The Employer Handbook Blog

Fact or Fiction: Breaks/lunch taken at work may qualify for FMLA

December 11, 2012 | by Eric B. Meyer

That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

The Family and Medical Leave Act permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances, such as caring for a parent with a serious health condition. Intermittent leave can be days, hours, or even minutes off of work. Indeed, when an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

When employees use minutes of intermittent FMLA, it’s generally in the form of early dismissals or late arrivals to work. But what about FMLA leave during breaks and lunches, when the employee never actually leaves the office? Can that time be used for intermittent FMLA leave?

HO HO NO! Facebook comments get Santa Claus fired…twice!

December 10, 2012 | by Eric B. Meyer

With the National Hockey League season in jeopardy, I imagine that Canadians are a fairly ornery bunch these days.

Even further north, hockey fans too are in turmoil. Reports from the North Pole have Mrs. Claus moping around. Morale amongst Santa’s helpers is at an all-time low, causing toy production to drop 20%. And the elf of the shelf just flipped me the bird.

But it appears that no one is taking it harder than jolly old Saint Nick.

HR testifies that employee firing was FMLA retaliation (you read that right)

December 7, 2012 | by Eric B. Meyer

Better settle the case, right?

Not if you’re Flannery Oaks Guest House. Instead, you move for summary judgment and try to get your former employee’s FMLA retaliation claim dismissed.

Was Andy Reid or Norv Turner calling that play?

How do you think it worked out for ole Flannery Oaks? (Hint: it failed miserably). Find out for sure after the jump…

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HR’S 2012 performance review #nextchat

December 6, 2012 | by Eric B. Meyer

Yesterday, I spent a fun hour hanging out on Twitter with the folks from SHRM’s We Know Next discussing 2012’s HR victories and, then, what lies ahead for you good folks in 2013.

A big thank you to SHRM and to those who were able to join us and participate. ICYMI, after the jump is a full recap of all the action along with the top song on the Billboard pop charts.

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I can’t believe you missed these workplace blockbusters, you guys!

December 5, 2012 | by Eric B. Meyer

Translation: Recent HR / employment law developments that Meyer missed a/k/a Meyer needs to clear out his folder of bookmarked employment-law items to make room for his ~~dork~~ ~~dorkier~~ Fantasy Baseball bookmarks. Pitchers and catchers report in just over two months.

More courts weigh in on social-media discovery issues. “Good news. My doctor says that the itching and redness should subside in a few days.” Recent court decisions (here and here) roadmap how you can access this and other Facebook status updates from your former employee who is now suing you. Have fun with that.

Other social-media-related litigation. A firefighter, allegedly terminated for critical Facebook comments, has settled his wrongful discharge claim (here). Facebook posts doom another employee’s FMLA claims (here). The National Labor Relations Board crapped all over another employer’s social-media policy (here). Choking back laughter (at least that’s how I envision it), a Massachusetts Court denied ~~another~~ (the first ever?) hair salon’s claim that a former stylist’s job posting on Facebook violated a non-solicitation agreement agreement (here).

EEOC: Bar claimed males like their Sunday servers sans embryo

December 4, 2012 | by Eric B. Meyer

*** Googles “sans,” wipes brow while sighing in relief ***

I’m not aware of any studies or surveys that the Sandbar Mexican Grill conducted on this subject. Instead, I imagine something like this:

Sandbar Customer: “Two please.”

Sandbar Manager: “Sure. But before I seat you, do you see that bartender over there? She’s *gasp* pregnant. That’s why we have her behind the bar, instead of in your face distracting you from watching the Arizona Cardinals, losers of eight in a row. Given that it’s Football Sunday, we even raised the bar an extra foot just in case her fetus is sitting high. And, as an extra precaution, we have a curtain between the bar and the employee bathroom so that you won’t have to avert your eyes should nature call. We used to have a bucket behind the bar for her, but our lawyers frowned on that. Really, what am I saying is, should we just fire her? Uh, fellas?!? Come back! I’ll make the other servers pee on sticks. Don’t run away! I assure you, it’s EPT; not that ClearBlue crap! Come one guys! Half-price Vodka/Rock Stars! Fellas!

“Younger people are the future” comment creates age-bias claim

December 3, 2012 | by Eric B. Meyer

Hey Employers!

Want to guarantee yourself a jury trial in an age-discrimination case? Just mention the word “younger” to any employee age forty or above right around the time you fire him.

[Editor’s Note: Calling that employee an “old man,” “old fart,” “pops,” and “grandpa” will also do the trick — except, of course, in Texas]

Boy meets girl, dates girl, breaks up, calls girl “whore,” gets fired, sues for discrimination

November 30, 2012 | by Eric B. Meyer

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

When a male employee texted his female co-worker and former girlfriend that she was a “whore” and later ignored two protective orders that the female co-worker had taken out against him, I wonder if he was thinking, “Maybe, I’ll get fired and parlay that into a winning reverse-gender-discrimination claim.”

Indeed, the guy’s actions violated a number of work rules and, ultimately, resulted in his termination. But a winning reverse-gender-discrimination claim? Not so much according to the Third Circuit Court of Appeals (opinion here):

Christian employee + Ramadan bagel party = hostile work environment?

November 29, 2012 | by Eric B. Meyer

Yep, someone — represented by a licensed, practicing attorney — brought this lawsuit.

***Shakes head // Smiles // Kisses statuette of Blogga-Blogga, the goddess of HR blogging fodder. Love you, boo.***

Bagel party — whoop! whoop! — after the jump…

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That’s what he said: SCOTUS hears argument on who is a “supervisor”

November 28, 2012 | by Eric B. Meyer

Maetta Vance, the only African-American working in her department at Ball State University, claimed that she was subjected to both race discrimination and retaliation. Vance later sued and lost because she could not establish employer liability, which, in turn, depended on whether the alleged harassment was perpetrated by supervisors or coworkers.

Employers have an affirmative defense when the supervisor harassment does not result in a tangible employment action. If, however, the harassing supervisor fires, suspends, or takes some other similar action against the victim, it’s check mate.

In instances of co-worker harassment, where tangible employment actions wouldn’t be at issue (because the harassing co-worker wouldn’t have that power), to prevail on a discrimination claim, the plaintiff must show, among other things, that the employer has “been negligent either in discovering or remedying the harassment.”