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Ralph Peterson

Accruing sick leave while on FMLA

04/15/2011
Q. If an employee is on FMLA paid sick leave, can we stop her from accruing sick leave while out?

Catch 22: The records-retention steps you must always be ready to take

12/14/2010

Employers and HR professionals hear it all the time: You must be prepared to preserve relevant documents and produce them if you are sued. You can take some preparatory steps to ensure that you can comply with inevitable litigation holds and are proficiently primed to assist your attorneys should litigation occur. This list of 22 to-do’s can guide your document and data preservation and retention procedures:

Does the Florida Workers’ Comp Law require pre-suit notice in retaliation cases?

08/06/2010
Q. We are a private company that provides services under contract to a subdivision of the state. Normally, before any tort lawsuit has been filed against us related to our services to the state agency, we have received a pre-suit notice as required under Section 768.25, Florida Statutes, to trigger a waiver of sovereign immunity. A former employee has brought a lawsuit against us, alleging that his discharge was unlawful workers’ compensation retaliation under Section 440.205, Florida Statutes. However, he never sent us a pre-suit notice for this statutory tort. Can we get the case thrown out?

Now that the ADAAA has been enacted, can former employee apply it retroactively?

08/06/2010
Q. One of our security employees uses a hearing aid. He could not pass the unaided hearing requirements of his job. As a result, we let him go. His layoff occurred in 2007, when he first brought a claim for an alleged violation of the ADA. He claims that with the subsequent adoption of the ADA Amendments Act of 2008 (ADAAA), an employer is not allowed to consider mitigating measures in determining whether an employee has a disability. Can the ADAAA be retroactively applied so he is deemed to have a disability under the ADA?

Supreme Court expands time to sue over policies with disparate impact

08/06/2010
There may be a ticking time bomb lurking in your employment policies and practices. It may go off at any time, when you least expect it. During its most recent term, the U.S. Supreme Court unanimously ruled that employers can be held liable upon the use of employment practices that have a disparate impact on employees, no matter how long ago the challenged practice was adopted.

OK to use deductions to collect from employees?

05/11/2010
Q. If an employee owes us money, can we collect it through deductions from his wages?

Can laid-off, injured worker collect workers’ comp benefits?

05/11/2010
Q. We had to lay off an injured worker for economic reasons. He has not attempted to work for a year since that layoff. Will he be entitled to temporary benefits under the Florida Workers’ Compensation Act?

Can subcontractor’s employee sue prime contractor for work site negligence after injury?

05/11/2010
Q. Our company was a general contractor on a construction job. A subcontractor performed the electrical work. One of the subcontractor’s workers was injured while leaving the construction site. The subcontractor has denied compensability of the workers’ compensation claim, saying that the accident wasn’t within the course and scope of employment. The worker is now threatening to sue us for negligence. Can he do that?

Beware the cat’s paw: How innocent decisions create liability

05/11/2010

It comes as a bolt out of the blue: The Florida Commission on Human Relations notifies you that there’s “reasonable cause” to believe retaliation was the reason a female employee lost out on a promotion to a male co-worker. But it was a clean promotion process! How did this happen? As it turns out, this is the “cat’s paw” doctrine at work.

Vulgar e-mail: React differently if sent from home?

04/01/2010

Q. One of our employees sometimes sends offensive jokes to her fellow employees from her home e-mail account. We’re worried that someone may take offense and sue for racial or other harassment. What can we do if she’s sending this from home?