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Question:
We have an employee who has an illness covered by the Americans with Disability Act. The employee provided us with a letter from her doctor stating that she needs to be able to work from home 2 to 3 days per week. This employee is a Team Lead and we need her to be in the office each day supervising her team.

Would it be reasonable to demote her, change her to part-time status, and only pay for the hours she works in our office?

Answer from Jenny, SPHR, SHRM-SCP:
 
The Americans with Disabilities Act (ADA) requires that you engage with employees in an “interactive process” to determine what is reasonable accommodation. However, you certainly are not required to allow her to work from home in her current capacity if it such an accommodation would be unreasonable.

It is permissible to reduce an employee’s work schedule and pay to accommodate a disability. You’ll want to be more careful about a “demotion.” Can she still manage the few days a week she’s in the office? If so, you should consider whether a demotion is necessary, as it could certainly appear discriminatory.

If allowing her to work in her current capacity as a part-time employee is not feasible, a demotion may be reasonable. In that case, if she is an exempt employee currently, you should come up with a fair hourly rate of pay in line with the nature of the work that she will be performing and temporarily transfer her to a part-time, non-exempt position. Just keep in mind that if she’s non-exempt, you’ll need to pay her for all time worked, even if she’s not in the office. And she will be an overtime-eligible employee.

Before you decide what to do, you and the employee’s manager should sit down with her in an interactive process meeting. In that meeting, you can explain why working from home in her current capacity is not feasible and brainstorm other options with her. It’s important not to make any commitments in the meeting. Rather, it should be a time when both you and the employee suggest effective accommodations.

After your interactive process meeting, you should meet with her manager to discuss what options are the most viable. It’s important to consider the employee’s preferences, but this certainly isn’t the only consideration when making your decision. Do keep in mind, however, that “reasonable accommodation” under the ADA should be interpreted broadly.

 
Over her 15 years of experience, Jenny has specialized in helping small to mid-sized businesses across a variety of industries reduce their risks and manage employee relationship issues. Jenny holds a Bachelors of Business Administration (BBA) degree in Human Resources Management from the University of Georgia and a Masters of Business Administration (MBA) degree with a concentration in Human Resources Management from Georgia State University.
Question:
What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance?
Answer from Emily, PHR:
 
The use of a performance improvement plan (PIP) can help reduce the risk inherent in any termination. A PIP is used to help employees whose performance has slipped, become inconsistent, or otherwise needs improvement.

It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination. If you’re terminating for poor performance, this documentation should include past warnings for poor performance, explanations of the consequences for the employee if they didn’t improve, and evidence that the employee failed to do so.

A great way to do all this is with a PIP, which specifies your expectations for employee performance, defines what success looks like going forward, sets regular meetings with the employee to discuss their progress, and explains the consequences for failing to meet and sustain improved performance within an established timeframe.

If the employee continues to underperform or fails to sustain improved performance, you may need to move on to termination. If you’ve been using a PIP, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for a termination.

 
Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.
Question:
Can an employer legally make their employees use their accumulated vacation hours?
Answer from Sarah, PHR, SHRM-CP:
 
Yes. An employer can tell an employee that they need to take time off. However, that rarely bodes well for the morale of the employee if they don’t want to take the time off.

Some employers have a “use-it-or-lose-it” policy where any remaining vacation time is lost if unused by a certain date. But these kinds of policies are not legal in all states. If your state doesn’t allow use-it-or-lose-it, or the employee isn’t willing or able to take off as much time as you would like, you could instead pay them for the hours they’re unable to use. This option is acceptable in every state and reduces the potential for low morale.

If you’d prefer that employees use up the time, it’s best to give them at least three months’ notice (even more is better) so they can plan for what they’ll do with their free time and coordinate with friends and family.

Be sure that you’re applying these policies and practices consistently across the organization. And if you’re introducing a new standard like use-it-or-lose-it, or payout on December 31st, make sure that employees are made aware of the policy in writing.

 
Sarah has extensive Human Resources experience in the legal, software, security and property preservation industries. She has a Business Communications degree from Villa Julie College (now Stevenson University) and a master’s certificate in Human Resources Management and a Strategic Organizational Leadership certification from Villa Nova University. Sarah is also a member of the National Society of Human Resources Management and has managed the HR function for small startup companies to mid-sized/large organizations.
Question:
What do you advise regarding screening social media accounts during the hiring process?
Answer from Emily, PHR:
 
We strongly recommend against reviewing a candidate’s social media accounts during the interview process. By doing so, you could be exposed to information about the protected classes to which your candidate belongs. For instance, if you went to their Facebook page, you might discover their race, age, or religion. If your ultimate hiring decision was challenged, you would need to prove that those characteristics were not a factor in your decision.

We recommend basing hiring decisions only on the information you obtain through the application, resume, interviews, and reference checks. The goal of the application and interview process is to find the most qualified candidate for the position you’re trying to fill. You shouldn’t need to get into the private lives of candidates to make that determination, and the risk of doing so makes it inadvisable in any case.

 
Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.
Question:
We want to hire an administrative assistant. Can we classify this person as an independent contractor during a 90-day try-out period and then, if they work out, hire them as a full-time employee at the end of the 90 days?
Answer from Monica, SPHR, SHRM-CP:
 
The short answer is no.

It’s highly unlikely that an administrative assistant would meet the criteria for classification as an independent contractor. The IRS and the U.S. Department of Labor, along with state agencies, have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with particular attention to who controls when, where, and how the job gets done, as well as who has the opportunity for financial profit or loss. Administrative assistants typically do not have that level of control over their work, so they’ll almost always be classified as employees.

