Q. I have an employee who has/ is having a relationship with another employee in another department. Outside of the moral issue (as one of them is married) what can be done to address this without being overly aggressive? Due to their relationship one tends to give special attention to the issues of the other but hasn't ignored other work to the point that you could say they are not doing their job. What advice can you share?

A. First of all, I would get your HR organization involved. If you’re too small to have an HR organization, I would obtain the advice of outside council. Also, I’m assuming there is no direct or indirect reporting relationship? If so, then immediate intervention would be required (and hopefully, your business has a policy prohibiting dating direct and or indirect line reporting relationships). If there is no direct line reporting relationship, we’re dealing in very delicate territory. For starters, I would sit with your employee and mention that you’ve become aware of this situation, and remind the individual that no special attention, favors, priorities, etc. can go to the other individual or other individual’s department. Reinforce the ground rules that disciplinary action could occur if this became the case. I would also have the HR organization sit with the individual who is married and increase his/her awareness that this has come to their attention, and the Company is concerned about the potential ramifications. He / She might deny the allegation. Or he/she might say, “it’s none of your business – I’m doing my job.” Again, a very delicate situation that would require additional information to pass along additional guidance. I strongly advice obtaining the input of HR and legal before proceeding much further.

— BOB KELLEHER

Q. We generally interview 2-6 prospective hires for a vacancy. After the interview process is over, how long should we keep notes from interviews of persons not hired?

A. The timeframe for retaining solicited candidate resumes may vary by state. In general, 2 years is the minimum you are required to keep them on file. I suggest you keep interview notes for the same duration. It is important to note that technically, you should keep interview notes separate from the resume and that you should not make notes on the resume. It is also a good idea to adopt a record retention policy to ensure that you adopt a consistent approach and mitigate organizational risk.

— TRACY BURNS-MARTIN

Q. I am the HR manager for our department. We have a female minority employee who has abused her PTO time. She also does little or no work, but always seems to reap the company incentive rewards. The onsite manager has NO documentation of the times she has abused her position and PTO time, or the times she has been approached by the onsite manager. What, if anything can be done to start the termination process without a lawsuit?

A. Your dilemma has both legal and ethical implications; however, the fact that the employee is a female minority individual should not impact decision-making. A minority employee does not have different performance or attendance requirements, or rights. The fact that she is a female minority employee is irrelevant. The performance management “clock” should start now since the employee’s manager has failed to document prior incidences. In other words, it is our opinion that this employee cannot be terminated at this point in time. Future incidences need to be documented carefully, followed by a clear discussion between the employee and her manager. She has the right to discuss the feedback and respond. If the problem continues and is not corrected over time, then HR should notify the employee that a performance plan has been initiated that could lead to the loss of her job. Instead of worrying about potential lawsuits, do what is right and what corresponds to best and fair practices for HR.

— HARRY SOBEL

Q. We have a few computer programmers who are on H-1B visas. They have all indicated that they will be returning to India within the next 12 months to visit family, for 21 - 60 days. We have a sister company in India. If they were asked to go to our sister company's office to work on U.S.-based projects while in India and they agree to do so, would the parent company be obligated to pay them at their U.S. rate of pay or at the prevailing rate of pay for computer programmers in India?

A. The Department of Labor (DOL) regulates the payment of wages to H-1B workers in connection with the Labor Condition Application (LCA) which your company filed to support the workers' H-1B visa petitions. The DOL regulations require that the H-1B employer pay the H-1B workers the wage that was promised in the LCA on a regular and uninterrupted basis, unless the employee voluntarily takes a leave of absence at his or her own request. If the employee is on a leave of absence, but chooses to work for your sister company in India during that time, and the work being performed benefits the U.S. company, the DOL would dispute that this was a true leave of absence and would likely require the payment of wages throughout that period, at the rate promised in the underlying LCA. The safest and most conservative course of action is to continue to pay the wages promised on the LCA.

— SUSAN COHEN

Q. What are the legal obstacles for having a drug and alcohol policy for testing all prospective hire and random testing of current employees? We are a home health care agency and want to make sure that our direct care personnel are free of drugs.

A. As you know, drug and alcohol abuse increases the risk of workplace injury, reduces productivity, leads to increased absenteeism, and creates numerous other costs and risks for employers. You are smart to be concerned about employees’ drug and alcohol abuse, especially where employees are providing health care to clients or patients in their homes. While drug testing can be a useful tool, employers must be careful to ensure compliance with laws such as the Massachusetts privacy statute, M.G.L. ch. 214, § 1B, to avoid invasion of privacy claims. Although Massachusetts does not regulate drug testing by statute, other states – including Connecticut, Maine, Vermont, and Rhode Island – have adopted statutory restrictions on the use of drug testing in the workplace. Before undertaking any drug testing program, you should review the specific state laws governing testing and conform your practices to the legal requirements.

