If you find that one of your employees out on FMLA is working for someone else, can you fire the person? “It depends,” attorney Jeff Wortman says, smiling as he utters the standard attorney response.
Wortman’s remarks came at BLR’s National Employment Law Update, held recently in Las Vegas. He is a partner with Seyfarth Shaw, LLP in Los Angeles.
The first rule, he says, is do not discipline moonlighters unless the activity is inconsistent with the leave. (For example, if your employee is out with a bad left arm, and you find him pitching left-handed, that might merit discipline. If, on the other hand, he is moonlighting as a counselor, that’s probably not inconsistent.)
You may not require that employees on FMLA leave stay at home, Wortman notes.
Whether an employee may continue to work a second job while on FMLA leave may depend upon the employer’s uniformly-applied policy regarding supplemental employment, such as a policy that prohibits outside employment while an employee is on a leave of absence where benefits may be maintained, Wortman says.
Work with your attorney to draft such a policy, Wortman suggests.
Policies should include a statement that employees abusing leave will lose their right to leave and may be subject to discipline or discharge.
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What about surveillance to gain knowledge about an employee engaged in other activities while out on leave? Use surveillance with caution, Wortman says, to be sure you don’t intrude on privacy rights. Using a licensed private investigator to observe an employee at the mall is OK. But spying into a private residence is risky, he says.
Avoid Exacerbating Morale Problems
Another of Wortman’s suggestions for dealing with leave is to send a positive message that doesn’t presume abuse. If you take a negative and/or unprofessional attitude toward leave, you create animosity and undermine morale.
So take the approach: "FMLA is a great law and we the company want very much to help our employees who need leave."
The negative attitude Wortman often sees: "FMLA is a pain, we only do it because we have to, and we know you’re trying to game the system and take advantage of the company."
Look at it this way, Wortman says. The leave might actually be legitimate! So take a professional and objective approach to avoid morale problems.
Social media is increasingly a challenge, what with the NLRB, stretched budgets, and over-worked people. And, of course, dealing with social media is just one of what, a couple of dozen recurring challenges you face? What about FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
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Solicitation. In line with our general nonsolicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
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