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Q&A

Is this worker entitled to FMLA leave? She was out for months on workers’ comp

10/04/2011
Q. One of our employees missed several months of work last year because of a workers’ compensation qualifying injury. She has now requested leave under the FMLA. Do we have to grant this request for leave?

Can bonuses affect overtime calculations?

10/04/2011
Q. We wish to offer a variety of incentive bonuses to hourly workers in an attempt to increase business and productivity. Will these bonuses affect the employees’ “regular rate” under the Fair Labor Standards Act FLSA for purposes of calculating overtime?

How can we protect against subsequent lawsuits following on-the-job injuries?

10/04/2011
Q. My company is a nonsubscriber under the Texas Workers’ Compensation Act and has its own on-the-job employee injury benefit plan. Is there any way to increase the likelihood that employees who receive benefits under the plan will not be able to later sue us to recover damages related to their injuries?

What are the rules on setting a late policy?

10/03/2011
Q, We would like to institute a rule subjecting em­­ployees to discipline for clocking in late. Are we permitted to do this even though we round our employees’ time to the nearest quarter-hour?

Can fired poor performer receive unemployment benefits?

10/03/2011
Q. One of our employee’s job performance no longer meets our standards. While she used to be a good worker, she’s now making a lot of errors, coming in late from time to time and not getting along with her co-workers … If we fire her for poor performance—which we would consider termination for cause—will she be eligible to collect unemployment compensation?

Can worker use iPhone to secretly record review?

10/03/2011
Q. One of our employees secretly did an audio recording of his performance review meeting with his iPhone. Is that legal?

Can we really not fire an employee who has been called to jury duty?

09/28/2011
Q. We are a very small company and can’t afford to have an employee on extended leave. Can we legally terminate an employee who is called to jury duty and assigned to a lengthy trial?

What should we do? It looks like employee used FMLA leave for elective surgery

09/28/2011
Q. An employee told her supervisor that she needed surgery. We approved time off under the FMLA with the understanding that she would provide certification after the leave began. We later discovered that this “necessary” procedure was liposuction. Can we revoke approval of medical leave under the FMLA and convert sick hours she used to vacation hours instead? Can we fire her based on inappropriate use of the FMLA?

What can we do about an employee who racked up hours of unauthorized overtime?

09/28/2011
Q. We orally warned an employee not to work overtime. Recently, he claimed to have worked 56 hours straight, eating and sleeping only on regular break times. The timecards say he was here, but we don’t have any night staff, so we can’t verify if he was actually at work. Is there anything we can do?

What’s the NLRB’s real stance on employees’ social media criticism of employers?

09/21/2011
Q. We’ve heard about the National Labor Relations Board’s focus on an employee’s right to post critical work-related comments on Facebook. However, we also heard that the NLRB has started to limit its view on whether such comments are protected concerted activity. What’s going on?