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Vacation Bidding

Do you have a list of FAQ’s that relate to a vacation bid process?

There are a few commonly asked questions but, of course the answers are going to depend on the company’s plan/process.

  • What is the vacation plan?
  • What is the difference between a bidding process vs a standard request for time off?
  • What is the bidding order and how is it determined (seniority, performance, skill set, etc…)?
  • Is there a waiting list? If so, how does it work?
  • How will the selection process be conducted? Is there an automated system that will be used? Will there be multiple rounds?
  • When does the bidding open? What is the duration?
  • When are the approved selections distributed?
  • How are changes or cancellations to selections managed?
  • What happens if an employee doesn’t bid enough to cover their full vacation entitlement or doesn’t bid at all? Will vacation periods be assigned? If so, how?
  • Can employees trade vacation periods amongst each other?
  • What happens if an employee transfers or changes jobs during the year?
  • Who is the contact person for questions?


October 17th, 2016, 12:48 PM |  Posted in: Benefits |
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Terminating an EE on STD

I have a company of 6 employees. One of whom went on short term disability due to a car accident on her way to work. I asked her to report weekly to me regarding her status and date to return to work. She agreed. 6 months later she has not contacted me or her supervisor. Can I fire her if she is still on disability?

Short- and long-term disability programs offer income replacement to employees who become unable to work due to an injury or illness unrelated to their job. Though such benefits don’t necessarily provide reinstatement rights, there are federal and state leave and discrimination laws that must be considered.

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons.

The FMLA applies to all public agencies, including State, local and Federal employers, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

With only 6 employees (assuming the aforementioned criteria are not met) you’re not required to comply with the FMLA. Some states have adopted their own leave laws; however, most have the 50 employee criteria like the FMLA. Still, it’s important to be aware if any state leave law exists.

Another federal law to be considered is the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense. A reasonable accommodation can often include a short term leave of absence.

The ADA covers employers with 15 or more employees. With only 6 employees you’re not required to comply with the ADA. Some states have adopted their own discrimination laws; so, it’s important to be aware if such a law applies in your case.

Though the FMLA and ADA may not apply to you, any promises, even implied ones, that you made to the employee must be considered. Did you guarantee the employee a specific amount of time off? If so, it’s important to adhere to your promises. If such time has been exhausted and the employee has not communicated with you, then it’s best to make every attempt to contact her. Call, email, and send her a certified letter. Make it clear in the letter that you haven’t heard from her as per your leave agreement, the leave time has been exhausted (if that’s the case) and that if she doesn’t contact you by a specific date her employment will be terminated. This may sound like a lot but the point is to avoid a discrimination claim.

If the employee fails to communicate with you by the set date then termination may be warranted. Remember to document your attempts to reach her.


October 17th, 2016, 12:19 PM |  Posted in: Termination |
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Employee Files

Should employee files be divided into personnel, medical and training and be kept separate? Who should have access to these records? Am I wrong to think no one should access the medical file except HR and the employee’s supervisor IF there is a need to do so? And all training should be maintained in a separate training log/file? And files should not be accessible by other members of management simply because they are management? Please advise. Thank you.

There can be a great deal of sensitive and confidential information stored in employee files. There are some laws that require certain information to be kept separate and then there are general recommendations for file management.

Medical information should absolutely be kept separate. Basic insurance information like enrollment forms and general doctor’s notes can be kept in the main file but maybe in a separate section that can be removed when necessary. More detailed records such as information regarding leaves under the FMLA and disability/accommodations under the ADA are required to be kept in separate and confidential locations.

Also, Form I-9 and any supporting documentation must be kept in a separate file. It’s best to keep all employees’ I-9 information in one folder for easy access by auditors.

General training information can be stored in the main file unless such documents include physical training exams or fit for duty exams that often include medical information.

Access to an employee’s general personnel file is usually restricted to HR and the employee’s Supervisor/Director on an as needed basis. Of course, Payroll may need to know some information contained in the files but they usually don’t have access to the file itself. Also, some states have adopted laws allowing employees to review their own files as well. But, the information they’re entitled to view is often limited.

You’re absolutely right that no one should have access to the medical file except HR. An employee’s immediate Supervisor/Director may need to be informed of medical related information but that doesn’t really mean he/she should have access to the file. Keep in mind that under HIPAA employers are required to protect the privacy of employee’s health records. So, access to employee medical files should be kept very limited.

