When worker takes time off for incarceration

Carrie Mason-Draffen

12:16 PM EST, March 7, 2008

DEAR CARRIE: I read with great interest when you wrote two weeks ago that an employer could legally require a doctor's note from an employee who was out several days because of illness. Would the same policy apply to prison time?

One of my employees called to say he couldn't report to work for a month because he was in prison for a probation violation. After he returned to work, we told him several times we needed proof of his incarceration. To date he has never produced anything other than a letter from his attorney. Are we entitled to require more substantial proof? I am sure some governmental office could provide him with a letter.

-- Show Me the Proof

DEAR SHOW ME: You certainly are within your rights to ask for more official proof, according to employment attorney Jeffrey Schlossberg, a partner at Ruskin Moscou Faltischek in Uniondale.

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"An employer is entitled to legitimate documentation showing where its employees were if they were not present at work," he said. And in the case of a jailed employee, an employer can legally ask the worker to provide more official proof than a letter from his attorney, Schlossberg said.

If the employee doesn't provide the proof, the company could dismiss him.

"If the employer is not satisfied with the documentation provided, the employer could terminate the employee's employment," Schlossberg said.

Three other things are worth noting.

--Since New York is an employment-at-will state, an employee who isn't covered by a contract can be terminated at any time for no reason, let alone for not providing unsatisfactory documentation for an incarceration.

--The type of official documentation provided could vary depending on the place of incarceration. A local jail, for example, may not have procedures for providing such information as sophisticated as those at a state prison, Schlossberg said.

--You should make sure you treat all employees in similar circumstances the same.

"In other words, it would be discriminatory to request detailed documentation from a Hispanic employee but less formal documentation for a white employee," Schlossberg said.

DEAR READERS: In the past week I received several letters responding to the column about the private-school teacher who wanted to be paid for being forced to attend a graduation on a Sunday. The school doesn't have to pay her because teachers are exempt from overtime. All of the letters took the teacher to task. Here is a sample:

DEAR CARRIE: I was disappointed to read that a teacher is more concerned about getting paid on graduation day than attending this exhilarating ceremony. The choice to become a teacher is a decision that obviously requires people to give of themselves. The nights I spend grading papers and creating lessons, going to workshops to improve and stay current with educational reform, and keeping up with the daily routine all go along with the job.

The choice to become a teacher is a decision that has an impact not only on the future of your students but also on your life. A teacher's desire to work with children is a calling and does not end in the classroom. Watching them grow and making a significant difference in this world is rewarding alone.

[That reader] should be proud to attend the graduation ceremony, because teachers are partners in their students' learning and a reason these students have this wonderful opportunity. Believe me, I truly believe that teachers are underpaid, but, as a teacher, I would take real pleasure in watching my students be part of the "pomp and circumstance."