Undocumented workers in Kansas may qualify for workers’ compensation in some cases. In Arizona and Wyoming, courts ruled that an undocumented worker does not qualify for workers’ comp. According to these findings, an illegal immigrant cannot legally enter into an employment contract, and therefore is not an employee.

Other states, however, have laws that do entitle undocumented workers to workers’ comp. Texas, Utah, Florida and New York, for example, specifically grant the right to collect workers’ compensation benefits to undocumented workers injured on the job.

Georgia, Ohio, Oklahoma, Louisiana, and five other states have ruled in their courts that an employee cannot be denied worker’s comp based solely on the fact that he or she was unlawfully employed.

Employers in Kansas have experienced the shock of discovering that an employee whose I-9 documents seemed legitimate presented fake documents at hiring and is in fact illegal. These discoveries often occur when a worker is injured in the workplace and then files a claim for workers’ comp. During medical treatment or worker’s comp proceedings, the true identity of the employee is revealed along with the revelation that he or she is not authorized to work in the U.S.

To knowingly hire an employee who cannot legally work in this country, is a crime under the IRCA, the federal Immigration Reform and Control Act. Continuing to employ an undocumented worker is also a crime, so the employee is usually terminated.

The terminated employee may still be eligible for workers’ comp. In addition, under FLSA (Fair Labor Standards Act) court rulings, the employee could be entitled to back wages for overtime.

The concern regarding undocumented workers is not trivial. There are approximately 3 million undocumented immigrants in just Texas and California. Employers, therefore, should be vigilant when checking proof of ability to work in the United States, so that they avoid unknowingly violating IRCA by hiring an illegal immigrant.

Employees in Kansas are often confused about the legal rights regarding terminating pregnant employees.

The confusion is understandable since pregnancy is protected by federal law from discrimination. This law prohibits employers from terminating a pregnant employee simply because she is pregnant.

The Americans with Disabilities Act or ADA does not consider pregnancy a disability, nor does any other federal law. If a worker has a permanent disability under ADA, then employers are mandated to reasonable accommodations in the workplace for that employee.

Pregnancy is not a permanent condition, however, so Kansas employers are not required by law to makes reasonable accommodations. In fact, most pregnant women can do their jobs, even physically challenging jobs until the 7^th or 8^th month of their pregnancy. They can’t be fired just for being pregnant. Neither can they legally expect to perform at a lower level because of their pregnancy. There is no federal law that requires companies permit pregnant workers to do less work or stop doing parts of their jobs.

One exception, of course, is bathroom breaks. Pregnancy can cause women to need to urinate more often than normal. Taking frequent bathroom breaks cannot be used as a reason to terminate a pregnant employee. The Occupational Safety and Health Administration (OSHA) mandates that all employees be allowed to answer nature’s call when it calls.

The pregnant employee, however, cannot use these breaks as a reason to do less work or put in fewer hours than non-pregnant workers in the same job.

Termination for failure to meet company standards is a legitimate reason for firing a pregnant worker (or any worker) in Kansas. The best policy is to set reasonable expectations and disclose them to all employees. For example, Anne is a salesperson. Her company expects her to make 25 cold calls a week. If she doesn’t meet this standard, her employer is within its rights to start disciplinary procedures.

Ideally, the procedures would begin with a verbal warning followed by two or three written warnings. If the pregnant employee hasn’t improved by the end of this process, her employer can legally terminate her.

Employees in Kansas have asked whether Kansas has enacted a paternity leave law.

The answer is no. Kansas does not have a paternity law at the state level. Many expectant fathers, however, may be eligible for FMLA leave.

Under FMLA (Family and Medical Leave Act), eligible employees can take up to 12 weeks of unpaid, job-protected leave to care for a spouse, child or parent with a serious health condition, to care for a newborn, a newly adopted baby or newly fostered child. Pregnancy falls under FMLA as well, which means an expectant father can use FMLA leave to accompany his wife to prenatal appointments and procedures, or to care for her if complications arise with the pregnancy.

The 12 weeks of FMLA are job-protected, which means when the employee returns, he is entitled to either the same job or a job with similar pay, benefits and working conditions.

FMLA leave is unpaid, but regulations allow employees to use accrued sick time and vacation time, too. The request for these types of leave, however, must meet with the company’s paid leave policies.

Anyone wishing to take FMLA leave should inform his or her employer as soon as possible. Clearly, in an emergency advance notice wouldn’t be possible. With paternity, however, the employee should submit his request as soon as he can. Regulations under FMLA require employers to receive advance notice, but also ask them to be flexible. The exact day a woman will deliver isn’t always easy to predict. If an employee’s wife goes into labor unexpectedly, he should be allowed to leave immediately, whether it’s the beginning or end of the shift, or anywhere in between.

Understand that not all employees and employers are covered by FMLA. To be eligible, employees must have been with the company for 12 months and worked at least 1,250 hours. These hours must be actual “at work” hours; vacation time and other time away from the office do not count toward the 1,250. The company must employ at least 50 workers within 75 miles of the facility.

Many employees wonder: Is it legal in Kansas for me to work through my lunch break and leave work early? My supervisor say there’s no law requiring her to let me leave early. Is she right?

The answer is, yes, the boss is right – at least this time. There is no Kansas law that requires an employer to allow an employee to leave work early as a result of working through their meal break.

In fact, in Kansas and 30 other states (such as Arizona, Alaska Georgia and South Carolina), there are laws at all which regulate meal breaks. There isn’t a federal meal break law, either, so employers can establish meal breaks according to their needs and specifications.

Employees argue that since the law doesn’t require a meal break, they don’t have to take one. That is not quite correct. Taking meal breaks is part of each company’s established work policies, which employees are supposed to follow. Just like the employer who does not have to let someone early, employers in Kansas do not have to provide a meal break at all.

