Mark Adams, editor of Louisiana Employment Law Letter, answers the 10 most common workplace questions.
A Yes, but if your previously salaried employee was exempt under the Fair Labor Standards Act’s (FLSA) job duties test, he will be nonexempt after the conversion to hourly even if his job duties don’t change, meaning you’ll now have to pay for overtime.
Q When an employee is consistently late, apart from giving him a verbal and/or written warning, is docking his paid time off (PTO) hours allowed?
A If by “docking” you mean making him use PTO to cover the times he’s late, yes. Moreover, if your employee is nonexempt, you can dock his regular pay when he runs out of PTO. On the other hand, if he’s exempt and runs out of PTO, you can give him a warning, but you can’t dock his regular pay.
Q A nonexempt employee’s wages were accidentally increased by $2 an hour six months ago. The employee never came forward with the information, and we just discovered the error. Can we take back the overpayment through prearranged payroll deductions?
A Yes, as long as your employee is left with gross pay at least equal to minimum wage for all hours worked after the prearranged deductions.
Q We would like to start making employment contingent on successfully passing both a drug test and a physical. Is there any legal reason we can’t require a physical?
A No. As long as the physical is job-related and a job offer has been made, both drug tests and physical exams are permissible before employment begins. In other words, you can make the job offer contingent on passing a drug test and a job-related physical.
Q If staffers volunteer to go out of town for training, do we have to pay travel time or overtime? We pay for flights and the hotel, give them a stipend, and pay their regular wages while they attend the training.
A Yes. There is no such thing as an unpaid “volunteer” in the private-sector workplace. So travel time during regular work time, even when employees “volunteer” to travel, must be paid and counted for overtime purposes.
Q Can we require an employee to work overtime? We currently have an eight-hour shift that we would like to expand into a 10-hour shift for approximately three weeks to help cover someone who is out on leave.
A Yes, unless your employee has a disability that prevents him from working overtime and you can excuse him from overtime as a reasonable accommodation. That, however, has to be evaluated on a situational level.
Q If an employee receives a pay raise, does she need to fill out a new W-4?
A No. An employee need not fill out a new W-4 unless she changes the number of dependents, marital status, or withholding rate.
Q One of our employees was involved in an accident while driving a company car. Since the employee was at fault, his manager wants to make him pay for the repairs. We currently don’t have a policy covering this type of situation. May we require the employee to cover the cost of the car repairs?
A Yes, but be sure to put the agreement in writing and have it signed by the employee. Additionally, if the agreement will involve payroll deductions, make sure the employee is left with gross pay equal to minimum wage for all hours worked.
Q An employee recently put in her two-week notice, but her manager went ahead and removed her from the schedule. Are we obligated to pay her for the time she was scheduled for those two weeks?
A No. When an at-will employee gives notice, you have no obligation to keep or pay her through the end of her notice period.
Q Are we allowed to ask job candidates for a copy of their most recent performance evaluation from their previous employer when they come in for an interview?
A Yes, but if a candidate’s last evaluation was bad, expect him to say he doesn’t have a copy.
Mark Adams, an editor of Louisiana Employment Law Letter, is a senior partner in Jones Walker’s labor relations and employment practice. He can be reached in New Orleans at email@example.com or 504-582-8258.