Question:

Can we promote an employee to a newly created position without giving other employees a chance to apply for it?

Answer:

Generally, and as long as you’re not a federal contractor, you don’t need to post an open position for all employees to see. That said, if your company has an established policy or practice of posting internally, you should be consistent.

Of course, what you can do as an employer and what you should do are often not the same. Posting new positions internally is generally a good idea, even if it creates some extra work. Opening the position to all internal applicants demonstrates transparency and increases the likelihood of finding the best candidate. The employee you had in mind might not actually be the best person for the job, they may not be interested in the position, or other circumstances might change such that having a wider applicant pool would be an advantage. Posting jobs internally also helps you keep a pulse on your internal talent pool and see who is interested in either cross training or promotional opportunities.

Question:

If we terminate a salaried, exempt employee early in the week, do we have to pay them for the entire week?

Answer:

No, you’re not required to pay this employee through the end of the week. The general requirement to pay a salaried, exempt employee for the full week doesn’t apply in the first or last week of employment if the employee didn’t work the full week. Instead, you may pay a proportionate part of their full salary based on the time they actually worked that week. This deduction is allowed under the Fair Labor Standards Act.

Question:

Can we cut a performance improvement plan short if the employee’s performance issues have gotten substantially worse?

Answer:

In general, yes. When an employee is on a performance improvement plan (PIP), and their performance has not improved and has, in fact, gotten worse, it is perfectly reasonable to cut the timeframe of the PIP short and move forward with further disciplinary action, including termination. Unless it’s written to say otherwise—and it absolutely shouldn’t be—a PIP is not a guarantee of employment for the duration of the plan. It shouldn’t alter the at-will employment relationship.

Just be sure that you are following historical practices if you have had similar situations in the past. The most important thing is to remain consistent. Document—and tell the employee—the reason why the PIP was cut short, listing each policy violation or performance issue individually, in case you are asked to provide context at a later date.

Question:

Can we ask references about an applicant’s previous use of sick time? We’d like to get a sense of their reliability.

Answer:

No, you shouldn’t make any inquiries into an applicant’s history of calling in sick. Asking about absences because of illness or injury before extending an offer of employment runs afoul of the Americans with Disabilities Act because it’s likely to elicit information about an applicant’s disability.

Sick leave laws may also come into play. If you’re in a state that requires you to provide sick leave, making adverse employment decisions based on use of protected sick leave use (including deciding not to hire someone) could expose you to liability.

Finally, someone’s past use of sick time is not a good indicator of reliability, particularly when we’ve been experiencing a global pandemic for the last 2.5 years. Asking about this could eliminate great applicants who have had caregiving responsibilities and ultimately have a disparate impact (a legal no-no) on certain protected classes (according to a Kaiser Family Foundation study, 50 percent more women than men reported taking time off work to care for children during COVID-related school closures).

If you still want to consider an applicant’s previous job attendance as a gauge of their reliability, you could ask about their attendance record generally, rather than asking about absences for sickness.