That does not mean employees can work fewer hours by skipping a meal break. The beginning and end of a workday is established by company policy. The employer expects employees to work those hours. Leaving early could constitute a breach of policy and could lead to discipline or termination for the employee.

Similarly, an employee who declines to take a meal break can also be disciplined or terminated for violating company policy.

Kansas employers have the right to require their employees to take a meal break of 30 minutes or more. The break can be paid or unpaid. The determination of pay usually depends on whether the worker is completely relieved of his duties during the break. Still, even if the employee is required to stay on the premises, the employer can declare the break to be unpaid.

An employee working at a Kansas company has a boss who constantly yells at the employees and calls them names. Does this constitute a hostile work environment?

It depends. The legal definition of hostile work environments includes two conditions that must be met.

• The employee is subjected to negative behavior based on his or her race, sex, color, religion, disability, pregnancy, national ancestry or age (40-70)
• The employer is aware of the behavior, or should have been aware of the behavior, but hasn’t done anything to stop it or prevent it from occurring in the future.

It’s possible the employer in the question is creating a hostile work behavior if he or she targets persons among the protected groups. It’s also possible that the boss is just a jerk. Being obnoxious doesn’t automatically mean the situation meets the legal definition.

Employees who feel they being subjected to negative behavior do have options. The first step is to consult the company’s Human Resources department.

Creating a hostile work environment is discrimination, which violates federal law. These laws are enforced by the EEOC (Equal Employee Opportunity Commission).

Consider the following scenarios:

Erik’s employer doesn’t like him. Erik considers his performance average, last month he made a purchasing error that cost the company $7,322. Erik’s boss nitpicks and finds fault with his performance so often that Erik is constantly afraid of being fired.

Hispanic employees at a hotel are constantly being referred to as “Dumb Mexicans” and “wetbacks” by another employee.

In both instances an employee or group of employees is being singled out, but only one of the above scenarios constitutes a hostile work environment.

In situation A, Erik is being singled out by his boss, but not because of his race, sex or religion, but because of poor work performance and frequent mistakes.

In situation B, Hispanic employees are being singled out because of their national ancestry. This is a hostile work environment. The EEOC recently won this suit involving an executive chef in a Lisle, Illinois hotel. The suit mandated the employer pay over $1 million per worker for allowing the situation to continue.

Kansas’s workforce has no guarantees that its members will receive benefits including paid sick leave, paid holidays, or paid vacation.

No Kansas or federal law requires employers to pay their workers for time off. It is entirely voluntary on a company’s part whether or not to institute policies guaranteeing paid sick time and the like.

Kansas has some restrictions, nevertheless. If an employer, for example, has instituted a written policy guaranteeing paid sick leave, paid vacation, or paid holidays, then he or she is bound by law to honor that policy.

In many states the department of labor will step in to require companies to honor their policies. In Florida, however, no such support system exists. Florida employees must assume the responsibility of taking an employer to small claims court to force compliance with a written policy.

Massachusetts, Illinois, and Louisiana, among other states, require terminated employees to receive pay for their unused vacation time. None of the states require employers to offer paid vacations to their employees. If a company does offer such a benefit, however, then unused vacation time must be paid to the terminated worker.

In addition, there are states where companies are bound to honor policies specifically stating that they will pay terminated employees for their unused vacation, provided the companies have established such policies. In a few states, it is presumed by law that an employer will pay a fired worker for unused vacation unless the company has created a written policy saying otherwise.

All paid time off policies must, according to federal law, be applied consistently. Employers must not apply them sporadically or with favoritism, or arbitrarily, or they may face lawsuits charging illegal discrimination.

Bills introduced in Congress requiring employers to provide paid sick leave have had a bad track record in the past. A new bill offered in 2009 attempts to do the same thing, but because such bills have never moved into law in the past, there is no guarantee that it will happen this time.

Under Kansas and federal minimum wage laws, employers must pay employees for every hour worked.

As the saying goes, “It’s all in a day’s work.” If it is, in fact, all in a day’s work, it is subject to federal labor laws, even if it involves paid travel time.

Federal law is quite clear on the matter. All paid travel must be counted as work time.

There is paid travel time and there is unpaid travel time, however. Short commutes to work from home, and to home from work, for example, is unpaid travel time.

An employer from Kansas posed the question this way: if we have employees who drive from our main office to the worksite, can we avoid overtime by coding the travel time separately in our payroll system?

By now it should be clear that the answer is “no.”

If the Kansas company is covered by federal minimum wage and overtime laws through the Fair Labor Standards Act, or FLSA, an employee must be paid overtime when working more than 40 hours a week. Paid travel time is included.

In the case of this employer, once the employee arrives at the warehouse, any more travel to work sites would be counted as part of the day’s work. That means the employee must be paid for travel time from the warehouse to a work site and back to the warehouse. That puts it under the provisions of the overtime law.

If service tech Maria, for example, worked 35 hours last week and is entitled to 10 hours of travel time, the total amount of time she is entitled to for that week is 45 hours. This is 5 hours over the 40-hour week, so the employer would have to pay 5 of her hours at “time-and-a-half,” or 1.5 times her usual hourly rate.

Under some conditions an employer may legally pay a worker a reduced travel rate. That employer must pay overtime at the employee’s average weekly rate, based on a combination of regular pay and travel time pay.

States are making changes in their mini-COBRA laws to allow workers to take advantage of a new subsidy that reduces their COBRA health insurance costs.

Since February of 2009, at least 18 states have ratified the change. The Kansas mini-COBRA covers employers with 2 to 19 employees, and provides coverage for a maximum of 9 months.

What the amendments do is allow more employees of smaller firms to utilize the subsidy.

