Answers to six HR questions featuring Bent Ericksen & Associates

Aug. 10, 2009
Some of the toughest HR questions are tackled in this article.

Ask the Expert Series featuring Bent Ericksen & Associates.

Question #1: How many days a week does an employee have to work to be considered a full-time employee?
Answer: The federal Fair Labor Standards Act (FLSA) doesn't define full-time or part-time employment. It's up to the employer to decide how many hours per week employees must work to receive either full-time status or part-time status. Once an employer designates what constitutes full-time and part-time status, that employer must apply it uniformly to all employees.

Question #2: My practice is in California. How long do I legally have after the last day worked in a pay period to provide the employee with his or her paycheck?
Answer: Legally you have up to 10 days. However, we suggest the paycheck be provided as soon as administratively practical following the end of the pay period. Consider using a payroll service to process paychecks since the cost is insignificant given the comprehensiveness of the bookkeeping services provided and the ability to free you from this inappropriate duty. A simple policy could be pay for hours worked between the first and 15th of each month on the 20th and for hours worked between the 20th and the end of the month on the fifth. If the normal pay day lands on the weekend, you could move the day back to the last normal work day.

Question #3: I'm in California. How can we prevent employees from accruing a significant amount of unused vacation time? Can we require that it be used within a certain time period?
Answer: "Use-it or lose-it" vacation policies are illegal in California, so you can’t require workers to use their vacation within a certain time period or forfeit the time. You can, however, place a "cap" on how much vacation someone can accrue. That means an employee will stop accruing additional vacation after their accrued time off reaches a certain level -- for example, four weeks. To avoid problems, make sure you provide workers with a reasonable opportunity to take their accrued time off.

Question #4: My mother-in-law works for a hospital and has suffered from migraines for years. At times, the headaches are so severe she has to miss work. After she called in sick recently, the company fired her. She had 25 years on the job. She is now a 61-year-old unemployed worker. The outcome seems so unfair because she had repeatedly asked not be assigned to certain departments because the work there triggered her migraines, but her requests were ignored. To make matters worse, she applied for unemployment but was deemed ineligible because the company said her termination was "due to misconduct." Are migraines a disability?
Answer: Your mother-in-law may have some recourse but with caveats. The Americans with Disabilities Act (ADA) most likely wouldn't cover migraines. Generally, workers are considered disabled if their illness impairs major life functions, such as taking care of themselves. Migraines are intermittent, so they don't seem to substantially impair a major life role as implied under the ADA.

However, if she can establish a record of impairments because of the headaches, that she is "perceived" as having a disability, or that she could perform her job with an accommodation, then she may be covered under the ADA. If it turns out she's covered, the company may have violated her rights by firing her. In addition, state laws vary and are sometimes more lenient when defining what constitutes a disability. It is advisable to understand your state’s regulations in order to ensure compliance.

Question #5: Due to rising premiums, I’m looking into alternatives to reduce our group health benefit costs. Several employees are on our plan and their spouse’s plan. They are willing to go off of our group plan if we provide them a financial incentive. Is it legal to offer the medical insurance benefits or a cash alternative?
Answer: Yes. It is perfectly legal to offer a fixed "opt-out" payment in lieu of health insurance. In fact, many employers use this method effectively to cut the rising cost of health insurance. This begs the question: How large should you make the opt-out payment? You want to make it sizable enough to induce employees to avoid "dual coverage," but not so hefty that employees choose to go altogether uninsured and take the opt-out payment. Another option: have employees contribute to the premium.

Question #6: An employee recently lost her paycheck, requiring us to stop payment. Can we deduct the bank fee from her next check?
Answer: Probably not. Taking even small deductions out of an employee's paycheck is always risky and can open the door not only to claims for unpaid wages and steep penalties from the Labor Commissioner, but also to expensive litigation. The basic rule is that you can only make a deduction for losses resulting from an employee's gross negligence or willful or dishonest act. It’s unlikely that misplacing a paycheck would qualify. By the same token, you usually can’t take a wage setoff when cash comes up short or an employee breaks equipment. In most cases, it's best not to make a deduction unless you have well-documented proof that the employee intentionally did something wrong.

For more than 25 years, Bent Ericksen & Associates has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or