5 legal traps for the wariest employer

You're an employer who tries to do the right thing. But what hidden traps are out there, waiting to grab your ankle and yank you into a lawsuit? Here are a few that cause trouble for even the best employers:

Trap No. 5: Capturing all time worked for your non-exempt employees. We get so accustomed to exempt employees who answer emails at all hours and handle business while driving to and from work. We never have to worry about tracking their time. But, of course, it's a different story if your employees are non-exempt. If non-exempt employees perform any work during their "off" time, then the time must be paid (with an exception for increments that are so trivial that the courts say employers don't have to keep track). This is true even if the work occurs during time that would normally be non-compensable, like a cell phone call during the morning commute to the office. That commuting time is non-compensable only if no work is performed.

Trap No. 4: The Family and Medical Leave Act "firewall." One of the worst FMLA problems I see is with employers who have (understandably) built a "firewall" around the department or third-party administrator that handles FMLA leave requests. Because of the firewall, there isn't always good communication between the FMLA administrator and Human Resources, and an employer may find out too late that it terminated an employee who should have been given FMLA leave or a reasonable accommodation. If you have this type of set-up, be sure to always check with your FMLA administrator before terminating an employee for attendance.

Trap No. 3: The "interactive process" under the Americans with Disabilities Act. In my experience, . . . well, let's just say that many employers find engaging in the ADA interactive process counterintuitive. So easy, and yet so easy to forget to do.

Trap No. 2: Protected concerted activity. Any time two or more non-supervisory employees complain about anything having to do with their working conditions (bet that never happens), or any time one employee does it on behalf of others or is preparing for group action, you have protected concerted activity, and it's illegal to punish the employee for engaging in the activity. "You're making us work too much overtime!" "You don't give us enough overtime!" "The boss is a jerk!" "This 1.5 percent raise stinks!" "Our office needs a better furnace - we're freezing!"

And "PCA" doesn't just include statements and complaints, but it also can include activities, like strikes and union organizing.

Oh, and it applies to non-union as well as union employers.

Trap No. 1: Retaliation after the underlying complaint was found to have no merit. Here's an example: Meadow complains that she's been sexually harassed by Jayden. You investigate, and Meadow explains that she was uncomfortable because Jayden said "good morning" to her. Meadow has wasted your valuable time, and you are ripped. So you write her up, either for her complaint about Jayden or because she came to work 32.7 seconds late the next morning. (Your other employees can mosey in whenever they want, as long as they get their work done.) Unless you can show that Meadow made the sexual harassment complaint in bad faith -- a pretty tough standard to meet, and especially in this case, where Meadow told you exactly what she was basing it on -- then you cannot take action against Meadow even though her complaint was baloney.

Put another way, if Meadow filed an EEOC charge against you, she might lose on the sexual harassment part, but she would probably win on the retaliation part.

Free Bonus Trap! Employment at will/right to work. You do as you please with your employees because you operate in an "employment-at-will, right-to-work" state, which means you can fire them for any reason you want and you have the "right" to let them "work" or not, as it suits your fancy. Here's the real scoop on these two often-misunderstood legal concepts: (1) The employment-at-will doctrine is riddled with exceptions, so never count on it to save you from liability for an unjust termination. (2) "Right to work" has nothing to do with "employment at will." A "right-to-work" state is one that has laws prohibiting employers from requiring employees to be members of a union or to pay union fees as a condition of employment.

(No mice or children were harmed in the writing of this post.)


The Office of Federal Contract Compliance Programs is back, and so Cara Crotty is also back with what federal contractors need to know about the new regulations pertaining to LGBT workers. (The new rule doesn't sound that bad -- can you believe it?)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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