Human Resource Blog

Yes, drinking on the job would be considered gross misconduct by almost every employer. It is right up there with sleeping on the job, stealing money, sexual harassment, discrimination and bringing weapons to work as the worst workplace behaviors.

Whenever you update your employee handbook, you may want to include a list of items that are gross misconduct. However, normally any transgression for which an employee would be fired on the first offense, is gross misconduct.

A minor transgression for which the employee would be warned but not fired, like tardiness, is not considered gross misconduct. Thanks for the kind words! It is our pleasure to answer your questions.

While most states require that hourly employees be paid bi-weekly, North Carolina permits them to be paid monthly. Yes, you must inform the employees in advance that the payday has been changed. Otherwise, you are violating the North Carolina law that requires all wages to be paid in full on payday.

The best practice would be to let employees know at least one month ahead of time that you will be switching to a monthly payday. Then, issue the final two-week check at the end of one month, and switch to the new payroll schedule the following month.

There are three separate issues here, and we will address them all: Bathroom usage, exceptions, and this employee.

First, OSHA regulations require that an employee be permitted to use the bathroom during their shift. There is no law or *civil right* that requires you to give employees access to the facility to use your bathroom 24/7.

The second issue is exceptions. Unfortunately, making an exception to company policy for an employee seldom works. You are trying to be generous, but it backfires. The employee recognizes the exception as a new policy, and continues to expect daily exceptions. By trying to be generous, you are actually sending mixed messages to this employee.

Under the circumstances, the policy that employees are not allowed on the premises until 15 minutes before their shift is reasonable, and should be enforced. The first time an employee shows up more than 15 minutes early, give a verbal warning. The second time, a written warning, etc. By *making an occasional exception* to the rule, the employee thinks they can always bend company policy. The average employee really does not understand whether *occasional* is 3 times per week or once per year. This type of *exception* is just too confusing for the employee.

So our recommendation is that you have a conversation with the employee and explain that from now on you will have to enforce the company policy with no exceptions. If he arrives more than 15 minutes early, he will be written up. You do not have to kick him out or deny bathroom usage, but after 3 writeups he will be terminated.

However, having said all that, we have concerns about this employee and perhaps the other employees who are sleeping onsite. Without knowing the specifics of your situation, it sounds like this employee could be homeless, and may be using your bathroom to clean up for work. If that is the case, the humane thing to do would be to allow the employees access to the bathroom if possible. You might also have the employee phone 211 from any landline phone (not a cell phone) to find out what services are available in your area.

Unfortunately, no, there is not more detailed information on what constitutes a manual worker. The info from the New York Department of Labor is the final word on this, and even the state courts usually follow that guidance. To be on the safe side, an employer should consider any employee who works with his or her hands (as opposed to a desk job or health care, retail, clerical) a manual laborer.

As far as the purpose behind the law, to get a definitive answer you would have to ask the legislators who passed the law. We will say that 40 or 50 years ago, weekly payment was standard. The lawmakers may have also assumed that those who performed manual labor were low-paid workers who lived from paycheck to paycheck, and needed their money weekly. Today, of course, a plumber makes as much as a dentist, but this outdated law is still on the books.

Yes, there are a few items to keep in mind. Basically a pregnant employee must be treated like any other employee. Pregnancy is not a disability and should not change the way the employee is treated at work. Childbirth usually results in a disability lasting 4 to 6 weeks for a normal delivery and more for a c-section. Some pregnant women have a period of disability late in the pregnancy, and are forbidden by their doctor to work for several weeks prior to childbirth.

From an HR perspective, a pregnant employee is like any other worker and an employee on childbirth disability is like any worker on medical disability for a heart attack, stroke, cancer, etc.  

Your company is too small for the federal FMLA, the Family and Medical Leave Act, which applies to employers with 50 or more workers within 75 miles. Florida has no family leave law at the state level that would apply to smaller employers.

Because FMLA does not apply, there is no law that would require you to grant this employee paid or unpaid time off for prenatal appointments. You can handle this as you would any other absence.

Pregnancy and childbirth are not permanent disabilities, so you are not required to make any accommodations under ADA, the federal Americans with Disabilities Act. In fact, changing the employees duties in any way due to pregnancy may be seen as illegal discrimination.

Generally speaking the federal laws against pregnancy discrimination discussed below apply only to an employer with 15 or more workers. However, the best practice would be for a smaller employer to comply with them. Florida does not specifically have a law prohibiting discrimination based on pregnancy, but since only women get pregnant, such actions are often seen as illegal discrimination based on sex.

Federal law prohibits discrimination based on pregnancy, meaning you cannot take pregnancy into consideration when making decisions about promotions, pay, transfer, working conditions, etc.  This law also prohibits you from routinely requiring a fitness-for-duty certificate from a pregnant employee unless she has taken time off for pregnancy complications or states that she is unable to complete her duties.

Normally the employee is on short term disability for childbirth for 4 to 8 weeks, and may be physically unable to work (per doctors orders) for a few weeks prior to delivery. Under the federal PDA or Pregnancy Discrimination Act, you must treat pregnancy disability and childbirth disability like any other short term disability. If your company would provide benefits such as paid leave or continued group health insurance coverage to an employee who missed several weeks of work due to cancer or a heart attack, you must do the same for a pregnant employee. However, if you do not provide any benefits for a medical condition, then you are not obligated to provide any benefits to a pregnant employee.

After childbirth, you should not allow the employee to return to work until she has a doctors release to do so. If you do, any complications could become a workers comp claim.

From an HR standpoint, if you would terminate an employee who missed 4 weeks of work due to a heart attack, you can terminate this employee when she misses 4 weeks of work due to childbirth disability. Many small employers would permit the worker to take 6 to 8 weeks of unpaid leave and return to her job. Others would terminate the employee when she misses a few weeks of work. Be aware that you are setting a precedent and what you do for this employee generally you must do for other pregnant employees in the future.