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Employment Law

Is our employee entitled to take FMLA leave so she can try out a new job?

03/15/2013
Q. The minor child of one of our employees has a disability. She was approved to be his personal care attendant and requested FMLA leave to see if she would like to do this as a job going forward … I know FMLA is available to care for a child, but can she use FMLA as a way of trying out a new job?

Can we require a release of legal claims in exchange for severance pay?

03/15/2013
Q. We have to let an employee go because we are overstaffed. In the past, we have given one week of severance pay for every year of employment. We would like to start requiring those who accept severance to sign a waiver. Can we? Do we have to pay more?

Weigh pros and cons when considering mandatory arbitration

03/15/2013
Just because employers can compel arbitration doesn’t necessarily mean that they should. There are pros and cons to such agreements that em­­ployers should weigh carefully before committing to either ap­­proach.

Percentage of union workers continues its long slide

03/15/2013

Unions represent an ever-shrinking slice of U.S. employees, according to the Bureau of Labor Statistics. Only 11.3% of workers were unionized in 2012, down from 11.8% in 2011. In 1981, 20.1% of American workers belonged to a union. Several factors have contributed to the decline.

Calling tactic ‘blackmail’ isn’t necessarily defamation

03/15/2013
Publicly calling an innocent person a criminal can lead to a defamation lawsuit. But what if, during court proceedings, you call a lawsuit a form of blackmail? Is that defamation?

Quest for ‘new blood’ could bleed bank account if it results in huge punitive damages award

03/15/2013
If you place an older worker who has complained about age discrimination on a performance improvement plan  that is essentially impossible to complete, watch out! You’re setting yourself up to pay out huge punitive damages—even if the employee winds up winning just a modest retaliation verdict.

Instead of firing after FMLA and disability leave, consider reasonable accommodations

03/15/2013

Do you automatically terminate employees who aren’t ready to return to work after using up all available FMLA and short-term disability leave? If so, you may be asking for an ADA refusal-to-accommodate lawsuit. The better approach: Determine if reasonable accommodations might help the employee return to work despite lingering problems.

Whistle-blower isn’t doing her job? Feel free to discipline

03/15/2013
Here’s an important reminder when management gets nervous about terminating a so-called whistle-blower. Solid, legitimate reasons for discipline take precedence over protections to which whistle-blowers are entitled.

Clairvoyance not required to ID need for FMLA

03/15/2013

Under the FMLA regulations, if an employee is incapacitated, someone else can notify the employer, whose FMLA obligations are then triggered. But that doesn’t mean that a co-worker merely telling a supervisor that the employee is “sick” works as notification. Employers are entitled to better notice than that.

Don’t try to guess reasonable accommodations

03/15/2013
Employers have no obligation to try to anticipate if a disabled employee needs reasonable accommodations. It’s up to employees to ask for accommodations help.