Quirky Questions

Real Life Employment Law

Restrictive Covenants; Interference with Contract: Quirky Question # 11

Quirky Question # 11:

Our firm uses non-competition agreements for a number of our key employees.  The non-competition agreement was drafted by our outside counsel who tells us that it is enforceable.  One of our managers who had signed such an agreement recently resigned.  We just learned that she will be starting employment at our primary competitor, in a role nearly identical to that which she performed for our company.  If I contact her new employer to inform it of our manager’s non-compete, and her new employer withdrew her job offer, could she sue us for interfering with her prospective employment relationship? 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→

Employee Cooperation in Investigations, Quirky Question # 9

Quirky Question # 9:

Two of our employees are involved in a romantic relationship.  We recently learned that our male employee assaulted our female employee at her apartment.  He was charged with domestic assault based on her report and convicted.

We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers.  She refused to answer our questions, claiming they invaded her privacy.  We do have a policy that requires cooperation with our investigations.  What options do we have?  Can we fire her for refusing to assist in our investigation? Answer→

Drug Testing Drivers, Quirky Question # 8

Quirky Question # 8:

We provide a number of our sales employees with company automobiles.  We were wondering whether we could randomly test these individuals for alcohol or drug use.  Needless to point out, we would like to ensure that employees driving our company vehicles do not endanger either themselves or members of the public. 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→

Performance Evaluation, Quirky Question # 6

Quirky Question # 6:

Our company operates a call center.  One of our supervisors (Employee X) demonstrated two significant performance problems.  First, he was verbally abusive to the employees he supervised.  Second, he appeared to have a disproportionate number of “dropped” calls.  Our suspicion is that he put the callers on “hold,” and left them on “hold” until they hung up and called back, at which point the calls would roll over to someone else.  Since he was a long-term employee, we did not fire him.  Instead, we provided him a probationary letter, demoted him, and increased our supervision of his performance.  In the two months since we made these changes, he has performed quite well.  Coincidentally, at the end of the two-month period, X’s annual performance evaluation occurred.

The person responsible for X’s review is one of his close friends, both at work and outside the workplace .  He based his review of X’s performance on the last 60 days, which he justified to us as designed to “encourage” rather than “discourage” X.  The review was very positive and ignored the problems that were exhibited through the vast majority of the review period (10 months of the year).  The manager provided the review to X and had him sign it.  When the manager who conducted the review asked his own supervisor to sign off on the review document, the crap hit the fan.

The senior manager insisted that we re-write the review, which we have done.  The review now reflects the full year’s performance, including the serious problems that were identified before X was placed on probation and demoted.  We provided the new review to X, informing him that the earlier document was not reflective of his entire year and would not be placed in his personnel file.  I have the original review (there are no copies).  Now, X is telling me he wants a copy of this review as it is his “legal right” since he signed it.  Do I have to give him a copy of the first review? Answer→

Sexual Harassment (Round 2), Quirky Question # 5

Quirky Question # 5:

I read your Quirky Question # 4.  Unlike your last reader, I am not in our company’s Human Resources Department.  But I am the attorney within our Office of the General Counsel with responsibility for addressing employment issues.

One of our HR representatives informed me that she had received a sexual harassment complaint by one of our employees.  The complaint involved conduct by one of our company’s executives.  Although the employee was apprehensive about making a complaint against this individual due to his stature within the company, she did so.

Unlike the fact pattern of your last Quirky Question, although the employee was uneasy about the company initiating an investigation, she did not advise our HR representative that she would address the problem herself.  Rather, she clearly wanted HR to help and it did.  The company conducted an investigation, which corroborated many of the employee’s complaints (dimwitted comments relating to sex, affectionate physical gestures, discussion of marital problems, odd interaction at after-work gatherings at a local watering hole, etc.).  We took appropriate disciplinary steps to stop the behaviors that were troubling our employee, not to mention inconsistent with our Company’s harassment policy.

Lately, I have noticed that the complaining employee seems to be spending a lot of time with the Executive about whom she complained.  She seems to be interacting frequently with him, both at work and, as far as I can tell, after work.  I’m not sure what HR should do, what I should do, or whether the company needs to do anything at all.  Got any advice? Answer→

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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