Under the American Recovery and Reinvestment Act, otherwise known as ARRA, numerous workers qualify for the subsidy that may but their group health insurance premiums to a mere 35 percent of the usual rate. Although at least 18 states have created the amendments expanding the subsidy to more workers, some states have limited the program to 1 to 3 months, rather than the usual 9 to 18 months.

Mini-COBRA can be thought of as itself an extension of COBRA.

COBRA is the acronym for the federal Consolidated Omnibus Budget and Reconciliation Act. The basic COBRA applies to employers with 20 or more workers who are enrolled in a group health insurance plan.

The purpose of COBRA is to help people remain insured between jobs. It fulfills this purpose by allowing workers to keep their group health insurance for up to 1½ years after they leave a job, as a result of either resignation or termination. Not everyone who leaves a job qualifies for COBRA, however. Any workers fired for misconduct are not eligible, for example.

 Mini-COBRA applies the COBRA law to companies with fewer than 20 workers. At least 40 states, including Kansas, have passed the mini-COBRA laws.

There is a catch to the COBRA and mini-COBRA laws in many states, however. Each state’s law is unique. That being said, most of them require that the employee now pay 100 percent of the group health insurance premium. In other words, the worker must now pay the share that was formerly picked up by his or her ex-employer. In addition, many state laws allow employers to charge workers a 2 percent administrative fee.

COBRA and mini-COBRA help the families of the former employees. The plans generally cover dependents and other family members who would otherwise lose their health insurance.

Police stations and fire stations in Kansas are open 365 days a year, regardless of holidays. So are most convenience stores, gas stations, and restaurants. These are the kinds of operations that are open by necessity.

Other businesses are open year-around by choice. Some malls and other retail outlets, for example, may choose to stay open on Memorial Day, Thanksgiving Day, Labor Day, and Christmas.

Some employees are routinely scheduled for the holidays. In other cases it is less common.

In every case, however, Kansas employers are not required by law to give their workers paid holidays off. Neither are they required to pay premiums if they schedule a worker for a holiday. Many businesses may choose to give paid holidays or may offer premiums as incentives. But no law, state or federal, requires them to do so. In fact, no state law anywhere in the U.S. requires it.

Unlike many countries, the U.S. has no federally-required holidays. In the U.K., for example, the government declares Christmas Day a holiday and businesses must observe the holiday.

In the U.S., on the other hand, “federal holiday” does not mean the same thing. It simply means that some federal agencies, such as the post office, are closed on that day.

Kansas employers are entirely within their legal rights to require employees to work any day of the year, on any one of the 365 days of the year including holidays. The employers need not close the business or observe a holiday on any day.

Even employers who are open on a holiday by choice rather than necessity may schedule their employees for work on that day. An employee who does not show up is subject to disciplinary action or even firing.

No state or federal law requires employers to pay a higher wage on the holiday. If the employer decides to close on a holiday like Memorial Day, Labor Day, or Thanksgiving, he or she need not pay employees for that n on-working holiday. According to the law, employees must be paid for every hour they work. No law requires holiday pay.

There are at least three options open to Kansas employees who need to receive short term disability benefits.

One of the most significant is the Family and Medical Leave Act, or FMLA. Thanks to this federal law, employees who qualify are entitled to as much as 12 weeks of job-protected leave annually. “Job-protected” refers to the fact that the employer is prohibited from permanently replacing that worker when he or she is on FMLA leave. The employee is guaranteed his or her job back.

Companies usually require a worker to present a doctor’s note saying that he or she has a condition that requires a leave of absence. Employers do this routinely, in order to guarantee that the claim for FMLA is a legitimate one.

It should be noted, however, that FMLA is an unpaid leave of absence.

Under workers’ compensation employees are entitled to disability payments and to coverage of their medical expenses. Workers’ compensation applies when an employee is injured on the job.

Another option, at least for pregnant employees, is the Pregnancy Disability Act. To offer one example, assume employee “Julie”  is pregnant and her employer provides paid leaves of absence to workers with other forms of disability. Her employer, then, must do the same for women in the company who are pregnant and experiencing a medical condition.

It may seem unfair to many workers, but Kansas has no law requiring employers to pay benefits for short term leaves of absence. Kansas is no exception to the rule, however. Only five states in the U.S. have passed laws mandating that an employer provide short-term disability for their workers. They are California, New Jersey, New York, Rhode Island, and Hawaii. In Rhode Island, which guarantees up to 30 weeks of short term disability benefits annually, workers fund the plan through payroll deductions. In the other states, there is no such legal provision.

Workers are strongly advised to visit their human resources offices to educate themselves thoroughly on the benefits available to them for short term disabilities. Detailed information can be obtained.

Employers should take steps to protect their employees, and their business, against a major Swine Flu outbreak this winter. This includes encouraging employees to stay at home when they are ill.

While there is no need for panic, Swine Flu poses a deadly threat to seniors, small children and those with compromised immune systems.

The last influenza pandemic was in 1918, when the so-called “Spanish Flu” struck half the world’s population, killing 50 million people. That is a figure comparable to one third of the population of Europe, and more people than were killed in all of World War I.

The CDC or Center for Disease Control in April 2009 issued an alert on Swine Flu, in particular the 2009 H1N1 influenza virus. This particular virus is also called Swine Influenza A.

Janet Napolitano, the Secretary of the Department of Homeland Security, has declared a public health emergency nationwide.

This does not mean an immediate emergency exists, but indicates a proactive position is wise.

OSHA has for many years been recommending that all employers have plans in place for a serious influenza epidemic, just as they would for a severe storm or a power failure.

There is information available now to employers – the complete OSHA guidance on Swine Flu Preparedness. The guidelines are free. All Kansas employers should read the OSHA guide known as Preparing Workplaces for an Influenza Pandemic and build appropriate plans for their workplaces.

