BY: Jonathan K. Driggs, Attorney at Law
I frequently get calls from people that start something like this: “Someone told me that there’s a law out there that requires such-and-such.” Sometimes this Someone is right, but maybe more often this Someone is wrong—or perhaps this Someone is somewhere in the middle. Regardless, I’m left to wonder, “just who is this mysterious Someone?” (I keep expecting to stumble across a law firm called Someone, Someone and Someone, but that hasn’t happened yet!)
This leads me to our topic for the month. There are certain employment law questions that seem to circulate frequently among employees and employers—often accompanied by the wrong answer. We’ll deal once and for all with some of these questions as follows:
- Is an employee required by law to give two weeks notice prior to resigning? In a typical at-will employment situation the answer is clearly no. Giving two weeks notice is a professional courtesy (and one that is appreciated!), but not a law. Remember, if an employee gives two weeks notice and the employer either doesn’t allow the employee to work until his or her stated end date or pay the employee out through his or her end date—the employee becomes eligible for unemployment benefits. In the state of Utah, it is generally permissible to attach consequences to failing to give two weeks notice (e.g., the employee forfeits cash out of accrued paid leave upon termination)—but it is important to be consistent in enforcing such policies.
- Does the law require a 90-day “probationary period” for new employees? No, but it is interesting how entrenched this concept is in our workplace cultures. The law doesn’t recognize anything magical about 90 days of employment. While many employers have a 90 day probationary period, such policies should be carefully written to avoid damaging at-will status after 90 days of employment (e.g., many policies indicate that an employee can be terminated at any time, and for any reason, during the first 90 days of employment—which is another way of saying “at-will employment”—which then begs the question of what standard applies after 90 days… is it at-will or something else?) While 90 day probationary periods can be ok if the policy is written appropriately, I prefer to simply conduct a performance evaluation at the 90 day mark and get all of the benefit but none of the risk. And yes, if all signs indicate that the new employee is clearly “not working out,” I’m a big believer in taking a hard look at the situation and considering cutting losses earlier rather than later (this reminds me of a guy who was eating a piece of cake that didn’t taste very good—for some reason he kept eating the cake in the hope that somehow it would start tasting better… wrong!)
- Must I allow an employee to review their employee file or make copies of the documents from their file? In the state of Utah, the personnel file belongs to the employer, not the employee, so there is generally no right to review or copy the file absent a subpoena (and if that’s the case, you’ve got other problems). Now, let’s get real for a second: it makes a lot of sense for employers to give employees reasonable access to personnel files—good employment relationships are all about open communication—so I am a believer in having policies that allow for reasonable access for current employees with appropriate controls and limitations in place. Two things to keep in mind: I generally do not allow former employees to review their files, and if you are dealing with employees located outside the state of Utah, be sure to check applicable state law because this is an issue that can vary widely from state to state.
- Can I require an exempt (salaried) employee to use Paid Time Off (PTO) for partial day absences? Yes, at least in most jurisdictions, including Utah. I think the word may slowly be getting out on this one, but a few years ago this question came up frequently. Under the Fair Labor Standards Act, employees who qualify as exempt from overtime under one of the white collar exemption classifications (executive, administrative, professional, outside sales) may be required to use PTO for partial day absences. But here’s where the confusion probably came from: while it is permissible to require exempt employees to use PTO for partial day absences, it is not permissible for an employer to dock their salaries if the employees don’t have any PTO to use. What’s the difference? When using PTO, the employee’s weekly salary remains unchanged (no deduction is made), and thus the requirement that the employee is paid on a salary basis which does not fluctuate based upon “the quantity or the quality of the work performed” is maintained.
Hopefully, the above information is helpful to you. And remember, next time you talk to Someone, please say hello for me!
This article should not be construed as legal advice. Copyright ©2012 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved.
Jonathan K. Driggs is an employment law attorney with over 19 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com