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Employment Law

Break the FMLA shield: Document when you began considering discipline

An employee may think taking FMLA leave will prevent serious discipline such as being terminated. That strategy won’t work if you can show the disciplinary process had already begun before she asked for FMLA leave.

Don’t let disability stop legitimate discipline

It’s reasonable to worry that disciplining an employee who is disabled might trigger a lawsuit. Don’t let those kinds of concerns dissuade you from otherwise legitimate discipline. Courts general allow employers great leeway to punish employees who seem to genuinely deserve it.

Prepare to show you impose discipline equally

Would you be able to persuade a judge that every employee you have recently disciplined was treated the same as every other employee you have previously punished for the same infraction? It’s essential.

Beware close timing between discipline and employee’s request to take FMLA leave

If you intend to discipline someone who is on or is about to go on FMLA leave, be sure everything about the disciplinary process looks legitimate and fair.

Prepare to show you would have disciplined even if employee wasn’t a whistleblower

Sometimes, an employee may decide to take revenge if she perceives she has been unfairly disciplined. If she does so by becoming a whistleblower, she may believe that protects her from eventual termination. That’s not true if the employer can persuade a court it would have disciplined or fired her whether she reported alleged wrongdoing or not.

‘Fair reading’ of FLSA exemptions gets a test drive

In 2018, the U.S. Supreme Court ruled in Encino Motors v. Navarro that exemptions to the Fair Labor Standards Act should be given a “fair reading,” instead of a narrow construction. Two federal appellate court decisions have put their stamp on just what counts as a fair reading.

Wage lawsuits fall, but still near historical highs

In 2018, U.S. employees filed 7,494 lawsuits in federal courts relating to wage-and-hour issues. That’s down a bit from the previous year, but still running at historically high levels.

A kiss to get your paycheck? Prepare to pay much more

The owner of an Illinois pharmacy is facing a lawsuit that claims her employees “had to line up and kiss her on the mouth as a prerequisite to receive their paychecks.”

Real communication problem … or ethnic bias?

It’s essential to guard against even the appearance of bias during every step of the hiring process.

Blocked by senator, Feldblum won’t seek another EEOC term

Former EEOC Commissioner Chai Feldblum announced Jan. 14 she will drop her bid to serve another term after Sen. Mike Lee (R.–Utah) blocked her nomination.