Question: We know that anyone making less than $455 a week is considered nonexempt and eligible for overtime pay. But is it OK to pay someone a fixed salary of less than $455 a week? And if so, what happens when that person works more than 40 hours in a week?

Answer: First, you can pay someone a fixed salary of less than $455 a week, according to employment law attorney John Lowe. That person still is considered nonexempt.

Second, if that person works more than 40 hours in a week, you’re obligated to pay overtime. Because of the overtime factor, it’s wise to have the person record the hours worked each week. That’s something you wouldn’t have to do with an exempt, salaried employee who doesn’t get OT pay.

Question:
We learned through a local newspaper that one of our employees was arrested recently for DUI and drug possession. We’re concerned about workplace safety and other issues — his manager said there were suspicions that the employee had used drugs on the job.

What do we do now?

Answer:
Conduct an independent investigation, recommends employment-law attorney Roy Ginsburg.

First, talk to the employee about what happened. If you want to verify his version of the events, you could also get a copy of the police report.

Once you have the facts straight, speak with the employee and let him know you think he has a problem and that you want to help.

If he’s defensive, noncommittal or defiant, those are red flags. You might want to go to the next step, such as requiring that he take a drug test.

Question:
We recently were advised we’re allowed to deny leave under the Family and Medical Leave Act to the highest-paid workers in our company. Is that true? If so, under what authority?

Answer:
You’re probably thinking about the so-called key-employee exception to the FMLA, says litigation expert Denise Drake. But no, you’re not allowed to deny them FMLA leave.

The exception says that key employees who are in the top 10% of the company and who take FMLA leave do not have an automatic guarantee to job restoration. The reason? It’s harder for a company to lose top-level people, hold their jobs open and sustain business until they return.

If  any of your top-paid workers request FMLA leave, advise them they are key employees and that you may fill their position before they return. But you can’t deny them leave.

Question
We’re thinking about having a question on our job application asking if the applicant has ever been charged with a crime.

Is it legal to ask? Can the question cause problems?

Answer
It’s usually a bad idea to ask if an applicant has been charged with a crime. That’s the word from employment-law attorney Larry Peikes. Plus, some states make it illegal to ask about arrests or detentions that didn’t result in a conviction.

Weeding out applicants on this basis could expose the employer to a discrimination claim because members of certain racial and ethnic minorities tend to be arrested with greater frequency than nonminorities.

The safer approach to criminal background checks is to limit your questions to those about convictions and pleas of guilty or nolo contendre.

Question
We have told our employees that overtime must be pre-approved. However, we still have some people who get in early or stay a little late each day, amounting to an hour or two of overtime per week.

Can we avoid paying overtime in those situations if employees didn’t get it pre-approved?

Answer
If employees work overtime, they must be paid for overtime, even if the overtime is unapproved and against company policy, according to Jane Dalton, an employment lawyer at Duane Morris LLP.

She suggests that you:
1. Reannounce your policy. Warn employees they will be disciplined up to and including discharge for violating the policy that overtime is not to be worked unless it is approved in advance. Then have supervisors follow through with discipline for infractions.

2. Instruct supervisors to keep track of time worked. If someone comes in early or leaves late and is working during that time, the supervisor can reduce the hours later in the same week. Otherwise overtime must be paid.

Question:
We’ve heard strong rumors that one of our employees is getting ready to resign to go to work for another company. So, what’s the best approach to take if the employee offers a resignation?

In the past, we’ve let most employees work out their last two weeks after they’ve offered the resignation, but we’re not sure that’s the right course of action.

What is the best approach?

Answer:
It depends on a number of factors, according to HR pro Susan Heathfield. But you generally can make the decision by answering some questions about the circumstances:

Consider letting the employee work the two weeks if –

• the staffing need demands it, and
• the employee is leaving on good terms

Consider letting the employee go immediately if –

• the “next job” is with a competitor
• the manager involved suspects the employee won’t accomplish much by staying, or
• the employee has a history of problems with performance or conduct

The feds don’t do a very good job of defining the term “participant”, but any benefits pro knows that there are people who fall into gray areas and it’s crucial to know whether to include them in the tally.

The following people are considered participants:

• Anyone who is explicitly covered in the plan documents.
• Someone who has made a monetary contribution to the plan (voluntarily or involuntarily).
• Someone who will become eligible to receive benefits once the “contingency for which the benefit is provided” (e.g., workers’ compensation) occurs.
• An active participant – currently in covered employment – in your retirement plan. This includes people who are eligible to defer benefits but decline the option.
•  Former employees in “pay” status (i.e., not yet fully paid out), including those who elect COBRA coverage.
• Deceased employees whose beneficiaries are entitled to receive benefits (count the deceased employee only).

The following people are not considered participants:

• Dependents on the health plan.
• An alternate-payee beneficiary.
• Former employees who are fully paid out, including those who will receive money from an insurance company.
• Employees eligible for your health plan who’ve elected not to participate and aren’t making cafeteria plan deferrals to pay out-of-pocket expenses.

Question
What happens when employees take FMLA leave for one serious medical condition, and then develop another illness while they’re out?

Answer
Their FMLA leave can simply be extended (with proper documentation, of course), says employment attorney Lawrence Peikes. The common situation comes up when an employee plans to be out for a few weeks for a surgical procedure and then needs another few weeks to recover from complications that develop; all count toward the 12-week allotment.

The key fact to explain to employees: They don’t get a new 12-week entitlement each time a new serious health condition pops up — whether the conditions are back-to-back or separate.

Question:
We’re trying to prioritize our training on preventing sexual harassment. Can you give us an idea of where the biggest problem spot is for most companies?

Answer:

Of the roughly 5,000 sex-harassment complaints filed with EEOC last year, the majority of them were based on supervisors’ not responding to initial complaints. That comes from HR consultant Hunter Lott, who’s done harassment-prevention training for firms such as Anheuser-Busch and FedEx-Kinko’s.

Most firms get into trouble because supervisors don’t take complaints seriously, so employees feel forced to go outside the company to get someone to listen to them.

Question:
We’ve had some problems arise out of employees’ dating each other. Can’t we simply implement a no-dating policy for employees?

Answer
Most companies have given up on the idea, says business consultant Hunter Lott. Such policies smack of “babysitting,” and that’s the last thing employers want to get  involved in.

Instead of instituting no-dating policies, a lot of companies are going to what are called “relationship” policies. For instance, such a policy might read: “If your relationship with other employees hampers our ability to do business – or your ability to do your job – you’ll be subject to disciplinary action.”

That ties the issue to strictly business matters and doesn’t unnecessarily attempt to monitor employees’ personal lives.