Test Your Legal Insight

Can your employees deliver pepperoni pizzas? Are salaried workers exempt from overtime?

September 6, 2001
How many of these questions can you answer? Careful - sometimes theconventional wisdom isn’t so wise. The answers are below.

    Also, remember that the information contained in thisarticle is intended to provide useful information on the topic covered, butshould not be construed as legal advice or a legal opinion. State laws maydiffer; check with your statelabor department.

  1. Ifan employee is on salary, does that mean he or she is exempt from overtime?
  1. Isit OK for you to ask an applicant if he drinks alcoholic beverages?
  1. Isit OK for you to ask an applicant when she graduated from high school?
  1. Can17-year-olds deliver pepperoni pizzas?
  1. Youremployee provides you with an obviously forged doctor’s note in connectionwith his Family and Medical Leave Act (FMLA) request. You fire him for thedishonest act. Can he win a retaliation suit against you?
  1. Youremployee lives approximately 15 miles from your offices. You’re movingyour offices to a suburban location on the opposite side of the city. Howfar do the new offices have to be from the employee’s present residence inorder for a move to a new residence to be allowed as a tax deduction?
  1. Ifyou fire a 60-year-old because her salary is too high and replace her with a35-year-old at a lower salary, is that age discrimination?
  1. Howlong after you terminate someone do you have to keep his I-9 form?
  1. Shoulda sexual harassment policy indicate how long an investigation could take andwhen an answer can be expected?
  1. Canone of your employees talk on a cell phone in Brooklyn?


Salaries and overtime:
Employers often move employees from hourly to salary, in hopes of avoiding overtime-pay requirements. This sometimes gets them introuble. There’s nothing in the law that says that because an employeereceives a salary, that employee is automatically exempt from the overtimerules. It depends on other factors. For more information, try the DOL.

Generally, an employer can ask about a candidate’s drinking habits, solong as the questions aren’t likely to elicit information aboutalcoholism. For more information, try “InterviewQuestions: Legal or Illegal.”

High school:
This isn’t expressly prohibited under the law, but itmay not be such a great idea. You may want to ask, "Did you graduate from high school?" instead, although even that may notbe such a swell idea. For more information, try “InterviewQuestions: Legal or Illegal.”

Pizza delivery:
According to the DOL,driving is one of the 17 hazardous non-farm jobs off-limits to people under18.

Phony note:
He can sue you for retaliation, but you’ll probably win. Clickhere for more info.

The new offices have to be at least 65 miles from the employee’s presentresidence in order to qualify for a deduction for moving to a new residence.Learn the “50-miletest.”

Age discrimination:
Not necessarily. In one case, the court found that where the motivatingfactor was salary, there was no age discrimination. Moreon age discrimination.

Immigration forms:
According to Matt Miklave and Jon Trafimow of Epstein, Becker & Green,I-9 forms should generally be held for three years after hiring or one yearafter the date of termination, whichever is later. So if you terminate anemployee one year after hiring him, you keep his I-9 for two more years.

Indeed, length-of-investigation is often included in harassmentpolicies.

Cell phones:
Not if your employee is driving in Brooklyn, Ohio, which is one of several places that ban phones (unless headsets are used) whiledriving. The states of Florida, Massachusetts, and California have minorrestrictions on cell-phone usage as well. TheNational Council of State Legislatures in Washington, D.C. has moreinformation.

Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. State laws may differ; check with your statelabor department.