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 week started with the post on Sunday 10/26/14. We talked about when “unknown” and “probably” are not enough under the FMLA. This can be a problem under DOL regulations that require an FMLA certification to be “sufficient” (defined as not being vague, ambiguous or non-responsive). So answers that say “unknown” or “probably” will NOT be sufficient and you should ask for clarification.
TAKEAWAY: It is the duty of the employee to ensure that an FMLA certification is completed fully by the treating physician and returned to the employer; if the employer is not satisfied (or requirements have not been met), it is then up to the employer to ask for clarification.
The post on Monday 10/27/14 talked about a recent court ruling that a tribal hiring preference is not national origin discrimination. On siding with the coal company employer, the court held that tribal affiliation is a “political classification” and not one based on national origin, therefore it is not a violation of Title VII. Of course, the decision could be seen as limited to its facts (centered on a Department of the Interior mineral rights lease and the Navajo Nation), but safety calls for broader awareness.
TAKEAWAY: Be aware of what will suffice to meet the definition of various protected characteristics under Title VII.
On Tuesday 10/28/14 the post questioned what if someone doesn’t request an accommodation, what about the “Regarded As” prong of the ADA? Here a PA dentist fired a long-time employee after she told him she had cancer. She did not request any accommodation; rather, he sent her a letter that said, “You will not be able to function in my office at the level required while battling for your life. Because of this, I am laying you off without pay ….” He just assumed she would need an accommodation at work.
TAKEAWAY: Do not assume anything when dealing with a (possibly) disabled employee. If the person doesn’t request an accommodation (by word or deed), then do not treat them as disabled or needed an accommodation – that could be illegal too.
The post on Wednesday 10/29/14 was about terminating an employee for working a second job while on FMLA leave. The answer, according to the FMLA Regulations, can depend on whether your company has a policy prohibiting outside employment and whether it is evenly and consistently applied to anyone on a leave of absence.
TAKEAWAY: To ensure that employees do not work elsewhere while on FMLA leave, talk to an employment lawyer to make sure you have in place a valid, legal policy prohibiting moonlighting by employees while on leave.
The post on Thursday 10/30/14 was a reminder: don’t just give a form to an employee; provide an explanation and the consequences of not following through with the instructions. Who recently learned this valuable lesson? FedEx. It gave the employee an FMLA certification form but never told her what the consequences would be if she didn’t complete and return it.
TAKEAWAY: Just as with any area, make sure employees know what is expected of them relative to FMLA leave and then, and only then, hold them to it.
The post on Friday 10/31/14 talked about the most common employee lawsuits and how to avoid them. Some of the areas most often subject to suit by (former) employees are discrimination, discriminatory discharge, retaliation and harassment. What are some ways to avoid these suits? Know the laws that affect your company and its employees; another tip is in the post.
TAKEAWAY: You cannot prevent all suits, but you can prevent most and better prepare your company for the ones that are filed. Talk to an employment lawyer to make sure you have in place the systems you need for prevention and defense.
Finally, the post yesterday 11/1/14 reminded us that age discrimination is illegal and so is retaliation against those who oppose it. DSW (formerly known as Designer Shoe Warehouse) paid $900,000 to learn that lesson. The EEOC sued, alleging age discrimination by firing employees over age 40 during a RIF and retaliating against those who opposed the firings. DSW would not settle during the administrative process but it only took 1 week after the suit was filed for it to negotiate this settlement (which includes relief in addition to the monetary payment).
TAKEAWAY: Do not use age as a factor in making employment decisions. Period. If you did, or someone alleges that you did, contact an employment lawyer pronto.
York, Pennsylvania 17403