Raising the curtain on a minor hiring issue

Workforce, June, 2003 by Matthew T. Miklave, A. Jonathan Trafimow

Q: My company has just opened a theater in Maryland. My question is this: Can we opt not to hire minors at the theater, or would this be considered a discriminatory practice? Also, if we can opt not to hire minors, can we put this policy in written form?

A: The federal Age Discrimination in Employment Act prohibits discrimination against employees age 40 and older, and therefore would not apply to minors. Some state discrimination statutes, however, prohibit discrimination against much lower age limits (New York, for example, prohibits discrimination against employees 18 and over). Thus, if your state anti-discrimination statute prohibits discrimination against persons under the age of 18 (not likely, but you should check), then there would not be a legal prohibition on your adopting a rule prohibiting the employment of minors.

Keep in mind, however, that the federal Fair Labor Standards Act and the laws of every state regulate the employment of minors. Under the FLSA, minors age 16 and 17 can work in any non-hazardous job, while minors age 14 and 15 can work in any non-hazardous job subject to certain hour limitations.

FMLA Paperwork

Q: I've accepted a promotion within a large corporation to supervise an HR department of a 400-employee, non-union plant. I've come from a plant where if an employee brought in a doctor's note to cover an absence, no attendance points were assigned under our "no fault" attendance policy. Points accumulated only for those who did not present a note. Additionally, very rarely was FMLA paperwork ever completed-my--then-supervisor said we were in compliance with the FMLA minus all of the paperwork.

In my new position, employees have already been taught that unless an absence will keep them from work for longer than three days, no FMLA paperwork will be completed. I'd like to get some feedback on how others keep track of and monitor FMLA leave for a large number of employees. Do you hand employees paperwork every time they present a doctor's note for yesterday's absence or tardy? Must another set of papers (physician certification) be completed each time they visit a different doctor for the same condition? Any help/guidance will be greatly appreciated.

A: We do not think we agree that your company is in compliance with the FMLA "except" for the "paperwork." We would recommend that you sit down and draft an FMLA policy and an internal protocol. (We have some suggestions that we would be happy to share.)

Basically, if an employee might be covered by FMLA, you should send the employee a notice saying, "Hey, you may be entitled to FMLA leave. Want to apply?" (We'd make it more legal than that, but you get the idea.) For a period of time, before disciplining an employee for excessive absenteeism, you will want to review the file to make sure you are not incorrectly dinging (legal term) the employee for an absence covered by the FMLA.

Claiming Wages from Jail

Q: I would be grateful for some guidance with this sticky situation! I was recently contacted by an ex-employee who is serving jail time. He worked for us in Virginia and was terminated in 1997. He stole money from us, stole a company vehicle, and robbed a bank. Now, in 2003, he says we owe him his last paycheck from 1997.

I dug into the records and found [a record of] the last paycheck that was issued in 1997, but I do not have a check number and cannot confirm if he cashed it or not. He says he did not. What is my obligation to this person after more than five years? Can he still claim these wages?

A: Obviously, you will need to comply with state wage and hour laws, and should retain legal counsel to guide you as to your obligations. Here are a couple of issues to consider:

Do you actually owe him the money? This may be a mixed issue of law and fact. However, to the extent you are able to figure out whether the check was sent and cashed, you maybe able to resolve this.

What does he owe you? After all, you explained that he stole money from the company, stole a company vehicle, and robbed a bank. (Did he use the company vehicle to rob the bank?) Can you prove that he stole money and the vehicle? If so, even if you owe him the last paycheck, you might be entitled to offset the wages you owe him from the money he owes you. In addition, even if your company owes him the money, the criminal court may have ordered him to pay restitution to someone else. In short, there may be other claims on this money besides his. You will want to know this before you pay him any money.

Sitting on a Legal Problem

Q: We are a manufacturing company in California. One of our employees happened to mention that he was injured in an auto accident while off work. There is no issue over workers' comp. He did mention that he was in physical therapy and suffering from back pain (this employee works at a desk/computer job). We asked him to provide us with certification from his doctor regarding fitness to work and any restrictions or accommodations needed to assist in his recovery. The doctor responded that the employee would need restrictions on lifting and bending for three to six months and recommended an ergonomic chair.