Answers to 9 Frequently Asked Employer Questions

Published on November 2, 2016

Below are answers to employers’ frequently asked questions on a variety of topics including employee terminations, overtime, leave laws, and more.

What do I need to know about drug testing employees?

• Drug policy should state that drugs are not allowed if they are illegal under “local, state, or federal law.”
• You can refuse to hire or you can terminate someone for a drug test showing positive for drug use, including marijuana.
• No need to allow even medical marijuana use.

Do I have to allow employees to see their personnel files?

• Employees (and former employees) may request to see their personnel files at least once a year.
• The file needs to be available “locally” (at employee’s workplace) or at a mutually convenient location within a reasonable time from request.
• Employers can remove erroneous and irrelevant information from the file, although employees can rebut such removal or make statements of correction.

What are the basic overtime rules?

• Nonexempt employees are entitled to overtime.
• Overtime generally is payment at a rate of time and a half of the employee’s regular hourly rate.
• In Washington, overtime is paid when the employee works more than 40 hours in the normal 7-day workweek, regardless of how many hours are worked in a single day.
• Employees cannot waive their right to overtime.
• Companies can make overtime mandatory, even if the employee does not want to work overtime.

What happens if an employer misclassifies an employee as exempt?

• Employers will be liable for the misclassified employee’s overtime and potentially penalties.
• Overtime can go back three years.
• This is especially problematic if there are multiple workers or a category of workers misclassified.
• Employers are liable even if they voluntarily try to correct a misclassification.
• It is important to make correct classification in the first place.

What are the rules for rest periods?

• Employees are entitled to a paid rest period of 10 minutes for every 4 hours worked. The rest period must be no more than 3 hours into the work period.
• For employees that work 3 hours or 7 hours, you should calculate a 10 minute break because of the requirement that employees cannot work more than 3 consecutive hours without a rest period. If an employee works less than 3 hours, no need for a 10 minute break and if 7 hours no need for two 10 minute breaks (just one).
• Employees can take mini-breaks that add up to a single 10 minute rest period.

What are the rules for lunch breaks?

• Employees are entitled to a 30 minute lunch break when working a 5+ hour shift.
• The lunch break can be unpaid if the employee is free from all duties during that period. Otherwise, the employee must be paid (such as if the employee is on call or performs any work during the break).
• Employees can waive their lunch break if the employer agrees. The waiver should be in writing, signed by the employee.

What’s the latest on hiring independent contractors?

• Independent contractor status is strongly disfavored and under increasing scrutiny.
• The default worker status is “nonexempt employee” and you must meet a high burden to claim an independent contractor.
• Generally, to be an independent contractor, it must state so in a contract, the worker must have a UBI number, be allowed to compete, be free from control of boss, etc.

Do I need to give an employee all the reasons for his/her termination?

• Be truthful in any termination.
• You don’t need to give extensive examples/detail.
• If an employee requests the reason for their termination, then you must provide it in writing within a reasonable time (10 days).

Do I need to pay out unused leave time upon an employee’s termination?

• The law doesn’t require payout of vacation, or sick time, or PTO upon termination.
• An exception is if the company states it will do so either in the employee handbook or in the employee’s contract.
• You may want to address this in a severance agreement.

Britenae Pierce is a member in Ryan, Swanson & Cleveland, PLLC’s Employment Rights, Benefits and Labor Group and can be reached at 206.654.2289 or [email protected].