Having a well-designed, thoughtful drug-testing program is key. Employer drug screening programs may take many forms, and occur at different stages of the employment relationship, such as pre-hire, post-accident, random, reasonable suspicion or return-to-work (post-rehabilitation) testing. Again, state law varies regarding when testing is permitted. In Massachusetts, for example, the courts typically balance the employees’ privacy interests against the employer’s business reasons for testing. Applying this balancing test, employers may require pre-hire drug tests for certain positions such as the home health care workers you mentioned. Massachusetts courts have also upheld post-accident testing; for example, you may consider testing any direct care personnel who are involved in a car accident traveling to or from a clients’ home. Random drug testing, on the other hand, is more complicated, and such testing may violate an employee’s right to privacy, unless the employee works in a safety-sensitive or dangerous job, or the employer can show a compelling business reason. You should discuss with your legal counsel whether random drug testing would be permissible for the direct care workers, since this will require an analysis of the specific facts and circumstances. You should also carefully consider what types of tests will be conducted (urinalysis vs. blood test, for example), which lab or testing facility will conduct the tests, where the samples will be drawn, and what the consequences of a positive test result will be. Confidentiality of test results and whether to offer rehabilitation services are also important considerations. A well-drafted drug testing policy should address all of these issues, as well as identify the positions subject to testing.

— KRISTA GREEN PRATT

Q. My company always closes early (2:00 pm) on the day before a holiday. It is such a standard/expected “perk” that most people rely on, and our Chief People Officer even sent an email at the beginning of the season to remind people. Our employees often ask the question, "If I was planning on taking PTO that day, would I charge 4 hours or 8 hours?" We always used to tell them they should only charge 4 hours of PTO time, since everyone is being let off early and enjoying a half day. Now, however, we have a few new HR people who think that this wrong and changing the policy. They are telling people they must charge all 8 hours. This just doesn't sound right to me that we are not consistently applying a perk to all employees. What is the correct way to handle this situation?

A. The answer to your question depends on whether your office is officially closed for business at 2 pm the day before a holiday, or whether the office is still open and only non-essential employees can leave early. In most cases, the “perk” you are describing, applies to most, but not all employees, and the office remains open for business, requiring critical workers (e.g., receptionists, those in operations, those working on time-sensitive projects) to remain at the office to contend with customers, vendors, and the like. In this case, where the office is still officially open, you are required to charge for 8 hours of PTO time. If, on the other hand, the office closes formally, as if it is a holiday, and all workers leave and no business is being conducted, then you would be correct in only charging for 4 hours of PTO time.

— JULIE WEBBER, Policy Specialist at the Sloan Work and Family Research Network (on behalf of HR Expert JUDI CASEY)

Q. I inherited a very small department, which includes two managers. They were given their titles by my predecessor, do not supervise anyone, are now overpaid, and could easily be replaced. What are the pitfalls of restructuring their positions and returning their roles to appropriate line staff?

A. This is a complicated dilemma you face, and somewhat difficult to answer without additional information. I’ll assume the following based on what is not said – this is not a companywide initiative driven by cost cutting, and the two individuals in question are at least “steady Eddies” (no less than average performers). I’ve never been a fan of downgrading titles unless there are internal equity issues, or something of significance driving the need. (e.g. overall Company restructuring). Remember, titles are free, and downgrading someone’s title will result in a level of disengagement, and most likely, resentment towards you. You don’t mention if you’re also thinking of restructuring their pay. If so, I would offer similar advice – if it is part of a Companywide initiative, (common during these times), employees are increasingly accepting of the need for Companies to stay competitive, especially if this is an initiative to avoid layoffs. However, if these two individuals feel they’re being “signaled out” by you, then you risk a level of disengagement leading to a loss of their “discretionary effort”. Often this loss will not equal the potential salary savings. Alternatively, an approach I’ve used very successfully is to “red tag” their total compensation (no salary increases, bonuses, etc.) until the market catches up to their salaries. Of course, Company financial conditions will dictate whether you can afford this approach.