During a pandemic or the threat of one, employers might have plans that will help reduce contact between employees. For example, employees could work from home and schedule conference calls or remote meetings using laptop cameras. To minimize customer-employee contact, retail stores might use delivery or drive-through windows exclusively. It is possible that there might not be an effective flu vaccine for four to six months during a pandemic.

The 1918 flu pandemic killed young and healthy people rather than the usual target groups, namely the elderly, small children, and those suffering from serious illnesses. About 50 million people died.

Many Kansas employees wonder if  it is legal for an employer to impose a minimum height or weight as a job requirement.

In most cases, the answer is no.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on their race, color, religion, country of national origin and gender in aspects of employment. Any policy that limits employment for a protected group is probably illegal.

There are cases, however, where employer-set height or weight minimums could be condoned by the courts. For example, if a worker has to be 6 feet or more to reach and operate the controls of a bulldozer, the court would probably side with the employer on the height minimum.

In order to establish a weight or height requirement, the Kansas employer must prove that the minimums or limits must meet a legitimate business need. The U. S. Department of Labor specifically required the company to establish that the requirement is necessary in order to conduct business, and that no other alternatives are available.

Consider a Kansas company that has a minimum height requirement as an indication of physical requirement for security officers. This policy may automatically eliminate persons of certain races, genders or ethnic groups. A better requirement would be to a test of strength or stamina. For example, firefighters, paramedics and police officers are tested on a regular basis for stamina, strength and other job-related physical abilities.

Another type of discrimination relates to other protected groups: sexual harassment and creation of a hostile work environment. Sexual harassment exists when a person suffers unwelcome sexual advances or unwanted physical or verbal contact. A hostile work environment involves continued abusive or hostile behavior towards an employee due to their race, gender, etc. The term first coined in relation to sexual harassment, but applies to other protected groups.

An example of a hostile work environment is a recent case involving African American employees. The court ruled that the racist materials located in the employee break room and the racial epithets on the wall constituted a hostile work environment and was therefore illegal.

According to federal law, employers are required to make “reasonable accommodations” for a worker’s religious beliefs. These accommodations could include amending the employee’s working conditions, schedules, hours, uniform or dress code. This law applies only to workers with “sincerely held” beliefs. It cannot be used for a worker to get extra “holidays” by first claiming to be one religion, then another, simply for more time off.

Title VII of the Civil Rights Act of 1964 if the relevant law and prohibits discrimination against employees because of their religion, sex, color, country of origin or race. Several aspects of employment are covered under Title VII, including termination, discipline, benefits, wages, training and promotions.

The “reasonable accommodations” can include making an exception to the dress code, modifying the company uniform, amending the worker’s schedule or hours, and changing the Kansas employee’s working conditions. For example, two Islamic men in Pennsylvania sued their employer, a local government, for religious discrimination when the refused to shave their beards. The county argued that the dress code mandated that all male workers be clean-shaven. The court ruled that except for situations where the beards could pose a safety hazard, making an exception to the dress code constituted a reasonable accommodation.

Another case involved an Islamic woman who worked for Alamo rental car in Phoenix. After 9/11, she was fired for refusing to remove her headscarf. She filed a religious discrimination suit, stating that she had previously been allowed to wear the scarf, which had been approved by her supervisor. The court ruled in her favor, stating that allowing an approved scarf was a reasonable accommodation, and awarded her $250,000.

Not only does the Kansas worker have to provide evidence of “sincerely held” religious beliefs, the accommodations cannot create undue hardship for the employer. For example, an Islamic woman may request long loose-fitting pants for her uniform instead of the required skirt. That would be reasonable, even if the pants created an extra expense. If the employee demanded an entire new designer wardrobe, however, that would be considered undue hardship for the employer.

One federal regulation that all employers in Kansas and elsewhere in the U.S. should be aware of is the rule governing which of their employees are entitled to overtime pay and which ones are not.

Employers should understand that it is not enough merely to declare someone a “manager” or “administrator” and pay that person a salary rather than a wage. Positions must meet certain guidelines before they are “exempt” from overtime protection.

Trumping other considerations is the amount of salary. Any employee making less than $455 a week is “non-exempt,” or entitled to overtime pay, regardless of his or her duties or responsibilities.

If an employee earns more than $455 weekly, then job descriptions, duties and responsibilities come into play.

“Executives” and “administrators” are among the “salaried-exempt,” meaning they are not under the protection of the overtime laws. They need not be paid overtime. To qualify as a manager, however, the employee must be in charge of at least two other employees. The manager must also be making significant decisions. The purchasing agent who decides which vendors to contract with is an exempt employee. The worker who makes telephone calls to those vendors placing orders is a non-exempt employee who is consequently protected by overtime laws.

Others falling into the category of the “salaried-exempt” employee are highly-paid professionals with advanced degrees; computer professionals; and outside salespeople. Examples of computer professionals who are exempt are programmers, system analysts, and software engineers.

Artists and sculptors are exempt, as are pharmacists and emergency-room doctors.

Anyone earning more than $100,000 yearly is automatically exempt from overtime.

The applicable federal law is the FLSA, or Fair Labor Standards Act. It mandates that anyone working more than 40 hours a week is entitled to “time-and-a-half,” or 1.5 times their usual pay, provided they fall in the “non-exempt” category. The FLSA is also the law which has established these two classes of salaried employees.

Employers should also be aware that many states have passed their own overtime laws. In those states, it is possible that still more types of salaried employees may be legally entitled to overtime compensation.

The majority of the states in the U.S. are covered under the federal Family and Medical Leave Act of 1993 (FMLA). Kansas is one of those states, but some workers are concerned about being fired or laid off while on maternity leave.

