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ICYMI: Our Social Media Posts This Week -- Sept. 7 - 13, 2014

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 9/7/14 reminded us that even with no return to work date, the FMLA still governs.  A federal court recently ruled that an employee did not forfeit her right to an FMLA leave when she did not provide an anticipated return date. In early 2011, the employee advised the employer, a residential nursing care facility, that she needed time off to take care of her daughter. The leave was approved but the employee did not ever provide a return date. The daughter’s doctor told the employer care would be required through at least July 2011 so the employer assumed the employee would not return within her approved FMLA leave and hired a replacement. At the end of the FMLA leave, the employee did return but was told there was no job. She sued. The court found in favor of the employee on many bases (which are detailed in the post), including that since the daughter’s condition was changeable, the leave was deemed “unforeseeable” and she did not have to provide an anticipated return date.

TAKEAWAY: The FMLA and its interpretive regulations have many intricate parts that can trip up an employer – it is best to check with an employment law attorney and make sure to do it right BEFORE a court tells you otherwise.

The post on Monday 9/8/14 was about the intersection of obligations under the FMLA and ADA.  Why should you care? Well, Princeton Healthcare paid $1.35M to settle a discrimination suit with the EEOC. In the suit, the EEOC alleged that the employer’s fixed leave policy did not consider leave as a reasonable accommodation in violation of the ADA, but merely tracked the FMLA instead. In addition to the whopping monetary settlement, the employer is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the ADA may take and must engage in an interactive process with covered employees (including employees with a disability related to pregnancy) when deciding how much leave is needed. Also the employer cannot require employees returning from disability leave to present a fitness for duty certification stating that they are able to return to work without any restrictions and will not subject employees to progressive discipline for ADA-related absences, and will provide training on the ADA to its workforce

TAKEAWAY: If there is an issue under either the FMLA or ADA, an employer should automatically also consider its potential obligations under the other statute. Do this before the molehill becomes a legal mountain.

Tuesday 9/9/14’s post was about having in place a Will and other documents to protect your loved ones. If you don’t, your wishes (while you are alive or after you die) may not be respected but instead the state’s laws may govern.  

TAKEAWAY: While you can, make sure you have the right legal documents in place to tell doctors and your loved ones what you want to happen if you fall terminally ill or when you die.

On Wednesday 9/10/14 the post provided a 6-step plan to deal with problem employees.  Don’t laugh – every employer has or will have a problem employee.  The question is what to do about that person. The first few steps in this post are to ask yourself if you’ve given the employee a fair chance, seek support/guidance from HR, and prepare a performance improvement plan to give to the employee at a meeting. The other 3 steps are in the post.

TAKEAWAY: Problem employees will not just go away – you must take action to remedy the situation before it harms your business (more than it already has).

Thursday 9/11/14 the post was about a subject most people don’t like to acknowledge: the fact that bankruptcy can solve long-term debt struggles.  Did you know that eliminating bad debt from a credit report can often offset the impact of a bankruptcy filing and actually improve the credit score? There are also other ways a bankruptcy filing may be a benefit – to both the person who is in debt (the debtor) and those to whom the debts are owed (the creditors).

TAKEAWAY: Don’t cringe when you hear the word “bankruptcy”; it can be a good thing in certain situations. Talk to an experienced bankruptcy attorney to see if it is the right action for you personally or if someone who owes you money has filed for bankruptcy protection.

Friday 9/12/14’s post was on a difficult subject: Employers must dot their I’s and cross their T’s. when using consumer reporting information  The federal Fair Credit Reporting Act is filed with land mines. An employer should be careful when using consumer reporting information to make employment decisions on applicants and employees without properly disclosing that it will obtain consumer reporting information and without providing copies of the reports before taking adverse action against the applicants and employees. Home Depot is now the subject of a lawsuit in Georgia that alleges it violated this law. The post also has several tips if you do use consumer reports in the hiring or employment process.

TAKEAWAY: Employers must make sure they know what their obligations are if they use consumer reporting information in connection with employment decisions – failure to fulfill all legal obligations will land the employer in hot and costly water.

Finally, the post yesterday 9/13/14 was about monitoring employees’ social media activity and whether harassment claims are legally protected concerted activity (which can result in certain obligations for the employer)  Yes, the NLRA applies to your company, even if it is not unionized. You’ve heard this from me before. Here, an employee posted on Facebook that her direct supervisor had intentionally overpaid employees, adding that he “needs to keep his creapy [sic] hands to himself … just an all-around d-bag‼” The posts were reported to HR and the employee lied several times about the post before admitting it. She also sent text messages about the investigation to other employees. She was fired for lying and disruptive behavior. She sued for sex discrimination and retaliation, alleging, in part, the discharge was because of her Facebook posts. The court found the Facebook post did not rise to the level of concerted activity here and so found the discharge legal.

TAKEAWAY: All employers, unionized or not, must know what rights employees have under the National Labor Relations Act. Those rights cannot be infringed upon or the employers may be subject to lawsuit. An employment law attorney can assess a situation and give you legal advice as to the potential of NLRA application to a given situation.

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