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Jonathan Hyman

I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that the signed agreement include a nondisparagement clause. The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it after it has been breached. That’s not as easy as it once was.

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Q. We have a school bus driver who takes a 10-minute bathroom break before dropping off her empty bus at the depot. We’ve been deducting the minutes from her paycheck. She says she must take the break due to her medication. Do we have to pay her?

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Q. We’ve been keeping I-9 forms for an indefinite period. Now I hear we only have to keep them for three years for active employees and one year for terminated employees. Which is correct?

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Q. We set up a room for new mothers to express milk, complete with a refrigerator and comfortable chair. Now we have a new mother back at work after just four weeks who has the grandmother bring the infant to the workplace every three hours for nursing. This is very disruptive. Can we tell her to express and store the milk instead?

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The recently enacted ADA Amendments Act was passed to make it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’ …” It does that by expanding the definition of the term “disability.” In fact, the definition of “disability” may now be so broad that it covers conditions such as nicotine addiction.

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Q. We dock hourly employees who arrive late for work, but not our exempt employees. There’s quite a bit of resentment about this policy, especially since over time our exempt employees have been extending the time it takes them to get to work during inclement weather. We know we can’t dock exempt employees if they make it in during snow days, but can we discipline them?

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Q. We’ve been accommodating a disabled employee by letting her skip overtime. Her doctor says she needs extra sleep. But now we need to lay off several employees and start requiring mandatory overtime. Can we terminate those employees who can’t do overtime? That would include the disabled employee.

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Q. We offer health insurance coverage only for individual employees. We’ve never provided family coverage for anyone, nor do we make it available at the employee’s cost. An employee with a daughter in grad school says the new health care law requires that she be allowed to add her daughter to the plan because she is younger than 26. Is this true?

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Q. One of our employees has a 16-year-old daughter who lives with her and is going to have a baby. The grandmother-to-be wants 12 weeks of FMLA leave to care for the daughter and bond with the grandchild. Is FMLA leave available for her? She says she will be co-parenting the infant. Is she basically in loco parentis to the baby and, therefore, eligible?

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Q. Our company lets employees take two 15-minute paid breaks during their eight-hour shifts. One employee usually leaves the premises during her break and drives to a convenience store. If she were involved in a car accident on the way, would the company have any liability since she is still on the clock?

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