An Ounce of Prevention

You can ask for proof of ability to work in the United States once: at the time of hire. But you cannot ask for new documentation later. You have a duty to accept documentation that looks credible, but you’re not required to call the issuing agency or otherwise verify its authenticity. However, if you ultimately learn that the employee has no right to work here (for instance, employees have been known to admit to “borrowing” someone else’s I.D.), then you should fire them, Roach says, “or the employer can face civil or criminal sanctions.”

If not, however, there’s nothing further to do. “The only person who gets hurt by the mismatch is the employee, because their Social Security account won’t get credited,” Metcalf says.

Leaves of Absence

Workers may qualify for leave under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and workers’ compensation. The rules that govern these leaves are complicated, and sometimes leave eligibilities can overlap. As a result, “they’ve been referred to as the Bermuda Triangle,” says George Wood, a partner at Minneapolis-based law firm Littler Mendelson, P.C. “The leave issues are much more complicated than they were 15 years ago. No two situations are the same, and you have to figure out if a person is entitled to leave, how they get it, and what your obligation is as an employer.”

The Family and Medical Leave Act applies to firms with at least 50 employees at one facility, or at facilities within 75 miles of one another. It allows employees who have worked at least one year for the company to take 12 weeks of leave in any given year to care for a newly born or adopted child. The law also allows them to take 12 weeks off to care for themselves if they are seriously ill, or to take care of a sick spouse, child, or parent. A business doesn’t have to pay workers who are taking FMLA leave, but it does have to maintain their health benefits.

A worker who qualifies for family and medical leave can take off 12 consecutive weeks or take time in smaller blocks instead. An employee might need one morning a week to take a parent to the doctor, for example. “When employers say no to people who want a reduced schedule, they don’t realize that the FMLA allows for that,” says Joel Abrahamson, a partner at the Minneapolis-based law firm Leonard Street and Deinard, P.A.

Most workers are honest about their reasons for needing to take leave, but some abuse the privilege by faking a serious illness or some other deception in order to get a reduced schedule. “Some workers think it’s a free pass to skip work,” Abrahamson says. Businesses can ask for a medical certification from an employee before granting their leave. A family and medical leave checklist that asks for a medical certification and written request for leave helps businesses handle leaves consistently.

When a worker needs just a few hours of leave every week, some employers give them the time without docking pay or labeling the time as a family and medical leave. That’s particularly true when unpaid time off would involve figuring an hourly wage for a salaried employee. But even if the company pays the worker for the time, Wood says, it’s important to label the break as family and medical leave. That protects the company from having to grant the same worker an additional 12 weeks of leave later in the year if another serious medical situation arises.