Learning & Development

Depressed, Discriminated Against, and Out on FMLA

In yesterday’s Advisor, we featured attorney Jonathan A. Segal’s take on the most common mistakes in discipline and termination. Today, more of his practical advice, and an introduction to a unique training system that will help all your supervisors and managers avoid lawsuits

Segal, a partner in the Philadelphia office of law firm Duane Morris, delivered his suggestions at the Society for Human Resource Management Annual Convention and Exhibition held recently in San Diego.

[Go here for mistakes 1 through 8]

9. Delaying implementation of discipline decision

Unfortunately, when you delay a discipline decision, you open a window for the employee to make preventive strike, Segal says. The employee senses that something’s going on and goes to his therapist and says, “My self esteem is bad.” The therapist says, “I can’t help but I know a lawyer who can.”

The employee comes in the next day: ” I’m clinically depressed—ADA-style—because of religious discrimination—of the Title VII variety—but my son’s sick, so, let’s talk when I’m back from FMLA.” Now if you take action, it looks like retaliation, says Segal.

When you make a decision like a termination decision or final warning, put it in writing. “Today we met and decided to issue a final warning to Steve. Because he is on vacation this week, we will notify him on his return.”

10. Considering protected absences as part of excessive absenteeism

When your supervisors and managers fire for excessive absenteeism, they typically lump in days missed because of a legitimate reason, such as FMLA. If you are going to terminate for attendance, says Segal, do a day-by-day analysis of all the absences. Include a note that says, ‘We haven’t counted the FMLA absences, and we haven’t counted other absences that might be protected. Counting just those absences that are unequivocally unprotected, your absence is excessive.”


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11. Denying employee opportunity to tell his or her side of the story before finalizing decision

There’s no legal manadate to do this,” says Segal, “but it’s wise. First, it’s a basic fairness issue. But second, you might be wrong.”

Segal recounts one particular incident: The CEO’s office was a mess. The cleaning woman was fired for not cleaning the executive suite. To later questioning, she responded as follows:
Did you clean the suite? No.
Did you know you would be fired if you didn’t clean it? Yes.
Was there a reason you didn’t clean it? Yes, the door was locked.
Whoops. It developed that an executive was having sex with his admin assistant. Moral: Ask for the employee’s side of the story.

Even with the best of intentions, supervisors and managers will get the company into hot water when disciplining and terminating—unless they are trained. Unfortunately, up  until now, training has been a real challenge—there’s such a load of extraneous planning, preparing, and tracking involved. But we’ve got good news—BLR’s editors have developed a unique new program that’s done all that work for you.

It’s called the Employee Training Center. This turnkey service requires no setup, no course development time, no software installation, and no new hardware. Your employees can self-register, and training can be taken anytime (24/7), anywhere there is a PC and an Internet connection. Courses take only about 30 minutes to complete.


No time to prepare or deliver training? With the BLR® Employee Training Center, your employees can start taking essential training courses the same day you sign up. Workers (and supervisors) train at their convenience, 24/7. We track, and you save with this turnkey solution. Yes, it really can be this simple. Learn more.


The Employee Training Center automatically documents training. As trainees sign on, their identifications are automatically registered. When the program is completed, the trainee’s score is entered. So, when you want to see who has been trained on any subject, or look at the across-the-board activity of any one employee, it’s all there, instantly available to you, your boss, an inspector—even a plaintiff’s attorney.

Course certificates can be automatically generated from within the training center and are automatically retained for recordkeeping purposes.

Unlimited Training That Won’t Bust the Budget

Best of all, in these budget-crunching times, the BLR Employee Training Center costs only a fraction of what you would pay for a learning management system (LMS). You always know exactly what training will cost, no matter how many programs you use, or how many times you use them. There’s just one low annual fee—for unlimited training—calculated by the size of your workforce. Budget once and you’re done!

These are all motivational, actionable courses—for both employees and supervisors—in such key areas as sexual harassment, FMLA, diversity, communication, USERRA, recruiting, and many more. The courses are kept up to date to reflect federal and state regulatory changes, and what’s more, BLR adds new programs continually.

The BLR Employee Training Center also includes a selection of safety courses—you decide whether you want just the HR courses, the safety courses, or both HR and safety.

If it sounds as if we’re excited about this new service, well, we are—and so is the Software & Information Industry Association, which just voted the BLR Employee Training Center the “Best Workforce Training Solution.” Find out what all the buzz is about—sign up for a no-obligation trial to Employee Training Center.

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