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Consider the following scenario:

Wynona Whiner is hired as a file clerk for a local law firm. Wynona gets a paper cut on her second day at work and files a workers’ compensation claim. Wynona’s doctor takes her off work for three days after the cut becomes infected over the weekend. On Monday, Wynona presents the law firm with the doctor’s note stating that she can return to work on Tuesday. However, Wynona does not return to work until the following Monday. When she returns to work, the law firm terminates Wynona under the firm’s no call, no show policy.

Which of the following statements is correct?

A.  Wynona may not bring a retaliation claim if her workers’ compensation claim is denied.

B.  Wynona may not bring a claim for retaliation because she was fired during her 90-day probationary period.

C.  Wynona will prevail on a claim for retaliation because she was fired within three months of filing a workers’ compensation claim.

D.  Wynona may have a claim for retaliation if the no call, no show policy has only been enforced against employees who have filed workers’ compensation claims.

Continue Reading Employment Law IQ: Workers’ Compensation Claims and Retaliation – What Would You Do?

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Consider the following hypothetical:

Scenario: Amy is a receptionist for Judgment Day Church. The Church fires Amy after it learns that she had an elective abortion. The termination notice states that Amy is being terminated for violating a pledge she signed at the time she was hired stating she would not engage in immoral conduct that is contrary to Church teachings.

Which of the following statements is correct?

A.  Amy may have a claim against the Church for invasion of her Constitutional right to privacy.

B.  Amy may have a claim against the Church for pregnancy discrimination.

C.  Amy does not have a claim against the Church for discrimination because Church employees are exempt from discrimination claims under the Ministerial Exception created by the Free Exercise Clause of the First Amendment.

D.  Amy does not have a claim against the Church because the alleged misconduct occurred outside regular working hours.

Continue Reading Employment Law IQ: Can a Church Employee be Fired for Having an Abortion?

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Continuing in our series of Employment Law IQ, what would you do?

Scenario:  Valerie recently graduated from FGCU and got her first job, a position as HR Director for Hire You Too, a local, non-union staffing agency. Though Hire You Too has been in business for a number of years, Valerie is the company’s first dedicated HR employee. Eager to establish herself as an important member of the Hire You Too team, the first thing Valerie does is review Hire You Too’s Employee Handbook. While most of the Handbook looks good, Valerie wants to revise the Acknowledgement, because she remembers from her “Labor 101 Class” that the NLRB has cracked down on at will employment disclaimers.

Which of the following statements should Valerie avoid for the Acknowledgement?

A. I further agree that the at will employment relationship cannot be amended, modified, or altered in any way.

B. The relationship between you and Hire You Too is employment at will. This means that your employment can be terminated at any time for any reason, with or without cause, by you or Hire You Too.

C. Employment with Hire You Too is employment at will. Only the CEO of Hire You Too has the authority to alter the at will employment relationship, and then only in writing.

D. Valerie can choose any one of the three, since Hire You Too is a non-union workplace and does not have to worry about the NLRA.

Continue Reading Employment Law IQ: At Will Employment Disclaimers – A Violation of NLRB?

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Final preparations are under way for our biggest event of the year — the HR Law & Solutions seminar, which will be held this year on April 1 at the Sanibel Harbour Resort. This year, we are excited to welcome back Paul Macleish as our keynote speaker. Paul will be a familiar face for those of you who attended HR Law & Solutions in 2011 — remember the guy dressed in a kilt, carrying bagpipes (no, not David Roos — that was a different costume!)?  That’s Paul!

This year, Paul will present “The ‘Braveheart’ Approach to Leadership.” Using the factual history from the story of William Wallace and the Independence of Scotland, immortalized in the movie Braveheart, Paul will take examples from actual events and tie them in to leadership in the modern corporate world. Paul’s recent blog post, Braveheart Leadership, will give you a glimpse of his presentation.

Paul is originally from the Scottish Border and began his career in the United Kingdom working for Stakis Casinos and Hotels in London. He then moved to the U.S. in 1989 and began working for the Walt Disney World Resort in Florida. Paul was a leadership consultant at the Disney University and later became a business program facilitator and designer at the Disney Institute. He received the “Partners in Excellence Award” for exceeding excellence in leadership, people management and service. After 6 years with the Disney Institute facilitating customer service, human resources and leadership programs, Paul left Disney and began incorporating the Disney methods and strategies into helping organizations worldwide.

Continuing Education

The seminar has been approved for 5.75 (HR (General)) recertification hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. Florida Bar CLE approval is pending.

We hope you can join us on April 1st.  For more information on the seminar and to register online, click here.

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Employee handbooks…every employer should have one, but does yours include policies that are unlawful? Test your employment law IQ and let us know what would you do.

Scenario: Dickie V., the HR Director for Bracketology Secrets, Inc., has asked Bracketology’s employment law counsel, Billy B. Ball, to review Bracketology’s Employee Handbook, which was last revised in 2007. Since then, Bracketology has grown to25 employees, all located at one central location. When Dickie V. receives Ball’s written analysis of Bracketology’s Employee Handbook, he is shocked to see so many suggested revisions.

Which of the following policies do you think Billy B. Ball left unrevised?

