Q & A: Managing Investigations, Reports, Training & Tardy Employees


Question Corner

Managing Investigations, Reports, Training, and Tardy Employees

By Jason R. Mau

Q: One of our employees is currently approved for intermittent Family and Medical Leave Act (FMLA) leave. He is constantly coming in late or requesting to leave early. He has told his supervisor that when he doesn’t feel well, he is going to come in late. How do we deal with this type of occurrence? Must an employee with intermittent FMLA leave for a chronic health condition be allowed to do this?

A: Not unless the employee can show it is medically necessary.  An employee under the FMLA is allowed to take leave on an intermittent basis or a reduced schedule if medically necessary.  However, the employee is required to make a reasonable effort to schedule the leave so as not to unduly disrupt your operations.  Also, the employee is required to provide notice prior to each need for leave (unless the employer waives the requirement for notice) and to meet all in-house leave-notice requirements.  Finally, the employee must explain the reasons for the needed leave.  It is recommended to hold the employee to these standards, and let the employee know that if the employee fails to make a reasonable effort to schedule the intermittent leave, fails to give notice, or fails to provide sufficient explanation, the circumstances may allow you to delay the FMLA-approved leave, or even deny the leave.  Further, another approach, if you have not already done so, is to require the employee to use all accrued leave before counting these leaves under FMLA.  Hopefully one of these approaches will help curb any potential problems.

Q: An employee was recently injured at work, and the Occupational Safety and Health Administration (OSHA) was contacted. What do we need to do to prepare for an OSHA inspection after an accident?

A: We recommend that you first designate a representative in your organization to interact with OSHA and monitor the investigation, someone that can provide answers during the walk-through.  When choosing a representative, if possible, do not choose someone that was involved in the incident.  The person should also have access to all OSHA records and be prepared to make them available for the inspection.  Finally, be prepared to cooperate, but remember you are not under an obligation to volunteer information.  Also, if needed, you can require an inspection warrant, unless there are exigent circumstances or the inspection area is in plain view.   

Q: We know employers with 100 or more employees must file an EEO-1 report, but what constitutes an “employee”? Is it all W-2 employees, regardless of status (full-time, part-time, and temps), and what if the employee count fluctuates throughout the year?

A: According to the EEOC, an “employee" is any individual on the payroll who is an employee for purposes of withholding Social Security taxes.  This includes permanent employees provided by an employment agency.  But, it does not include any individuals hired on a casual basis for a specified time, or for the duration of a specified job, or a temporary worker.  Regarding your fluctuating-number-of-employees question, you are allowed to select one pay period between July and September upon which to base your count.

Q: If we make a job offer to candidates that is contingent on them passing our training classes, can we make the training classes unpaid? 

A: Under the Fair Labor Standards Act (FLSA) you are allowed to make the training classes unpaid only if they meet ALL of the following criteria:

  • The training is similar to that which would be given in a vocational school.
  • The training is for the benefit of the trainees.
  • The trainees do not displace regular employees, but work under their close observation.
  • You derive no immediate advantage from the activities of the trainees.
  • The trainees understand that they are not necessarily entitled to a job at the conclusion of the training period.
  • The trainees understand that they are not entitled to wages for the time spent in training.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.