It is possible for an employee to be terminated while on leave, but only under certain circumstances.

FMLA provides up to 12 weeks of unpaid, job-protected leave. That means that when the worker comes back to the job, he or she must return to the same position or to a position with comparable compensation, working conditions and benefits.

For example, Fiona is one of 20 administrative assistants for the Taste Good Bakery Company. She takes FMLA for 6 weeks after the birth of her child. While she’s away, her boss, Mark, hires Eva to take Fiona’s place. Mark prefers Eva’s work and wants to terminate Fiona. This is not legal. Mark must provide Fiona her original job, or another administrative assistant job that has the same wages, etc. as the one she left.

Conversely, if the Taste Good Bakery Company enacts a layoff of 50% of its employees, including 5 administrative assistants while Fiona is on leave, she could be terminated. The point to remember is that employees on leave are not exempt from general layoffs that apply to all departments of a company.

Pregnant women are protected under the Pregnancy Discrimination Act (PDA). This federal law prohibits employers from using a woman’s pregnancy against her in employment practices. If, however, the company suffers a general layoff, and treats all the non-pregnant employees in the same manner, a pregnant woman could be terminated.

The FMLA applies to all states.  However, eleven states, including Maine, Minnesota, Wisconsin and others, have established family leave laws of their own. In these states, the rules for termination while on leave may vary widely. 

Employees in Kansas and elsewhere nationwide now have to report in advance if the employee is taking intermittent leave under the FMLA.

Under new regulations, workers must follow their companies’ call-in regulations when they take unscheduled, intermittent leave time off.

Unscheduled, intermittent leave is one of the most contentious aspects of the FMLA, with employers surveyed by the U.S. Labor Department reporting that the Family and Medical Leave Act of 1993 was never intended for that purpose.

The act allows employees to take up to 12 weeks worth of job-protected (although unpaid) leave annually. To qualify, an employee must be tending to a serious personal illness or dealing with pregnancy or childbirth, among other things.

The law, however, does not stipulate a minimum amount of leave that may be taken at a time. It could be all 12 weeks at once, or an hour at a time until 480 hours (the equivalent of 12 weeks) is accumulated.

Many conditions require intermittent leave. As a hypothetical example, employee “Tim” must undergo chemotherapy for his cancer. When he does so, he is only able to work six hours in a day. He is entitled to do so until he has accumulated the 12 weeks worth of leave under the FMLA.

Under the revised regulations, employee “Pablo” now has to report in advance according to company policy when the migraine headaches he suffers require him to take time off. In the past, he could take his time off without notifying his employer.

“Maria” has severe morning sickness, experiencing pregnancy-related vomiting and nausea to the point where it requires her to take time off. She may do so, sporadically, as long as she follows company call-in procedures. Marsha, however, must understand that whatever FMLA time she takes before her childbirth is time she will not be able to take afterward.

Employees such as Maria may be required to present a physician’s statement certifying her condition. Provided she does, she may then continue to take her leave time without a new statement.     

Can a worker on short term disability be terminated for being away from work too much? If a Kansas worker takes 11 weeks of short term disability, can he or she go on disability again in the same year?

The above questions refer to two separate issues. Termination depends on the type of leave taken. The rights of short term disability depend on the plan which covers the employee.

If the worker is on FMLA leave, then he or she can not be terminated. FMLA (Family Medical and Leave Act) leave provides up to 12 weeks of unpaid, job-protected leave. If the Kansas worker is on FMLA leave, he or she must be allowed to return to the either the same job, or a job with comparable pay, environment and benefits.

To count short term disability toward FMLA leave, however, the employer must inform the worker in advance. After an employee returns to the job, the company can not decide to retroactively charge the worker’s leave to FMLA.

If the Kansas worker wasn’t on FMLA leave, then there is no guarantee for the worker’s job. If the employee takes too much time off from work, the company could very well terminate that worker. If the worker wasn’t on FMLA leave, he or she is still eligible to take that leave at a later date.

Short-term disability time depends on the plan itself. Considered private insurance (even when purchased via work), short term disability provides payments for workers when they can no longer do their job. The plans vary, so the answer to the Kansas worker’s situation would depend on the coverage he or she purchased.

Many programs allow employees to take 13 to 26 weeks of short term disability. The Kansas employee would then have 2 to 25 weeks left. Some plans provide 52 weeks, so the Kansas employee would have 41 weeks left.

Five states in the U.S. (California, New York, Hawaii, New Jersey and Rhode Island) have enacted state laws requiring mandatory short-term disability. In these states, employee short-term disability benefits may be different.

The Fair Labor Standards Act of 1938 (FLSA) serves several functions. This law establishes minimum wage, rules for overtime pay, and defines paid travel time.

For employees in Kansas, travel time has raised some questions. Is the time traveled between job sites considered paid time? Is the travel time traveled from home to the first job site of the day considered paid time?

FLSA says yes and no, with conditions. Any employee who travels between job sites as part of the regular workday must be paid for that time. An employee that travels from home to the first job site every day is only eligible for pay if that first job site is outside the company’s “normal commuting area.”

What is a “normal commuting area”? The answer is it depends on the employer and location. There is no standard definition under FLSA, or under the U. S. Department of Labor’s Wage and Hour Division. Understand that in a spread out city like Chicago an hour commute would probably be considered within the employer’s normal commuting area. A company in a smaller town like Manitowoc, Wisconsin, however, might consider the 20 minute drive to nearby Sheboygan as outside its normal commuting area.

The assumption behind the normal commuting area is that employees have to spend some amount of time to get to work already. Paid travel time would apply only for additional driving, say on a special assignment to another city, or to a job site outside the normal commuting area for that company.