No employee files should be accessible by any level of management simply because their management. Files should be stored securely in HR and an HR representative should be present any time a member of management needs to review a file. If a member of management requests to review an employee’s file who is not a subordinate, the need to see the file should be questioned.

It’s ultimately HR’s responsibility to ensure all employee files are kept secure, certain information is kept confidential, and that no documents are removed from the file without authorization.

October 12th, 2016, 9:01 PM |  Posted in: Human Resources Management |
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Employee Pregnancy

I have an employee who notified me, the direct supervisor that she was pregnant at 38 weeks, which was 2 weeks ago. It’s noted in the Office policy that texting is not a form of notification and employees must telephone and speak to the manager or MD. Not following policy is considered a no call no show. I have 2 instances where she has texted that she was in the ER. Once last week she noted she would inform me if she would be returning or not. I never heard from her. She did not communicate with me what her return status was. She returned on that Tuesday without a release from her physician. Then yesterday she texted, again which is against our office policy, that she was headed back to the hospital and would inform me ASAP of her status. It is in our office policy to call in by 6am if you’re not able to make your shift. It cannot be in text or it will not be accepted. At 6pm this evening there was a work release from her OB/GYN stating that she is off until further notice. My medical office is made up of 4 people, we are in Texas. Had we not gotten the notification from the OB/GYN, this would fall under our office policy as a no call no show, and possible termination. Should we turn a blind eye against our policy because of her pregnancy and the Disability Act is invoked not requiring her to notify us?

With only four employees, neither federal nor Texas leave and discrimination laws apply.

Straight from the Texas Workforce Commission:

“If a business has fewer than 15 employees (counting anyone who works for the business, performing services for pay, for each working day in each of twenty or more calendar weeks in the current or preceding calendar year), it is not covered by any employment law relating to pregnancy or disability, and the business would be free to handle the situation in any way it deems appropriate. Of course, a business not covered by such laws would still want to treat its employees as fairly and consistently as possible, if for no other reason than to minimize complaints, unnecessary turnover, and the risk of unfavorable publicity.”

The decision is ultimately yours to make but there are a few things to consider.

When the employee violated company policy by texting her absence the first time, was she counseled or given any warning that another occurrence would result in termination? Also, is it possible that the employee’s condition made it impossible for her to actually call? Maybe her spouse/family member texted you just so you would be aware? It’s fairly uncommon for an OBGYN to notify an employer of an employee’s absence. So, maybe it was a true unforeseen emergency. Though employees are expected to follow call-in policies, there should be an exception or at least some leeway in the case of emergencies.

Also, consider the employee’s overall performance. Is she generally a good worker and has only made a few minor mistakes in the last couple weeks?

Lastly, consider what you’ve promised the employee. Did you guarantee her some time off for childbirth and baby bonding? And you’re only considering going against that promise because she failed to follow the call-in policy when she was in the ER?

Based on the information provided, it may be best to retain the employee and keep any guarantees of continued employment.


October 12th, 2016, 8:36 PM |  Posted in: Attendance Management, Termination |
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Jury Duty for Commissioned Sales

We have a company policy that any sales person off, for any reason, longer than six weeks loses varied percentages of commissions on accounts assigned to them. Would enforcing this policy violate Nebraska’s law regarding not being penalized for serving on jury duty if the jury panel lasted over six weeks?

Nebraska Statute 25-1640 states:

“Any person who is summoned to serve on jury duty shall not be subject to discharge from employment, loss of pay, loss of sick leave, loss of vacation time, or any other form of penalty, as a result of his or her absence from employment due to such jury duty, upon giving reasonable notice to his or her employer of such summons. Any person who is summoned to serve on jury duty shall be excused upon request from any shift work for those days required to serve as a juror without loss of pay. No employer shall subject an employee to discharge, loss of pay, loss of sick leave, loss of vacation time, or any other form of penalty on account of his or her absence from employment by reason of jury duty, except that an employer may reduce the pay of an employee by an amount equal to any compensation, other than expenses, paid by the court for jury duty. Any person violating the provisions of this section shall be guilty of a Class IV misdemeanor.”

So, it appears that reducing the commissions of a salesperson for absences due to jury duty is unlawful. It’s best to amend your policy to exclude jury duty.

October 12th, 2016, 8:09 PM |  Posted in: Compensation |
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