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Tuesday
Dec272016

ICYMI: Our Social Media Posts This Week – Dec. 25 - 31, 2016

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.

In the posts on Sunday 12/25/16, here and here, we wished you and your family and friends a happy holiday!

TAKEAWAY: Sometimes you just have to take a time out and enjoy.

The post on Monday 12/26/16 noted the NLRB challenges confidentiality clauses – something significant to ALL employers. Wait, don't tune out just because this deals with the National Labor Relations Act – this decision affects EVERYONE. Here, Bridgewater Associates had confidentiality provisions in its standards employment agreement. Some of the actual provisions are in the post. One defined confidential info as including any non-public information relating to its business or any current or former officer, director, employee or shareholder. In June 2016, a complaint was served alleging violation of Section 7 (which, among other things, gives employees the rights to mutual aid or protection). The NLRB withdrew the complaint in October 2016 without trial or ruling (so it probably settled). However, the complaint was still filed.

TAKEAWAY: Employers are now on notice that the NLRB will look carefully at confidentiality provisions in legal documents – of all employers, not just those that are unionized -  along with how restrictive they are or could be and whether or not there is any violation of the Act. Be careful.

In the post on Tuesday 12/27/16 we talked about a United Airlines worker's misuse of FMLA leave grounding the claim. So what happened? UA fired an employee for misusing medical leave during a vacation and then lying about it. The employee was approved for intermittent FMLA leave for an anxiety disorder. When UA provided its reason as a defense, he had nothing to show the defense was a pretense for retaliation. The post contains more details on the background, including applicability of the honest belief rule.

TAKEAWAY: Make sure the reasons for FMLA leave are valid and that the employee does not misuse the leave – work with an employment law attorney if there are questions.

The post on Wednesday 12/28/16 noted that job descriptions are key to ADA compliance. Greg accepted an offer for a position that had a job description – except it didn't list travel as an essential duty (or even necessary). He started the job and did travel. During one trip he was injured. He then began to telecommute but never asked for an accommodation He couldn't travel after surgery and asked that someone else stand in at meetings. More details are in the post. Eventually he was discharged. He sued, saying he was disabled and needed accommodation. His complaint was dismissed on several bases (see the post) including reference to the job description.  

TAKEAWAY: Not only should you have job descriptions, they should be accurate and include the essential functions of the job.

In the post on Thursday 12/29/16 we learned to apply this (or a similar) fair and firm 5-step progressive discipline policy (and suggested you vet any policy with an employment law attorney). Do you have to have a disciplinary policy? No. Should you? Yes. It allows your managers to have guidelines to follow and employees to know what happens when they don't do what is required. So what steps are suggested? First, a verbal warning. However, make sure to note in the file when the warning was given, by whom, and what it was about, along with consequences if no improvement is seen. The second step is a written warning. This is similar to the verbal (meaning it contains the action to be improved upon and he consequences if that does not happen), and the employee signs and dates it (not as to agreement with it, but that it was received). Steps 3-5 are in the post.

TAKEAWAY: As with all policies, first make sure they are legally compliant, then enforce them in a uniform manner.

The post on Friday 12/30/16 suggested that before you fire, know 3 limits on at-will employment. Most employees in PA are hired on an at-will basis, meaning they can be fired at any time, with no notice, and they can likewise quit at any time, with no notice. However, there are limits to when an at-will employee can be discharged. First, if the job termination has an illegal discriminatory purpose. Second, if the discharge is against public policy. The third reason is in the post.

TAKEAWAY:  While you don't have to talk to an employment law attorney before you fire an employee, it is a good idea to ensure that there are no adverse legal ramifications (or that you can deal with any that exist).

Finally, the post yesterday 12/31/16 asked: Can an employer require an employee to submit an FMLA certification from a specialist for FMLA leave? You have probably dealt with situations in which the primary doctor's certification for a requested FMLA leave is insufficient. So can they require more? Erica coincidentally took a leave after discipline or coaching about her performance. Once she turned in a doctor's note that said she was under the care of a psychiatrist and therapist. The employer then required her to get a certification from the treating psychiatrist, including fitness-for-duty at the end of the leave. Erica got the note and went on approved leave. Prior to return, Erica submitted a return to work note; the employer asked for additional details and didn't allow her to return until that was received. She submitted the second note, then resigned. (More complete details are in the post.) Then sued, alleging the second initial certification and delayed return to work violated the FMLA. The court rejected her claims for several reasons (in the post), including that the primary care doctor referred to the psychiatrist as the basis for FMLA leave and the 2 criteria for return to work (in the statute).  

TAKEAWAY: Employers should get the information they need in order to approve a requested FMLA leave, but also in order that the employee return from that leave.

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