As a result of this assumption, employers are perfectly within their rights to consider only the additional time as paid travel time. For instance, Bob Yarborough normally drives 35 minutes to work each day. On a special assignment in another town, he must drive 65 minutes to work. His employer can deduct his usual 35 minute commute from the 65 minute commute and pay only for the 30 minutes additional.

These rules apply only to travel during the workday. Overnight trips are handled under different rules.

The issue of whether a Kansas salaried employee is entitled to overtime pay depends on a number of factors.  A salaried employee can be classified as salaried exempt which means her or she is salaried but not entitled to overtime pay, or salaried non-exempt which means the employer must pay for hours worked over 40 hours.

The federal law that provides overtime guidelines is the Fair Labor Standards Act or FSLA.  The law states, in part, that a worker must be paid time-and-a-half if they work more than 40 hours in the same week.

There are guidelines as to what makes a salaried worker exempt or non-exempt.  Suppose Dave is the assistant manager of a small ice cream shop and makes less than $455 in a week and works overtime, regardless of what his responsibilities may be, would be entitled to overtime pay. Dave’s boss likes the work that he’s doing and promotes him to store manager with a raise so that he now makes $500 a week. But Dave now must work 50 hours each week. Dave would no longer be entitled to overtime pay. 

Simply designating someone as manager does not allow an employer to exempt the worker from overtime pay.  If Dave only oversees one co-worker, then even though his boss considers him to be a manager, he would still be legally entitled to overtime.  If Dave oversees a crew of 5 people and is allowed to make major decisions that affect the business such as changing vendors or product pricing, then he would be considered salary-exempt from overtime.

There are job classifications that automatically disqualify a worker from overtime such as highly compensated employees, outside salespersons, most people earning more than $100,000 in a year, computer professionals such as system analysts, computer programmers and software engineers.  Other positions that are exempt are executives and professionals with advanced degrees such as medical doctors.

When Kansas employers make decisions on leave requests under the federal FMLA, they should remember what the law is intended to do. The Family and Maternity Leave Act was enacted to allow unpaid family leave and to ensure that when the employee returns he or she is entitled to the same job, or a position very similar to the one which he or she left.

The FMLA was not intended to dictate what happens while the employee is absent.

An employee should not be alarmed if a new worker is hired to fill the vacant job position. An employer may choose to do just that, or the employer may choose some other way of handling the vacancy. Some employers will find it in their best interest to “hold the position open” and wait for the absent employee to return, but the FMLA does not mandate this.

An employer may elect to fill a highly skilled or management position, by promoting another employee from within the existing work force. The employer would need to make sure that all parties understand that the promotion temporary, and that the employee on FMLA will be returning to his or her job. The point is that the employer is free to meet the business’s needs in the best way possible. The FMLA does not seek to have any input into that decision making process.

Another employer may believe that his or her best option is to hire an additional employee who would remain after the employee on FMLA leave returns. This option might be attractive to a business that experiences a high rate of employee turnover. Businesses with multiple employees in similar job positions, might choose to allow other employees to take on some of the absent employee’s responsibilities. Other options are available to employers. That is the point. The option of how to operate while a worker is on FMLA leave is left to the employer to decide.

The Disaster Unemployment Assistance program is a federal program that is in place for employees across the country that are out of work as the direct result of a disaster. Because the program is a federal program, it may apply to employees in all states, including employees in the state of Kansas.

Many types of disasters will qualify for coverage under the program, including natural disasters such as tornadoes and other storms. However, in order for the DUA program to provide coverage to employees that have lost work, the disaster needs to be declared a federal disaster by the President of the United States. Only then will federal funding be made available for employees that have suffered losses in work.

Employees may be able to receive up to 29 months of coverage after a period of disaster. However, in order to receive this coverage, the employee needs to meet some of the following requirements:

·         The employee cannot be receiving or be eligible to receive unemployment insurance assistance from any states across the country, including the state of Colorado

·         The employee needs to have been employed at the time of the disaster with the expectation that the employment would have continued if it had not been for the disaster

·         If the employee was not actually employed, but had a contract for work to begin, the employee could also receive compensation

·         The employee should be out of work as the direct result of the disaster. For example, the employee needs to have been injured an unable to work because of the disaster. Also, if the employer lost his or her place of work in the disaster and the employee has no place to go to work, the employee could receive compensation.

·         Employees that have become the heads of the household as a direct result of the death of the former head of the household in the disaster may also receive compensation. CB

Questions about dress code regulations have recently arisen in the state of Kansas. For instance, is it all right for an Islamic woman to wear certain clothing that protects her modesty while at work? There have, in fact, been several court cases that have supported an Islamic woman’s right to do just that. These rulings are based on laws that have been designed to protect individuals from religious discrimination.

In 1964, a federal law known as Title VII of the Civil Rights Act was passed. It specifically prohibits employers from discriminating against workers because of their religious beliefs. This means that workers cannot be discriminated against in relation to any conditions or terms of employment.

In addition, employers must also strive to create reasonable accommodations for a worker’s religious practices or beliefs. The worker’s beliefs must be sincere, however, in order for this ruling to be applicable. Aside from this, if by making reasonable accommodations it were to create an undue hardship for an employer, the courts would probably not force the employer to make any exceptions.

According to the court cases that have set down rulings about this topic, making exceptions to dress codes usually qualifies as a reasonable accommodation by law. If, however, reasonable accommodations cost the employer more than what is considered a “reasonable” expense, then the law would likely apply different standards. Generally, larger employers are able to bear greater expenses than smaller ones.

Court decisions do not always side with employers. Some dress code restrictions have been upheld when either public or worker safety is at risk. For example, if an employee worked somewhere that had open sparks, then having a beard would likely present a fire hazard. Courts, in such a situation, would more than likely side with the employer, and require the employees to be clean-shaven.

