Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 10/25/15 asked can you sue the boss for making you answer late-night email? This is another in the line of exempt and non-exempt employee issues – if the employee is non-exempt and due pay for any overtime hours worked, and the late-night emails put her/him into that category, then s/he must be paid for that time. The problem is that many employees just do it and don’t report the hours worked so the employer may not know about it. If, however, the employer is aware of the work, the employer should require the employee to record time for that work and pay for it; if pay is not intended, then the employee must be told to discontinue working late at night. Additional details are in the post.
TAKEAWAY: Employers are responsible to pay employees for all time worked; if working late at night answering emails is authorized by the employer, then pay is due for the time devoted to that duty. Make sure you know what your employees are doing and when they are doing it.
On Monday 10/26/15 the post was about light duty, employment termination, and other Q&A. The first question discussed is if an employee is on light duty, but no light duty is available, can the employment be terminated? As the post notes, if the light duty is due to a disability, then this is a situation of reasonable accommodation under the ADA. Can the person perform the essential functions of the job with or without reasonable accommodation? If so, and that means the person can return to work full time, then no light duty is necessary. If no reasonable accommodation is possible (remember the employer need not create a new position), then both accrued but unused leave and FMLA leave should be considered. If neither is available, but a reasonable length of unpaid leave would pose no hardship to the employer, then that should be looked at as a reasonable accommodation. If leave is not a possibility, and there is no other position to which the employee can be reassigned (even temporarily, as a reasonable accommodation), then discharge can occur. Other questions are in the post and include what to do if an employee is not aware of any reasonable accommodation during the interactive process.
TAKEAWAY: The ADA (and its possible interaction with the FMLA) is usually neither simple nor cut & dry. It is often helpful to discuss the issue with an experienced employment law attorney.
In the post on Tuesday 10/27/15, we reminded you to pay attention to details when disciplining an employee. More information on the specific case are in the post. Details can make or break the ship (so to speak).
TAKEAWAY: One, if not the, most important thing in administering discipline is to ensure adherence to policy (if applicable) and uniformity.
The post on Wednesday 10/28/15 asked are you are using the new FMLA forms (and reminded that if not, you should be). The new forms issued by DOL are effective until 5/31/2018. They appear similar to the old forms but include references to GINA – if you don’t know what that stands for, contact us. The post also includes a link to the new forms (in case you don’t have them yet).
TAKEAWAY: Make sure to remain compliant – use the new FMLA forms. If you have questions when completing them, consult an experienced employment law attorney.
The post on Thursday 10/29/15 asked what’s in your employee personnel files? Is there just one file for each employee or do you separate medical information from the rest of the file? If you don’t do the latter, you should. In fact, you must, legally. The post gives you more details on what should be in the medical portion of the file, along with items that should be separate from the “main” file and what should be in the “main” file.
TAKEAWAY: Know what (legally) may or must be in what part of an employee personnel file. If you are unsure, don’t wait for a finding that you guessed incorrectly – consult with an experienced employment law attorney.
The post on Friday 10/30/15 served as a reminder: when done with the FMLA, don’t forget the ADA. This is the reverse of our post on Monday 10/26. When FMLA leave is up, and the employee cannot yet return to work, discharge is not the automatic next step. Consideration of whether or not there is a qualifying disability under the ADA is the next step. If so, then the interactive accommodation process begins. If not, then discharge might be possible.
TAKEAWAY: In just about every situation, when dealing with either the ADA or FMLA, look at the situation under both laws in case both apply.
Finally, the posts yesterday 10/31/15 (here and here) were not scary but merely conveyed wishes for a Happy Halloween.
TAKEAWAY: Halloween can be fun – but remember that if this is a workday for your business, employees must still adhere to grooming policies unless the employer makes a special exception.
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