, Age Discrimination in Employment Act, Family and Medical Leave Act, Immigration Reform and Control Act, Workers’ Compensation, OSHA, and a variety of state and local laws. Basically, you cannot terminate employment based on a characteristic protected by law, such as their race, age, use of family and medical leave, etc. You also need to be careful of an adverse impact upon such a class of employees, such as a layoff that impacts only workers who are over 40 years old.
Other laws that impact termination of employment: Workers’ Adjustment and Retraining Notification Act (WARN) dealing with large layoffs or plant closings, Consolidated Omnibus Budget Reconciliation Act (COBRA) dealing with employee benefits and notification to employees and covered dependents, Fair Labor Standards Act and state wage and hour laws dealing with final pay issues. Also, some states require a written service letter (Oregon doesn’t, but Washington does) at the request of the employee, which must provide the reason for termination.
Check all state and local laws which may apply.