In many cases, simply working out a compromise about the dress code is sufficient to satisfy both employee and employer. Alternate uniforms that satisfy both parties are frequently agreed upon.

The Rehabilitation Act is a federal Act that applies to many employees in the state of Kansas, just as it applies to many employees in other states as well. The Act specifically prohibits covered employers from discriminating against their employees for reasons that are directly related to an employee’s disability.

When an employer is covered by the Act, the employer cannot take a disability into account when making any employment-related decisions about an employee, such as a decision about hiring, staffing, promoting, termination, training, or otherwise. Also, some employers will need to make reasonable accommodations for employees that have disabilities. For example, if an employee is in a wheelchair and requires a modified work station in order to reach his or her desk, the employer may have to provide a modified work station.

Again, not all employers are covered by the Act. In fact, in order for an employer to be covered, the employer needs to meet at least one of the following employment-related criteria:

·         The employer needs to be a federal government agency, contractor or office working in any branch of the federal government

·         The employer could also be a local or state government office, contractor, or agency working in any branch of the government as long as the employer receives federal funding

·         Educational institutions may be covered if they receive federal funding

·         Public and private employers may also be covered if they receive federal funding

Also, some employers will need to take affirmative action to hire employees with disabilities. For example, if an employer has a federal contract worth at least $10,000, the employer needs to take affirmative action to hire workers with disabilities. If an employer has a federal contract worth at least $50,000 and at least 50 employees, the employer needs to have a written affirmative action plan in place to hire workers with disabilities.

Many types of disabilities qualify for coverage under the Act, including mental and physical disabilities. A mental disability might even be depression or an addiction. A physical disability could be a missing limb or a visual impairment. CB

FMLA, or the Family and Medical Leave Act, has become a highly debated topic in Kansas. Essentially, FMLA regulations allow qualified employees who have any type of serious medical condition to take unpaid time off of work. The time off is also job-protected. Employees may take time in whole day increments, or they may take off for just an hour or two per day. None of this time has to be scheduled in advance, which is one of the primary factors that have many employers irritated.

The other factor that has employers up in arms is the fact that employees are allowed to take intermittent time off. For instance, if Susie is suffering from pregnancy-related illness, such as persistent nausea or vomiting, and she simply cannot stay at work all day, then she would be allowed to take just a few hours off each day. Even though the employer that she works for would have every right to ask for a doctor’s certification regarding her condition, the employer would not have any right to try to limit how Susie uses her FMLA.

The United States Department of Labor recently released a 182-page report that stated quite clearly how employers feel about FMLA leave that is unscheduled and intermittent.

Some individuals have gone so far as to state that they do not believe that FMLA was intended to be used in such a fashion. Employers and employees alike should be aware that, at some point in the future, new or revised legislation might change some aspects of FMLA.

There are some requirements that must be met before employees are allowed to take leave under the Family and Medical Leave Act. For starters, employees have to work at locations having 50 employees (or more), and they must be within a 75-mile radius. The exception to this rule is for those individuals who work for public agencies. All of those employees, regardless of how many employees work at any single location, are eligible for FMLA. The same FMLA benefits are available to all workers at both private and public secondary and elementary schools.

The federal Family and Medical Leave Act states that employees are entitled to up to 12 weeks of unpaid leave each year. This unpaid leave may be used when an employee is recovering from childbirth, or if he or she is seriously ill. The leave may also be used for employee’s to care for newly adopted children, a newborn child, a new foster child, or to take care of an immediate family member who is seriously ill.

Paid leave in Kansas, in some cases, can be deducted from an employee’s 12 weeks of unpaid leave under FMLA. This is according to the United States Department of Labor. Whether this applies to any person’s particular state depends upon that state’s laws and regulations, as well as company policy.

FMLA regulations stipulate that employees are entitled to return to the same job, or one that has similar working conditions, pay, and benefits.

The United States Department of Labor says that employers are allowed to establish policy indicating that employees have to use any type of paid leave, such as vacation time, personal days, sick time, or short-term disability prior to being able to utilize unpaid FMLA.

In order for paid time off to be counted against an employee’s 12 weeks of FMLA leave, the employer has to make the policy clear to employees at the beginning of the leave. It is recommended that this be done in writing.

In other instances, some companies allow their employees to use their short-term disability or vacation time, and then still take an additional 12 weeks of unpaid leave. This policy is perfectly legal, but it must be consistent for all workers.

It should be mentioned that no federal law protects an employee’s job if they are off work for more than 12 weeks. If an employee has exhausted his or her leave under FMLA, and he or she does not return to work, then it is possible that it might result in job loss.

The Americans with Disabilities Act is a federal Act that applies to many employees in states across the country, including employees that are employed in Kansas. However, the Act does not apply to all employees. When an employee is covered by the ADA, the employer is prohibited from discriminating against the employee for reasons that are directly related to a disability that the employee could have.

According to the ADA, when an employee has a record of having a particular disability, the employer cannot discriminate against the employee for reasons that are related to that disability during an employment related period, including the following:

·         Hiring

·         Training

·         Compensation

·         Promotion

·         Termination

The Act only applies to current employees of a covered employer and to job applicants to a covered employer. The Act does not apply to clients or customers of covered employers. Also, the Act only prohibits employers from discriminating against employees for reasons that are directly related to the disability and not for any other reason, such as race or gender.

Employers are covered by that Act as long as they have at least 15 employees working for them for any given calendar year.

Employees could be covered by the Act if they have a record of having a mental or physical disability. An example of a mental disability could be depression. A physical disability might be a visual impairment.

