Quirky Questions

Real Life Employment Law

Quirky Question #261, When will our employee return?

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Question:

We’re a large company with offices in many locations, including in California, Minnesota, Washington and New York City.  We often have disabled employees provide doctors’ notes that say they are unable to work, but that do not provide an expected date the employee will be cleared medically to return.  When we ask these individuals for a return date, they usually say they don’t know or that their doctor told them they need to be off work for “as long as necessary.”  We have no idea whether this means one week or one year.  Do we have to grant employees leave if there is no end in sight?  It makes planning on our end very difficult.

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Quirky Question #259, The FMLA and the ADA: Joined at the Hip

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Question:

I work in my company’s HR department and we just had an employee ask for additional time off, even though we’ve already given the employee a bunch of time off we are required to under the FMLA.  I wanted to say no but my co-worker here in HR says I have to grant the extra time off.  Who is right?

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Quirky Question #258, Ex Pat Trailing Partners

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Question:

Fred, one of our technical IT specialists, just told us that his partner volunteered for a European assignment.   Fred’s a great guy and we need him but he earns less than his partner and wants the experience of working abroad.   If we don’t help him, Fred will probably look for overseas work with a competitor and he’s sure to get it.    Is there any reason why we shouldn’t say yes and keep Fred on our team?  Is Fred worth it? Answer→

NLRB Published Report Concerning Employee Handbook Rules and Policies

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On March 18, 2015, NLRB General Counsel Richard Griffin published a Report concerning recent case developments arising in the context of employee handbook rules and policies. The thirty-page Report concludes that many commonly-used policies, if not phrased carefully, may have a chilling effect on Section 7 rights to engage in concerted activity. The policies critiqued by  General Counsel Griffin include, among others, confidentiality policies, employee conduct policies, media policies, trademark and copyright use policies, and conflict of interest policies. The Report’s broad interpretation of potential “reasonable” understandings of handbook provisions concludes that policies such as “be respectful of others and the Company” violate the NLRA. Given the NLRB’s increased focus on handbook policies and this Report’s conclusions regarding a number of frequently utilized policies, employers – even those with employees not represented by labor unions – should carefully review their handbooks to avoid NLRB scrutiny.

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Supreme Court decides Young v. United Parcel Service, Inc., 575 U.S. ___ (2015)

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The Supreme Court of the United States recently issued its decision in Young v. United Parcel Service, Inc.  Vacating and remanding the Fourth Circuit’s decision, the Court concluded that the Pregnancy Discrimination Act (“PDA”) “requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work” and that there was a genuine dispute regarding “whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.”  Young v. United Parcel Service, Inc., 575 U.S. ___ (2015).

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Quirky Question #257, Food for thought – whistleblowing claims against agricultural companies

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Question:

My company manufactures food products and is thus regulated by the Food and Drug Administration (FDA).  Last month, we terminated an employee because of his chronic poor performance. I just learned that the day before he was terminated, the employee told his supervisor that he believed our company was not complying with the FDA’s nutrition label requirements. Are we at risk that he will bring a whistleblower claim?

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A New Question Every Week

Nearly every day, executives and managers, and the in-house counsel and Human Resources professionals who work with them, are confronted with unanticipated questions regarding the workforce. Just when they think they have "seen it all," along comes a new and often stranger scenario involving an odd twist to an area they thought they fully understood. These individuals often find themselves back at square one when trying to construct an appropriate response and devise a creative solution to the problem presented. Sometimes these "Quirky Questions" can be resolved easily; other times, they implicate practical and legal issues that are not immediately apparent. This Quirky Questions blog addresses these unanticipated employment questions.

We encourage you to submit your thoughts and reactions to the questions presented. We also encourage you to submit questions that you would like to see addressed, subject to these guidelines.

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