• The HR Specialist - Print Newsletter
  • HR Specialist: Employment Law
  • The HR LAW Weekly
  • The HR Weekly


Don’t take malingering employee’s bait: Calling in sick shouldn’t trigger FMLA query


Some employees believe all they have to do to invoke FMLA leave protection is call in sick and wait for their employer to request medical certification. Wrong! Merely calling in sick doesn’t trigger any employer obligations under the FMLA.

Beware ‘aggravated misconduct’ firings–unemployment benefits hang in the balance

Employees who commit “aggravated misconduct” and are terminated may not be eligible for unemployment compensation benefits. Therefore, some employers may assume that when an employee is arrested and charged with a felony related to work, it makes sense to fire the employee. Not necessarily.

Warn managers: Angry statements could cause defamation, slander lawsuits

When training managers and supervisors on how to treat subordinates, make sure they understand they should never make any belligerent statements that could be interpreted as defamation or slander.

Court won’t second-guess good-faith firing decisions

Don’t agonize over terminating an employee for misconduct. You can be wrong about the underlying facts as long as you acted in good faith when making the firing decision.

Warn bosses: No disparaging military service

If a member of the National Guard or reserves is terminated, he or she can use the statement to show that military service was a motivating factor in that termination. That’s all that’s required under USERRA.

Beware defamation claims based on discipline write-ups


Remind supervisors and managers to stick with verifiable and documented facts when writing up an employee for poor performance, a mistake or other disciplinary matter. That’s because a false write-up could be grounds for a later defamation lawsuit.

Use objective measures to make firing decisions

If you terminate subpar workers, it goes without saying that you must be prepared to show they were, in fact, poor performers. Do so by using objective performance measures. Let the facts and figures speak for themselves.

Employee refuses to follow instructions? Courts won’t second-guess disciplinary decisions

Courts don’t want to second-guess every employment decision. They leave it up to employers to determine, for example, whether one rule violation is more serious than another. As the following case shows, employers are free to terminate employees who won’t listen.

Fort Worth lumber yard hammered for age bias

The former general manager of Foxworth-Galbraith Lumber in Fort Worth is suing the company for age discrimination, claiming he was fired at the age of 55 and replaced by a 38-year-old man.

Documented insubordination can often sink employee’s discrimination lawsuit


Employees who sue for discrimination have to prove they are members of a protected class, were qualified for the position they held, were terminated or subjected to another adverse action and were treated less favorably than employees outside their protected class. Employers that can show the em­­ployee was insubordinate can quickly win such cases.