Employers are also required to make reasonable accommodations for employees that have disabilities. For example, the employer may have to provide a modified computer monitor for an employee that has a visual impairment. If an employee has an addiction and needs to take time away from work in order to treat the addiction, the employer may have to work with the employee to work out a treatment schedule.

Employers can legally discriminate against employees that have disabilities if the disability makes it impossible for the employee to perform the functions of the job. CB

Consider the humble sidewalk curb-cut for the person who uses a wheelchair. Or the simple wheelchair ramp seen at almost every public building or private business these days.

Less than 20 years ago, most of them would not have existed. Buildings, private or public, could be raised without any way for disabled workers to enter them. People in wheelchairs could not even navigate most sidewalks. It was only thanks to the American with Disabilities Act (ADA), passed in 1990 after strong activism by disabled people, that the workplace has become accessible.

The ADA addresses matters like these in the workplace under the heading of “reasonable accommodation.” The idea refers not only to making sites physically accessible. It also designates other kinds of changes an employer must make to insure that a disabled worker can exercise her or his skills to the fullest extent possible.

The phrase “reasonable accommodation” can be somewhat ambiguous, and can really only be clarified through theoretical examples.

Here are a few examples.

Consider a small business that puts in a wheelchair ramp to provide access for disabled workers at a cost of less than $400. Surely that would constitute a “reasonable accommodation.” Now let’s assume that the same small business rents an office on the third floor of an ancient building without an elevator. Because the neighborhood is crowded, there’s no way, first, to put in a wheelchair ramp.

Second, it would cost the employer more than $20,000 to install an elevator in a building that she doesn’t even own. That would not qualify as a “reasonable” accommodation. The business could look forward to a time when the owner of the building decides to renovate. The owner would be legally required at that time to make the building accessible.

Assume an outside salesperson had epilepsy and cannot drive. His company usually reimburses salespeople for driving to client appointments. Reimbursing this salesperson for bus or taxi fares would be reasonable, even if it exceeded the average driver-reimbursement costs. A limousine and on-call chauffer would not be reasonable, however.

The Family and medical Leave Act is a federal Act that is in place for employers and employees in states across the country. The Act helps to ensure that if an employee needs to take time away from work for a qualifying medical condition, the employee can take up to 12 weeks off of work.

Not all employees will be covered by the Act. In fact, in order for an employee to be covered by the Act, the employee not only needs to request the time off for covered reasons, but the employee also needs to have worked for the covered employer for at least 1,250 hours out of the previous year. A covered employer is one that has at least 50 employees that work within a 75-mile radius of the employee that wishes to take the FMLA time off.

When an employee takes time off under the FMLA, the employee can take up to 12 weeks off. The employee should be able to return to work at the end of the period of time off to have the same job or an equivalent job as well as the same salary and benefits as the employee had prior to taking the FMLA time off. Also, employers cannot discriminate against employees that have taken FMLA time off for reasons that are related to the time off.

Covered employees may be able to take time off for the following reasons:

·         To care for their own medical needs

·         To care for the medical needs of a spouse

·         To care for the needs of a child, as long as the child is under the age of 18

·         To care for the needs of a parent, as long as the parent is a biological parent and not an in-law

·         To care for a newborn child, a newly adopted child or a child recently taken in through foster care. Both male and female employees can take time off for these reasons. CB

Kansas law doesn’t force employers to pay workers for holidays, nor does Kansas law force employers to pay overtime rates to employees who work on holidays. Federal law also does not require either of these things.

While many employers are generous enough to grant paid holidays to employees, there is no law that says they must do it. Companies usually grant about 7 paid holidays and close business on those days. Workers receive a day off with the benefit of being paid for that day, without requesting vacation hours. Paid holidays are normally paid at the worker’s regular hourly wage. Each company that offers this benefit includes the details on which holidays are paid in the employee guidebook.

Another benefit that some companies offer is a holiday premium. This is also optional, as no state or federal law makes it mandatory. A holiday premium is basically an overtime rate given to employees for working on a holiday. They might work less than 40 hours that week, but they are given overtime pay for hours put in on the holiday itself. Some companies do this, even though they don’t have to.

In the case of union contracts, the situation is a little different. Company policy may be required to include holiday pay and holiday premiums under certain union contracts. In those cases, these benefits are required. If there is no such union contract involved in guiding company policy on the issue, these benefits are not required.

Benefits like these are very important to many employees. Many workers look forward to the extra holiday bonuses throughout the year, every year. Many enjoy the holidays off, while some take the opportunity to work to earn a higher wage. Workers appreciate the extra compensation, and it is a great thing to offer employees to encourage them to continue to work for your company.

Kansas laws don’t cover the issue of sick pay directly. Federal law dos not address the issue of sick pay specifically either. Some states require that accumulated vacation time be paid when a worker is terminated, but none of them require sick pay to be issued as well. California has the tightest labor laws in the country, but even this state does not require that sick time be paid to workers that have been terminated.

Sick pay is a benefit that is voluntarily offered to workers in many cases. Union contracts often require that sick days be offered. In cases where there is no such union contract that requires it, sick days are offered by the choice of the employer.

In the same way that employers can choose to offer sick days, employers can choose not to offer sick days. There is no law that says employers have to pay workers for sick days. Sick time is a nice benefit to have, and it is not offered to everyone. The intent of sick pay is to offer compensation to workers for days that they have to miss because of illness.

Some companies do not distinguish sick days from vacation days, and simply call it paid time off, or PTO. Sometimes employees need a day off because of burn out or other reasons, and having a general number of hours or days available through PTO, they can take days off without pretending to be ill.

If an employer offers sick time for several years, and then decides that too many workers are taking advantage of available sick days, they may stop offering it. Unless there is a union contract that states otherwise, companies are within their legal rights to stop offering paid sick days. They should give a warning to the employees, but the notice does not have to be months in advance.