Quirky Questions

Real Life Employment Law

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→

Sexual Harassment, Quirky Question # 4

Quirky Question # 4:

I am an HR Representative.  One of my duties is to take complaints regarding workplace discrimination, including sexual harassment. One of our female employees recently complained to me that she feels as though she is being sexually harassed by one of our top salesmen.  (He is not her supervisor, but she does work on the team that supports sales after they have been made, so he could provide some feedback to her superiors on her performance.)

When she told me about the situation, she was somewhat vague.  She also informed me that she will “handle it,” and does not want me to take any action on her behalf.  She says that she simply wanted me to know “what’s going on.”

I’ve honored her request that have not done anything in the several weeks since she made her report.  I’d like to know what’s really “going on” but I’m trying not to intrude.  Do you have any guidance for me? Answer→

Employee Injury, Quirky Question # 3

Quirky Question # 3:

I was called out to our company’s parking lot (we run a manufacturing facility) during a break because of a report that an employee had been injured and was bleeding outside our building.  Upon my arrival, I learned that the injured employee had created a homemade “shooting device” from a pipe, firecrackers, and ball bearings.  He was planning to show off the device to co-workers by doing some “target practice” during his break.  Unfortunately, he had the device turned backwards and he shot himself in the stomach.

How should our company respond to this situation?  What are our primary risks? Answer→

Donating Sick Leave, Quirky Question #2

Quirky Question # 2:

One of our employees is quite ill, with a very serious illness.  She has used up all of her sick time.  She is well liked and several of her co-workers want to donate all of their sick time to her.  Are there any downsides to allowing these employees to donate their sick time?  Are there any downsides to disallowing these sick time donations? 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.