Worker retiring can't collect jobless benefits

DEAR CARRIE: A longtime employee has reached retirement age and has started to collect Social Security benefits. If he retires from his job here, can he collect unemployment benefits? When that time comes, should I ask for a letter confirming that he is retiring? -- Question of Benefits

DEAR QUESTION: No, he couldn't collect unemployment benefits in the scenario you described, for two reasons. Employees who quit generally aren't eligible for benefits. Secondly, workers who apply for benefits must be willing and able to work. You can't retire from a job and be considered willing and able to work.

As for asking for a letter, it's not a bad idea to have one on hand as evidence, in case the employee insists on unemployment benefits.

DEAR CARRIE: I have two questions. Doesn't state labor law require employers to give employees a 15-minute break even if they work just four hours a day? And what are the laws regarding sick and personal time? Must I explain to my employer my reason for taking off? -- My Rights

DEAR MY RIGHTS: You're out of luck on breaks. The only break state law mandates is a minimum 30-minute meal break for employees who work more than six hours a day. In addition, many companies customarily give their employees a 15- to 20-minute rest break, even when they work as few hours as you do, but that is up to the employers.

As with the short breaks, state law doesn't require companies to offer paid time off such as vacation or sick days. So when they offer those perks, they can set their own policies, such as requiring employees to prove they need a sick day.

"Those employers who do grant employees such fringe benefits are allowed to put conditions on the leave," said employment attorney Howard Wexler of Seyfarth Shaw in Manhattan. And those conditions could include "requiring a note from a doctor substantiating an employee's claim that they were unable to attend work because of an injury or illness."

Despite the wide leeway in setting their policies for paid time off, employers face some restrictions.

For example, they should ask workers for relevant information only, Wexler said. So when an employee returns to work after recuperating from a broken leg, asking for information concerning his or her mental-health records would be out of bounds, Wexler said.

Employers are also restricted on the information they can require an employee to provide while on leave under the Family and Medical Leave Act.

"Where the employee has already been approved to take FMLA leave on an intermittent basis, requiring a doctor's note for each instance of intermittent leave can give rise to a claim of FMLA interference," he said.

New York City's Earned Sick Time Act, which took effect earlier this year, also limits when employers can ask for proof, Wexler said. Under that law, employers can require documentation from a licensed health care provider only if an employee uses more than three consecutive workdays as sick leave, Wexler said.

The city's law requires employers with at least five employees to provide eligible workers with up to 40 hours of paid sick leave a year, Wexler said.

On a general note, state law says that employers who grant paid-time off must notify employees of the policy ahead of time in writing or by posting the information.

"Such policies should address the permissible reasons for taking leave as well as the consequences for failure to follow the procedures associated with the leave," Wexler said.

Go to http://bit.ly/AkPTqT for more information on paid-time off. Go to http://on.ny.gov/12ZicQD for more details on unemployment-benefits eligibility.