Legal Aid Employment Law

Q. Can an employer establish different probationary periods for new workers?

A. An employer is free to set up a probationary period for new workers, during which an employee may be terminated with or with no reason. This could make the employer vulnerable to a claim of discrimination while probationary periods may be established for categories of workers, or different employees. An employer should be prepared to justify any gaps.

Q. Does "flirting" constitute sexual harassment?

A. It is hard to say a hard-and-fast rule. When mild and friendly bantering or horseplay involving the genders cross the line and be undesirable and too far is the type of thing courts exist to decide.

Q. What's the difference between independent contractor and employee?

Employees' paychecks are subject to the withholding of personal income taxation (both national and state). An employer has half of the Social Security tax and the Medicare tax deducted from the worker's wages, and the company directs the other half. An employer makes contributions into the national (and sometimes state) unemployment insurance system, various state employment methods (for example, disability or education and training), and provides worker's compensation for the employee in case of an accident that occurs throughout the course of employment. This "loading" for taxation and benefits might represent a cost to an employer of an additional 20% to 35 percent over and over an employee's gross salary.

Q. Can a company insist that its non-exempt workers take off time rather than cash for working overtime?

A. Generally (and surprisingly), 'comp time' (compensatory time off granted instead of overtime pay) is ILLEGAL under national law. Under federal legislation, if workers work over 40 hours in a work week, then they have to be PAID for overtime in time-and-a-half. This applies to all employees in most countries. Employers may give time off during precisely the exact same week they work additional hours (e.g., work 10 on Monday, work just 6 on Tuesday), but when they cross the 'more than 40 hours in a week' threshold, they are entitled to overtime pay. Comp time is permitted within one pay period (e.g., they might have the ability to take time off next week if they work overtime this week), however when it isn't in the exact same week, the comp time must be supplied in time-and-a-half (e.g., 1.5 hours of time off for every hour of overtime worked).

Q. Can a foreigner work for a U.S. employer whilst here on a B-1 company visitor visa?

A. No. The notable feature of this class is that the alien cannot engage in gainful employment in the United States. Key here is whether the alien is going to be paid a salary by a U.S. business or otherwise participates in action here which results in payment on the foreigner of a commission for services rendered here. Gray areas on this issue might become a problem for some company traffic in the category that is B-1. It is ideal to consult to make sure that you doesn't violate federal immigration laws and stays in lawful status.