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.

We have a company policy banning such use of our computers and Internet access. Are we on safe legal ground if, without the employee’s permission, we examine his computer to figure out which sites he’s been accessing and whether he should be disciplined?

Answer:
Generally speaking, employees have little or no expectation of privacy when it comes to company equipment and resources, including employer-provided Internet access. That’s the opinion of Larry Peikes, an attorney who specializes in employment law for the firm of Wiggin and Dana.

Consequently, it’s difficult for an employee to claim the employer invaded his or her privacy by inspecting or monitoring the use of its own computer. You’re wise to publish a specific policy about Internet use. That eliminates any claim that the employee was unaware of the potential for monitoring.

Question:
Does attention deficit disorder (ADD) qualify as a disability?  If so, how far does a company have to go to accommodate someone with ADD?

Answer: 
Each case has to be considered separately, says employment attorney Jonathan Segal, but ADD is often regarded as  a disability.

Two questions to ask an employee with ADD (after,
of course, getting medical documentation of the condition):

1. What can’t you do?
2. What do you want us to do to accommodate you?

Employers don’t have to change job requirements and standards to accommodate a disability. So if the person says he or she can’t meet deadlines because of the condition, and meeting deadlines is part of the job, that could be grounds for termination. But if the employee says, “I can do the job (and meet deadlines) but I need a quieter workspace, a different computer, etc.,” the company must decide if such steps would be reasonable.

Question:
We’re finding it necessary to go through a layoff, and one of the employees we have to let go is on FMLA leave. Are we on safe legal ground if she’s included in the group of laid-off employees?

Answer:
Probably, but keep one thing in mind, suggests Linda Hollinshead, an employment-law attorney with Wolf, Block, Schorr & Solis-Cohen. If the employee files a complaint that the company laid her off because she was on FMLA leave, the burden of proof falls on the company to show that the leave had nothing to do with the layoff.

Showing that she was part of a team being laid off is usually enough to meet the standard of proof. But you can see how you might have a problem if she was the only one laid off. Then you may need even more backing, such as documentation showing she was the lowest performer in her group or the one with the least seniority — if you’re using either of those as a criterion for deciding.