Your “could easily be replaced” comment does concerns me somewhat. In these troubling economic times, many employees can easily be replaced by lower cost employees (those currently unemployed for starters). However, keep in mind – your employees are watching you, and will remember how they were treated during these times. When the economy improves (and it will), and employees have options again, they will remember how they were treated during these times.

Good luck!

— Robert Kelleher

Q. I want to give potential job candidates a computer skills test. Must I notify him/her ahead of time or can I just ask them to submit to a test after an interview?

A. You are not required to notify a candidate in advance of a computer test. The key to being compliant when administering job related tests, as you may know, is consistency. If you notify one candidate prior to the interview, then you should notify every candidate in the same manner.

— TRACY BURNS-MARTIN

Q. We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor but now she is pregnant and we are worried about this seeming to be because she is pregnant. Is it okay to demote this person?

A. Speaking with someone on numerous occasions is not managing performance. It is best to set up specific measurements for improved performance, along with timelines for these objectives to be met. I would suggest that you meet with this supervisor and review what is expected from someone in this position. Establish goals and a time to meet weekly, so that she has an opportunity to turn this situation around.

Given this current situation, I would recommend you speak with counsel before considering demoting this employee.

— ROBERTA MATUSON

Q. Recently we have had a number of folks from Canada and Europe requesting us to put them in volunteer positions. Somewhere I have heard that it is not permissible and that the person wishing to volunteer is in jeopardy of losing their right to work in the USA simply by performing volunteer services while on a work visa. I've been trying to research this on the internet but cannot find any helpful sites. Can you offer any advice and also any websites I can refer to for future reference?

A. Employers in Massachusetts, and especially for profit business entities, should be careful not to violate state and/or federal payment of wage, minimum wage, employment tax, workers compensation, benefits and other statutes. Independent of the exposure a foreign national may have for improperly "working" in the U.S. without a proper work visa, the employer may face significant exposure for nonpayment of wages and failure to meet related requirements by having volunteers performing work for them. Both Massachusetts and federal law are strict regarding volunteers. Only employers that have established training programs meeting detailed criteria may take advantage of having unpaid personnel legitimately receiving such training in their workforce. If the criteria are not met, the employer and certain responsible executives could be sued or prosecuted and possibly held liable for fines, back wages, liquidated damages, attorneys fees and perhaps other damages. The federal Fair Labor Standards Act, 20 USC Section 203(g) is the principal federal statute in the area, though not the only source of potential liability.

— SUSAN COHEN

Q: We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor but now she is pregnant and we are worried about this seeming to be because she is pregnant. Is it okay to demote this person?

A: I am assuming the employee has no contractual entitlement to a supervisory position. Under such circumstances, whether the demotion would be okay depends on your motivation for it and how well you can prove that motivation.

Q. I work as an office manager and part of my duties is to handle payroll/HR functions. My company does not offer any sick days to their employees and we all are told this at the time we are hired. Recently, an employee approached me about a problem with this policy. Upon return from a recent vacation, he discovered we took away vacation days when he had been out sick. We do not dock pay when employees are sick or late, but I am directed to use vacation time toward sick days. Can my company do this? I am just following direction from my boss but want to know if this is OK?

A. There are no state or federal laws mandating that employers grant sick leave to their employees. In fact, more than 59 million American workers do not have access to paid sick days, and nearly 86 million workers do not have paid sick days to care for sick children, according to the Institute for Women's Policy Research.

Maintaining effective training and development programs during tough economic times

Q. I'm worried that next year's training and development budget will be cut drastically. Any ideas for maintaining a commitment to learning with reduced resources?

A. During challenging economic times organizations need not only the skills of employees but also their discretionary effort more than ever. So it's a mistake to back off from training altogether. It's also a mistake to keep only the choices (like sales training for revenue producers) that have the most obvious impact on the bottom line.

Changing established rites of passage

Q: We are trying to improve our ability to retain new talent. It seems an old “rite of passage” is in place that company old timers put new recruits through and it is impacting our retaining efforts. Many of our new recruits do not appreciate this “rite of passage." Often, when a new employee comes to the organization, they go through a test by the old entrenched employees until they integrate and prove themselves. It can be difficult and sometimes employees leave from the discomfort. What is the best way to keep these new employees engaged? And, how can we break down this rite of passage that the old timers give new employees?

A: You need to determine if leadership at all levels supports and agrees with this “rite of passage." If there is not a consistent, aligned, and fully agreed position, it will not be addressed or resolved. It may be possible some leaders believe that part or all of this “rite of passage” is ok — they went through it themselves and it is reasonable for others to follow.