I understand that you’d like to hire the individual on a trial basis, with the possibility of continued employment. You can do this by offering them temporary employment. During the 90-day period, make sure that you provide the employee with clear expectations for the position and success in the role. If you elect to end their employment once the 90 days are up, you should document why they are not being considered for continued employment.

 
 
Monica has held roles as an HR Generalist and Payroll and Benefits manager at a large ski resort, providing HR guidance to more than 500 employees. She also has HR experience in the healthcare field and the non-profit world. Monica holds a Bachelor of Science degree from Linfield College.
Question:
A non-exempt employee, forgetting that a meeting offsite had been cancelled, clocked in at the office and then drove to the meeting. He was halfway to the location before he remembered the cancellation. He then returned to the office and clocked out. His clock time came to 25 minutes. Since he had been notified of the cancellation and hadn’t done any work, do we have to pay him for this time?
Answer from Kyle, PHR:
 

Wage and hour law requires that employees are paid for all time that they are “suffered or permitted” to work. The question here is whether his attempt to go to a cancelled meeting would count. As the employee had been previously notified of the cancellation and had not actually performed any work, you could likely make the case that it should not be counted as working time. However, given the small amount of time and the fact that there is some risk the employee could claim he was working, many employers would choose to go ahead and pay the employee for the 25 minutes as he was making an effort to do work. In cases like this, it’s simply not worth risking a wage claim.

I do recommend that you talk with him about remembering to double check his schedule before he clocks in and drives to any secondary locations. If this forgetfulness has been a repeated pattern, you might consider whether formal disciplinary action is appropriate.

 
Kyle joined us after six years of freelance writing and editing. He has worked with book publishers, educational institutions, magazines, news and opinion websites, successful business leaders, and non-profit organizations. His book, a memoir about grief and hope, was published by Loyola Press in 20
Question:
One of our employees refuses to sign the handbook. What should we do with her?

 Answer from Kara, JD, SPHR:

 

First things first, talk to her about why she doesn’t want to sign the handbook. There may be an easily resolved misunderstanding about what her signature on this document means.

If that conversation doesn’t solve the problem, and you still want her to work for you, she needs to be told that failure to sign the handbook does not mean she is exempt from the policies and procedures within it. She will be expected to follow the same rules and will be held to the same standards as her co-workers, regardless of whether you have her signature on file.

If she persists in her refusal to sign, ask her to write “I refuse to sign” on the acknowledgement form, along with the date. You should write “employee refused to sign” along with your own signature, and if possible, call in another manager to witness this and sign off as well. Make sure you document (right on the acknowledge form is fine) that you told the employee she will still be expected to follow the policies and would be subject to discipline for falling to do so, just like everyone else.

 
Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.
Question:
One of our employees has chicken pox. Is it okay to tell our other employees about this condition?
Answer from Eric, SPHR, SHRM-SCP:
 

I recommend informing employees that they may have been exposed to chicken pox, but I would not reveal the name of the employee who has the condition. I would also limit the announcement to those employees who have a need to know, i.e., those who may have come into contact with the infected employee or those you know to be immunocompromised.

You do not have to allow this employee to come to work while infected. However, if they say they are no longer contagious and would like to return, you can require the employee to provide a doctor’s note to that effect. Once you have the note, you can decide how best to handle the situation based on what the doctor recommends.

 
Eric has extensive experience in HR, management, and training. He has held several senior HR positions, including as the HR & Operations Manager for an award-winning interactive marketing agency and as HR Director for a national law firm. Eric graduated with a Bachelor’s of Science in Economics from the University of Oregon with a minor in Business Administration.
Question:
Can we ask an applicant why they are leaving their current job?
Answer from Monica, SPHR, SHRM-CP:
 

Yes, you may ask a candidate why they left a previous job or why they are looking to leave their current job. It’s fine to ask this question during the interview, but we recommend you collect this information ahead of time by asking about it on an employment application. In the section where the applicant lists their previous employment experience, you can ask that they provide their reason for leaving each job. When you see the reasons an applicant left previous positions, you may spot trends in the applicant’s employment history. These trends may be cause for follow-up questions during the interview or reason enough not to schedule an interview at all.

If you ask about previous or current employment during the interview, be mindful of the direction the response goes. As with all interview questions, you’ll want to redirect the candidate if they start to share sensitive information. For example, if a candidate says they left past employment due to medical reasons, you’d want to steer them away from sharing any details about the medical condition and refrain from documenting anything about it. Instead, you could ask them to simply state whether they provided notice of their need to resign and whether they left on good terms.

 
Monica has held roles as an HR Generalist and Payroll and Benefits manager at a large ski resort, providing HR guidance to more than 500 employees. She also has HR experience in the healthcare field and the non-profit world. Monica holds a Bachelor of Science degree from Linfield College.
Question:
An employee has requested company wage guidelines. Are we required to show these to them?

 Answer from Margaret, PHR, SHRM-CP:

 

No. Some employers choose to disclose the salary ranges for jobs, but you are not required to show an employee your company wage guidelines, nor do you need to share with them what other employees make or what criteria you use to determine their individual salaries.

However, you may need to allow employees access to their own personnel file or payroll records upon request if doing so is required by state law or your company policy, and I would not advise preventing employees from discussing their wages or other terms and conditions of their employment. Section 7 of the National Labor Relations Act protects the right of employees to discuss these matters with each other.

In this case, the employee is presumably asking because they believe some wages – quite possibly their own – are not fair. They may also have information about how much their co-workers are making. I recommend that you be prepared to have a candid discussion with them about why they are paid what they are paid and the company’s compensation strategy or philosophy in general. Although you aren’t required to have such a discussion, chances are something is brewing and a conversation may help deescalate the situation and make them feel heard.

 
Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.