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Disciplinary Action & the FMLA

We have an employee that is having performance issues (quality and quantity). Her supervisor has been going through the progressive disciplinary process with her. Prior to her final warning the employee contacted me for assistance. She told me she is so stressed out, has problems with migraines that affect her ability to perform, suffers from anxiety, is worried about her sick family members, etc. I suggested she contact our EAP and sent her FMLA/STD paperwork. She did not get it done on time so I sent her the follow-up FMLA paperwork and gave her the additional 7 days. She states she has the FMLA paperwork and her doctor will be sending it to me today. Meanwhile, she is now at the final step of discipline… termination due to performance. Do I terminate her despite her request for FMLA? Or do I have to give her FMLA leave and terminate her when she returns? Or do we have to give her additional time to improve her performance once she returns from leave?

The federal Family & Medical Leave Act (FMLA) provides qualified employees of covered employers the right to take up to 12 weeks of leave for certain medical and family reasons. Employers may not take adverse action against an employee for requesting or taking leave under the FMLA. Nor may an employer interfere with an employee’s right to take FMLA leave.

An employee who has requested FMLA leave may still be terminated due to poor performance. However, to avoid a discrimination, interference or retaliation claim, it’s best to have clear evidence that the employee would’ve been terminated regardless if she applied for leave.

It sounds like you’ve followed your established disciplinary process; but, what was the situation that made you decide that termination was warranted? Was there a specific incident that occurred? If so, would any other employee in a similar situation be terminated for the same incident? Basically, you need to be able to provide solid evidence to support the reason for the termination essentially proving that the termination had absolutely nothing to do with the employee requesting leave.

Usually, terminating an employee for performance issues only after she’s applied for leave would constitute retaliation. Reason being, the employer was aware of the employee’s performance issues but never addressed them until the employee applied for leave. This doesn’t sound like the case in this situation. Still, it’s important to ensure your progressive disciplinary process has been followed and documented, and that the final situation truly warrants termination.

If your evidence is questionable then it’s best to proceed as normal with the employee’s request for leave. Assuming no other significant performance issues arise prior to the employee taking leave and the employee’s situation qualifies for FMLA leave, then she should be given her full FMLA entitlement. Don’t be ready to terminate the employee upon her return. She should be reinstated to her position as required under law and given the same opportunities as she would’ve received if she didn’t take leave. This may mean giving her some time to demonstrate her performance abilities.


May 25th, 2017, 1:45 PM |  Posted in: Labor Laws, Termination |
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Negative vacation balance

What is California law about negative vacation balance? Are employers allowed to recoup from final check?

Under California law vacation benefits are a form of wages. Allowing employees to take their vacation time prior to actually earning it is considered an advance on wages. Thus, if an employee takes an advance on his vacation time and then separates from the employer before the time has been earned or accrued, it’s considered to be an overpayment of wages. And, under California law, an overpayment of wages cannot be recouped from an employee’s due wages. Deductions from an employee’s final paycheck for debts owed to the employer are strictly prohibited.

May 20th, 2017, 7:12 PM |  Posted in: Benefits, Compensation |
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Call In Rules

I understand that you can schedule call in shifts to employees. My question is that is there a rule on making the EMPLOYEE call in at a scheduled time for the call in shift to be told they need to come to work or be dismissed. Or does the EMPLOYER have to call in the employee at the set time to tell them to work or be dismissed? And if so, I understand that you don’t have to pay the employee unless they have to work, but if they are at a movie or something and have to call in during the movie, but not needed to come in, do they have to be compensated for the call in since they are told to call in on day off instead of being called by the employer?

There is no federal mandate that requires either the employer or the employee be the one to call for a call in shift. This is completely at the discretion of the employer and common practice varies based on the industry.

Compensation guidelines are established by the federal Fair Labor Standards Act (FLSA). Under the FLSA, non-exempt employees must be paid for any time they’re suffered or permitted to work.

An employee who is required to remain on call on the employer’s premises is clearly suffered to work and must be compensated. However, an employee who is required to remain on call while at home and has the freedom to conduct personal matters is not considered to be working and need not be compensated (in most cases).

Asking an employee to call at a specified time for the call in shift is not considered working time and compensation is not required for the time spent making the phone call. The time spent making the phone call is nominal.


Water Responsibility

On a construction site is the general contractor with only site supervision responsible for providing water for the entire project or is each sub contractor responsible for their own water source ?

The federal Occupational Safety and Health Administration (OSHA) ensures safe and healthful working conditions in the workplace through training and regulations.

OSHA requires potable water to be provided in all places of employment in amounts that are adequate to meet the health and personal needs of each employee. Potable water means water that is safe from toxins and meets the standard for drinking purposes set forth by state and/or municipality regulations.

Under OSHA’s Safety and Health Regulations for Construction, the prime contractor assumes the responsibility for complying with OSHA statutes. But, the prime contractor and any sub contractors may make arrangements to ensure OSHA obligations are met on the job site. If this occurs, ensuring compliance is a joint responsibility.

May 20th, 2017, 6:43 PM |  Posted in: Workplace Health & Safety |
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Terminating Employee on STD

We have 8 employees in the US (in CA, NC, NY) so no FMLA. One of our employees, located in NC is on STD (only for a month), paid by the insurance company according to company policy that was established a month ago for the first time. We would like to dismiss him upon his return, as his role is no longer needed and we are interested in closing the NC office. We will leave 3 employees that will be working from home and start hiring in NY instead. The termination has nothing to do with his STD. Can we terminate his employment when he is back? Thanks!!

Although the employee may have job protection under the company STD and/or personal leave policies, he is not completely exempt from being laid off. This is true even if the employee was on FMLA leave as long as the reason is not related to the leave in any way.

The decision to layoff the employee must be objective and business related. If this employee was the only one being laid off it would be best to have solid criteria validating why this specific employee was selected. But, since the entire office is being closed it’s clear the layoff reason is business related and not because he took leave or has a disability. Remember, it’s the employer’s responsibility to prove that a layoff was nondiscriminatory and that the employee would’ve been laid off whether he was on leave or not.

Some employers prefer to wait until an employee returns from leave before laying them off in an attempt to avoid a discrimination claim. However, doing show doesn’t totally protect the employer. The evidence proving the reason to lay off the employee was truly business related is the best way to avoid and defend against a discrimination claim.

Thus, it’s best to separate the employee once the decision to lay him off has been made. The more time between the two the more likely the validity of the layoff will be questioned.

May 20th, 2017, 6:22 PM |  Posted in: Termination |
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