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North Dakota

Focus on performance–not attendance–when firing employee who used FMLA

05/18/2015
Employers that rely on absenteeism to fire such a worker may find themselves in court arguing over which absences and late arrivals should be included or excluded—and hope they got it right.

Promoting employee: Yeah, that probably doesn’t count as retaliation

04/13/2015

It’s considered protected activity when employees complain about harassment based on ethnicity or other protected characteristics such as sex, race or religion. That means employers can’t retaliate against employees for having filed a harassment complaint. Now a court has clarified the obvious: Promoting an employee isn’t retaliation.

Wrong classified employees as exempt? Don’t take shortcuts when fixing your error

04/13/2015
Employers must follow strict rules if they want to rectify misclassification of employees and make up their unpaid overtime. Don’t expect to just cut them a check and put a note on the paystub.

Routine medical care doesn’t trigger FMLA

04/13/2015
The FMLA is supposed to protect employees from losing their jobs when they can’t work due to a serious health condition. Minor maladies such as colds, headaches and body aches usually aren’t enough to merit protected leave. That’s true even if the employee goes to a doctor and gets a prescription, unless the health care provider also tells the worker to return within 30 days for a follow up or otherwise actively monitors the illness.

Use trial accommodation to test feasibility

04/13/2015

Do you worry that starting accommodations for a disabled employee may mean you have to continue them indefinitely? Relax. In fact, a trial accommodation may actually benefit employers in the long run. If the accommodation turns out to be disruptive, impractical or more costly than you thought it would be, you can stop it.

No do-overs for employee who files serial suits

02/18/2015
An employee who loses a lawsuit over her termination can’t revive the litigation a second time just by coming up with a second claim that could have been raised earlier.

Pick one good reason to justify firing

02/18/2015
A poor performer may disappoint on many levels, doing lousy work and failing to get along with others … harassing co-workers and fudging time sheets. While you should document all the problems, you don’t have to cite every one when you terminate the employee. Pick one and stick with it.

Trucking company won’t collect fees from EEOC

01/21/2015
The EEOC has won a reduction of a large attorneys’ fee award it had been ordered to pay for an allegedly frivolous lawsuit.

Employee’s discrimination complaint shouldn’t derail legitimate discipline

01/21/2015
Some employees think they can keep from getting fired by going to HR or the EEOC with a discrimination complaint. Then, they reason, if their employer does terminate them, it will be retaliation. Fortunately, that’s not true.

Whistle-blower alert: Beware punishing employees who report customer wrongdoing

01/21/2015

You may prefer a “don’t rock the boat” mentality when it comes to reporting to police or other governmental authorities that a customer may be breaking the law. That doesn’t mean you can force employees to remain silent—or worse yet, punish them for going to authorities. Doing that could cost a fortune in damage awards, especially if it turns out that your employee was right.