Questions About Employment Law

Q. I use written employment contracts with a few but not all of my employees. Any issues with that type?

A. Written contracts may or might not be used to memorialize a job relationship. An employer may possess strong business reasons to offer contracts to some, but not all, workers. This can be in a company's discretion, provided that contractual rights aren't given to some employees and refused to others for some unlawfully discriminatory reason (e.g., race, gender, national origin, and age).

Q. Can an employer establish different probationary periods for new workers?

A. An employer is free to set up a probationary period for new employees, during which a worker may be terminated with or with no reason. This may make the employer vulnerable to a claim of discrimination while different probationary periods may be established for different employees, or various kinds of workers. Therefore, an employer should be prepared to justify any gaps.

Q. Is there ever a time when an employer or prospective employer can differentiate between two employees or candidates based on sex, religion, age, etc.. ?

A. Yes, there certainly are instances where a few of these are "bona fide occupational qualifications" for work. For example, only men may qualify for of a particular age for the role of a teenaged boy, and man roles in a film. It is acceptable for a kosher deli to require its butchers to be Jewish. However, colour and race are not contemplated bona fide occupational qualifications.

Q. Can a firm insist that its non-exempt workers take paid time off instead of cash for working overtime?

A. Generally (and surprisingly), 'comp time' (compensatory time off granted instead of overtime pay) is ILLEGAL under federal regulation. Under federal law, if employees work more than 40 hours in a work week, then they must be PAID for overtime in time-and-a-half. This applies to most non-exempt employees in all states. Employers may give time off during the exact same week they work additional hours (e.g., work 10 on Monday, operate only 6 on Tuesday), but when they cross the 'greater than 40 hours in a week' threshold, they are entitled to overtime pay. Comp time is allowed within a single pay period (e.g., they may be able to take some time off next week if they work overtime per week), but when it isn't in the exact same week, the comp time must be given in time-and-a-half (e.g., 1.5 hours of time off for each hour of overtime worked).