Category Archives: Family and Medical Leave Act (FMLA)

Faking Illness to Avoid Shift, Quirky Question # 47

Quirky Question # 47:

Our company uses rotating shifts, one of which starts at 11:00 p.m. and continues through 7:00 a.m.  Every employee is asked to work that shift, one day, every other week.  Every time a particular employee is asked to work that shift, she takes a day of FMLA leave, claiming that she has migraine headaches.  She jokes with her co-workers that she is going to get a migraine each time she is assigned to that shift, and no show up for work.  How should be respond? Answer→

Working Another Job While Taking “Leave,” Quirky Question # 40

Quirky Question # 40:

We have an employee who is claiming she has a serious health condition as a result of work-related stress and has given us a note from a nurse practitioner saying she should be off work for a month.  We don’t believe she has a serious medical condition, in part because we’ve heard that she is working part-time in a similar job.  She has refused to return to work.  Can we simply terminate her employment?

[Quirky Question # 40 is another one of our California Questions. As such, I have requested one of my California colleagues to provide the analysis. The analysis below was written by Karen Wentzel of our Palo Alto office. As I’ve described previously, Karen is a Stanford Law School grad, who has been practicing employment law for more than 20 years. Karen’s biography can be found at www.dorsey.com. Her email address is: wentzel.karen@dorsey.com. If you have any particularly unusual questions pertaining to California law, you can send them either to Karen or me.] Answer→

Employer Notice of Mental Disability, Quirky Question # 10

Quirky Question # 10:

Not long ago, a stray dog wandered into our warehouse.  It did not hurt anyone but it apparently frightened one of our employees.  In the days and weeks after the incident, our employee began behaving more and more bizarrely.  She yelled at her supervisors and co-employees.  In a conversation with our company’s President, she began yelling at him about the “f***ing dog.”  During this time, she also missed a fair amount of work.  Sometimes she would show up and then leave soon thereafter.  On other days, she simply did not show up.  One day, she called the police to complain of harassment because her supervisor had moved her belongings into a nearby office.  After she had used up her paid leave, we notified her how to apply for FMLA leave.  She never did so and not long thereafter, we discharged her.  She now has sued our firm for violating the FMLA.  Did we do something wrong? How can she sue us for an FMLA violation if she never notified us that she needed to take FMLA leave? Answer→

FMLA Leave, Quirky Question # 7

Quirky Question # 7:

Several years ago we employed an individual at our auto dealership.  He resigned voluntarily.  About eight months ago, we rehired him.  During the course of the last eight months, he has worked more than 1250 hours.  He recently injured his back at home and has missed 13 days of work.  Because we cannot afford to have an employee miss that much time, we fired him.

He’s now claiming that we violated the Family and Medical Leave Act (FMLA) and is threatening a lawsuit.  We realize that he has met the 1250 hours requirement under the FMLA but he did not work for us for 12 months, another FMLA requirement.  Should we tell him to pound sand, and then lawyer-up in case he sues?  Will our lawyers be able to obtain sanctions if he pursues this bogus claim? Answer→