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Ask the Attorney Archives

During employee’s FMLA leave, we found out the job is better done by a contractor … can we terminate?

10/15/2018
Q: “Our delivery driver went out on FMLA leave, so we jobbed out the deliveries to a contractor. We discovered that using the contractor saves us a lot of money because we don’t have the expense of maintaining a delivery van or keeping someone on the payroll. What do we do when our driver—who doesn’t have the skills to work any other job in our company—returns from FMLA leave?” – Ben, Virginia

Have we provided enough options for religious accommodation?

10/15/2018
Q: “An employee is requesting religious accommodation for Wednesday night prayer study. The employee works at a unit that has different operating hours than the larger units. It is also staffed with fewer people. The operating hours require full time employees work 10:45-7:15 for an eight hour shift, Monday -Thursday. Fridays and Saturdays are open until 5. Consequently, we are unable to accommodate every Wednesday night off without hardship. What we have to offer as accommodation is flexible scheduling: The employee may, with supervisor permission, switch another day with a co-worker. She could also request to be scheduled every Friday and Saturday and have off on Wednesday. An employee may also schedule vacation time on those Wednesdays to attend the prayer study, or apply for jobs at different units that may have additional flexibility. Do these options reflect reasonable accommodation?” – Anonymous, Ohio

How do we resolve this fine line between vacation leave and FMLA leave?

10/15/2018
Q: “We have an employee who has been approved for intermittent FMLA leave to care for his mother who lives in Michigan. (He has provided the medical certification.) In order for our plant to run efficiently, we only allow a limited number of employees to be on vacation at one time. Our vacation year runs from January-December and employees who do not use their vacation days lose them. This particular employee hangs on to his days (at the moment he has 14 left). He wants off the week of Thanksgiving and the days between Christmas and New Year’s, but was denied because other employees have already scheduled vacation for that time. Last year he did the same thing, and then the week before Thanksgiving he told us that he needed to use FMLA for Thanksgiving week. Can we prevent this from occurring again?” – Gayla, Alabama

What if a worker demands to know the reason for their termination?

09/20/2018
Q: “We fired an employee without giving a reason. The employee is requesting the reason in writing. Do we have to comply? Also, we just learned that the new supervisor of the employee never met with the employee to discuss the employee’s position description or the supervisor expectations. The supervisor issued the employee a corrective action. In addition, the employee filed a complaint against someone in senior management. The complaint was never investigated. The employee was terminated the next day after filing the complaint. Is there any liability on the agency?” – Anonymous, Virginia

Employee doesn’t get the promotion, then has to train the new hire: Is there an equal pay issue?

09/20/2018
Q: “A male manager retires and his female assistant fills in while a search for his replacement is made. She apparently covers the job adequately in the absence. The company hires a young male (an MBA) to replace the manager. He is hired at a salary higher than hers. She wants equal pay to her manager, as she is basically training him. Is this an FLSA/discrimination issue? Is the company mandated to give equal pay?” – Anonymous, New York

Can we move paid hours around to fill in gaps in an employee’s schedule?

09/20/2018
Q: “Our company gives bonus time for hours worked over 48 weekly. Can this time that they have already earned be used to fill in time lost? For example, a superintendent has 30 hours banked of bonus time. They worked 28 hours the following week; would it be legal to take his bonus time to bump up hours worked? He is an exempt employee.” – Anonymous, North Carolina

How do nondisclosure agreements affect harassment claims?

09/20/2018
Q: “What are the laws now on non-disclosure agreements as they pertain to sexual harassment claims? Also, in the state of New York, can you require that sexual harassment complaints first must be reported to the company before they file with any outside judicial agencies?” – Anonymous

Is it legally safe to terminate an employee soon after they refuse a relocation?

08/28/2018
Q: “If we’ve verbally notified an employee (three months ago) that their job is moving (due to restructuring/reorganization) to another state, effective next month—and the employee refused the job/relocation (first right to refuse), what is the risk if we lay off the employee now?”

Record retention: What are the New York laws?

08/28/2018
Q: “What are the personnel record retention and separation laws in New York State and City?” –  Ken, New York

Can poking fun at a regional accent rise to the level of harassment and discrimination?

08/28/2018
Q: “We have an employee with a thick Boston accent. Several of his co-workers imitate him, like ‘Where did you pawk your caw today?’ He doesn’t seem to mind, but I can’t really tell. Since there aren’t any protected characteristics at play—such as race or national origin—would that type of ribbing get us in trouble if we don’t stop it?” – Kevin, Maryland