Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
First up, the post on Sunday 2/2/14 was about FMLA eligibility when an exempt employee took a lot of FMLA leave in the prior year. The answer can come down to whether or not the employer could prove that the employee had not worked the requisite hours (and hence had not met the threshold for FMLA eligibility).
TAKEAWAY: Employers must keep track of employees’ hours worked, whether or not they are exempt. If there is no record, that could come back to bite the employer in an FMLA leave scenario.
On Monday 2/3/14 the post was about 10 Do’s and Don’ts for social media policies. This is especially important in light of the NLRB’s push for oversight and review of policies and its decisions invalidating many policies as supposedly in violation of the NLRA. [NOTE: If you don’t care because your business is not unionized, think again!] The Do’s and Don’ts were about an employer’s confidential information, employees’ comments on legal matters, employees making disparaging remarks about the employer, what if any control employers can have over employees’ social media posts, and conversations about co-workers and supervisors.
TAKEAWAY: It is important how you phrase your social media policies. Make sure they are legally compliant before you get called to the mat.
Next, on Tuesday 2/4/14 the post was about possible employer liability for employees who text while driving. If this is made part of the job, or becomes part of the job implicitly, whether or not required by the employer, then the employer could indeed be liable for damages.
TAKEAWAY: Employers should prohibit employees from texting (or otherwise using their mobile devices) while behind the wheel, whether in their vehicle or a company vehicle.
Wednesday 2/5/14 brought a post with 10 legal tips to fire an employee. The tips include the tone for the meeting, the atmosphere, the reason for the discharge, documenting the employee’s work history (and basis for discharge), explaining what will happen next, maintaining confidentiality to the extent possible, discussing responses to reference requests, retrieving company property, conducting an exit interview, and allowing the employee to say goodbye. Handled properly, these tips help make the discharge situation less ugly and less hurtful for both the employer and employee.
TAKEAWAY: Done the right way, a discharge does not need to get ugly; it can remain professional. A plus is that it is then less likely to result in a charges or a suit by the employee.
Thursday 2/6/14 the post was about what it takes for an employer to fulfill its obligation for interactivity in the ADA accommodation process. The article talked about a case in federal court where the employer had nothing to show that it reasonably participated in the accommodation process. The result? The case will proceed to a jury trial.
TAKEAWAY: Under the ADA, employers have an obligation to participate in the process and offer reasonable accommodation. Don’t let a court decide after the fact that you did not fulfill your obligation.
The post on Friday 2/7/14 provided some sample FMLA policies. Granted, these were for a university, but they can be adapted for other employers’ use. As always, though, ensure that your policies are legally compliant and appropriate for your business.
TAKEAWAY: Employers should have policies on various leaves, whether covered by statute or other, so that employees know what to expect. Also, employers should evenly enforce the policies once they are in place.
Finally, yesterday, 2/8/14, brought a post about whether or not a shift change can form the basis for an age discrimination claim. In that case, there was no evidence of an adverse action (required to sustain a claim), so the court dismissed the case.
TAKEAWAY: Make sure there is a valid business reason for any change to an employee’s job so that you as the employer can withstand possible court challenge.
Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.
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