Human Resource Blog

No, you cannot refuse to hire or transfer an employee because she is entitled to FMLA. Doing so is illegal discrimination based on a disability or perceived disability.

Under ADA, an employer is not required to make an accommodation if it is an undue hardship. There is no undue hardship exclusion under FMLA. The employees must be given time off, even if it is an undue hardship for the employer. In addition, taking any negative action against an employee or applicant because they are on FMLA or might be entitled to FMLA is illegal.

As an employer, it is your responsibility to hire enough people so that employees can take FMLA without a negative impact on shift performance. In this case, it may mean hiring one additional full-time or part-time employee to cover FMLA shifts.

Ideally, yes, you would keep these applications, either as a hard copy or in a digital format, for 3 -7 years. If you are sued for illegal discrimination in hiring, you will need to prove that you interviewed and hired the most qualified candidates. You cannot do that, if you do not have the applications from less-qualified candidates.

The best bet would be to save these email applications digitally, perhaps on a back-up hard drive, a CD or a DVD.

First, lets clarify our terms. A part-time employee is one who works fewer hours per week, often less than 30 hours per week. The part-time employee can be permanent, and work this schedule for years.

A temporary employee is one whose job is expected to last only for a short time, such as 3 months or 9 months. A temporary employee can work 40 hours per week.

In most states you must report new hires, and you identify them as part-time or temporary employees at that point. Temporary employees are not eligible for unemployment when the project ends (but it would be illegal for you to inaccurately claim all your workers were temporary, just to avoid unemployment taxes.)

Hiring only part-time employees allows for more flexiblity in scheduling. It also saves on certain voluntary benefits, although you are not obligated to offer benefits at all.

However, hiring only part-time employees means that you have to interview, hire and train more workers. It may also result in higher turnover and less employee loyalty.

We are going to assume that you have 15 or more workers and that the 67 year old former employee is better qualified than other applicants. (If not, hire a better qualified applicant — problem solved.)

This is exactly the situation that a pre-employment physical exam was designed for. In your situation, an employee who is not healthy enough to operate the machines could sustain a life-threatening injury, and perhaps even injure other people. So the employees physical ability to perform the job is a bona fide job qualification. However, you are not a medical professional and not qualified to make that determination.

The wife is disclosing far too much protected medical information about her husband and you should tell her to stop. You can also legitimately tell her that she needs to stop asking when her husband will be recalled from layoff. This is not appropriate work conduct. Tell her that the inappropriate information and nagging are making you predisposed to not rehire her husband.

Under ADA, the Americans with Disabilities Act, it is illegal to discriminate in hiring against an employee with a disability, and Congestive Heart Failure requiring a pacemaker may very well be a disability. (We are not concerned about Pneumonia. A person can recover fully from nearly fatal Pneumonia.) The second problem is that it is also illegal to discriminate in hiring against an applicant with a perceived disability. In other words, if you refuse to hire this employee because of his Heart Failure or because you believe that he physically cannot do the job, that is illegal discrimination based on a perceived disability.

The solution is for you to pay a professional to determine if this employee can physically do the job or not. Provide the doctor of your choice with a detailed list of the physical rigors of the job, and let the doctor make the decision.

You should also require a fitness-for-duty release from the employee who passed out on the job before he returns to work. You may also want to require an exam by a doctor of your choice, to determine if he can safely do the job, given his collapse at work. There is a fine line with this employee. You are required to make reasonable accommodations for this employee, but if he is seriously or fatally injured at work, you will be liable.

The previous owners comments certainly sound like racism, dont they? Imagine how you would feel if someone told a business owner not to hire anybody from Chinatown. It is hard to believe that every person in the entire area is dishonest. The majority of citizens in any neighborhood are decent, hard-working people. The problem is that when crime is high, the good people start hiding.

Nevertheless, it is completely legal for a business owner to show preference in hiring for members of his own family, including cousins. Many, many small business owners do so.

If you started hiring people who are not related to you, and you hired only Asian employees, that would be illegal discrimination under federal law. (Many states also outlaw discrimination based on race, color, sex, national ancestry, etc.)

Like every employer you should retain all the applications that you receive, but as long as you are only hiring family members you are okay from a legal standpoint.

Theoretically it would be legal to hire only applicants from a certain geographical area, but when that excludes all the members of one race, that becomes illegal discrimination.

However, we think it is a better idea to establish good relations with the community. An Asian business owner who hires only Asians in a non-Asian neighborhood is guaranteed to be resented. Business owners who are resented often find themselves the target of shoplifting and even robbery. (We assume you take all the usual precautions with cameras, inventory control, etc.)

You may be surprised to learn that we agree with the idea of not hiring any students from the local college if you sell alcohol. Even if the student is over 21, he or she will have many underage friends. The peer pressure to sell alcohol to them will simply be too great.

You might try this: next time you have an opening, go to a local church (or other place of worship) and introduce yourself to the minister. Explain that you want to be a good member of the business community and are looking for an honest, hardworking person who genuinely needs a job. Ask him to recommend someone, preferably someone over 25. (You may have to tell a white lie and say your insurance will not allow you to hire anyone with a criminal record.)

If the minister recommends someone, the entire church will have a vested interest in seeing that he does well, and they will see your business in a more positive light.