A.  Bracketology Secrets, Inc. compensates its employees on a merit-based system. To avoid creating hostility or other issues in the workplace, Bracketology employees are not permitted to discuss their individual compensation packages with other Bracketology employees.

B.  Employee personnel files are property of Bracketology Secrets, Inc., and will not be released to any employee or third party without a subpoena or similar court order.

C.  Bracketology Secrets, Inc. desires to keep all of its employees, customers, vendors, and the general public safe on its premises. As such, any employee who brings a weapon to Bracketology premises, whether on their person, in a bag, or in a vehicle, may be subject to immediate termination.

D.  All three policies are acceptable as written.

Continue Reading Employment Law IQ: Outdated and Unlawful Policies in Employee Handbooks – What Would You Do?

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Continuing in our series to test your employment law IQ, this week we will focus on FMLA requests often received in HR offices.

Scenario: Henry Fixit worked as a maintenance man for Sleep Inn for almost 20 years. Sleep Inn has 105 employees. As part of Fixit’s regular duties, he was constantly climbing ladders, lifting heavy equipment, and performing other physical labor. Fixit recently suffered a non work-related injury that required surgery. He requested FMLA leave, which Sleep Inn approved. After two months, Fixit gave Sleep Inn’s HR Director a doctor’s note, stating that Fixit was able to return to work, but with certain lifting and bending instructions. When Sleep Inn refused to create a light duty position for Fixit, Fixit sued for FMLA interference.

Which of the following statements is correct?

A.  Sleep Inn interfered with Fixit’s FMLA entitlement when it refused to offer him a light duty position.

B.  Sleep Inn is not liable for FMLA interference, but it would be liable under workers’ compensation laws for its failure to create a light duty position.

C.  Sleep Inn is not required to create a light duty position for Fixit.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Interference – What Would You Do?

We are excited to announce that registration for the 2014 HR Law & Solutions seminar is now open!  The seminar is set for Tuesday, April 1, 2014, at the Sanibel Harbour Marriott Resort & Spa in Fort Myers, Florida. This year’s line-up of topics and speakers include:

  • Employment Law and Legislation Update, presented by Robert Shearman, Esq. and John Agnew, Esq.
  • Bullies in the Workplace, presented by John Potanovic, Jr., Esq.
  • Are You Audit-Proof, with panelists Suzanne Boy, Esq., David Roos, Esq., Michael McCabe, Esq., Tulio Suarez, Esq., and moderated by John Potanovic, Jr. Esq.
  • The ‘Braveheart’ Approach to Leadership, presented by Guest Speaker Paul Macleish
  • Employment Law IQ:  Test Your Knowledge and Issue Spotting Abilities, presented by Suzanne Boy, Esq. and Vicki Sproat, Esq.

Click here for more information on the program and to register. If you would like to make group reservations, please feel free to contact me directly at gail.lamarche@henlaw.com or via phone at 239-344-1186.

We want to thank our lunch sponsor, Lykes Insurance, as well as the local SHRM chapters for their in-kind partnership, HRMA of Southwest Florida, HR Collier and Charlotte County SHRM.

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Happy 2014! Can you believe it is another new year? Time flies!

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Extension or Termination – What Would You Do?

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Travel time is one of the most hotly contested issues under the FLSA. This week we will test your employment IQ on compensable travel time.

Scenario. Timmy Tee is employed as a non-exempt public relations coordinator for Go Gators Enterprises. Timmy’s regular work schedule is 8:00 a.m. to 5:00 p.m., Monday through Friday. Go Gators Enterprises requires Timmy to attend a two-day marketing conference in Atlanta, Georgia. Timmy travels by bus on Wednesday, from 10:00 a.m. to 4:00 p.m. Timmy returns home by bus on Saturday, traveling from 2:00 p.m. to 8:00 p.m.

Which of the following statements is correct?

A.  Go Gators Enterprises must pay for all of Timmy’s travel time, since it required him to attend the marketing conference.

B.  Go Gators Enterprises must pay for the Wednesday bus trip, since these hours cut across Timmy’s normal work hours.

C.  Go Gators Enterprises must pay for the Saturday travel between 2:00 and 5:00 p.m., the travel time which cuts across Timmy’s normal work hours.  This is required even though Timmy does not normally work on Saturdays.

D.  Both B and C are correct.

Continue Reading When Is Travel Time Compensable?

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Continuing our Employment Law IQ series, today we focus on Anxious Annie. Anxious Annie works as a receptionist for P U Waste Disposal. She is a decent employee, but seems to have trouble coming to work on time, and often calls in “sick” on Mondays and Fridays. When Annie is written up for absenteeism, Annie tells her supervisor she needs a leave of absence to deal with panic attacks. Annie’s supervisor reports the request to P U’s HR Director, but laughs it off and says the request “smells funny.” P U has more than 15 employees.

Which of the following statements is correct?

A.  Because Annie’s disability is not obvious, P U is entitled to receive “reasonable documentation” about the disability and its functional limitations.

B.  Because Annie’s disability is not obvious, P U can ask to see Annie’s medical records.

C.  Because Annie’s disability is not obvious, P U can ask about the nature of the disability and its functional limitations.

D.  Both A and C are correct.

Continue Reading Employment Law IQ: Absenteeism and Questionable Leave Requests