The ruling now gives companies more power to discipline employees who don’t provide proper FMLA notification.

What happened

A worker took intermittent leave for migraines. The side effects of his medicine made him sleep — up to 27 hours at a time — and he knew it.

The man took two doses of meds prior to his shift, but he didn’t call to notify his supervisor that he needed an FMLA day. He slept through his entire shift.

When the company suspended him for 20 days, the man sued, claiming FMLA interference.

The company said he knew he needed FMLA leave — especially after taking the second dose. He could’ve notified the company prior to his absence but failed to do so.

What the court said

The court agreed, saying the man should’ve notified his supervisor as soon as he took his medicine.

Regs require workers to notify employers as soon as possible. The worker didn’t so his suspension wasn’t FMLA interference.

Cite: Valdivia v. BNSF Railway Co., U.S. Dist. Crt., ED KN, No. 07-2467-KHV, 2/12/09.

She went home, accessed the employer’s computer network remotely and deleted vital files, such as databases, accounting invoices, software applications and various backup files.

Problem was, the company knew it was her. So they told the police, who charged her with one count of unauthorized computer access.

She plead guilty and was sentenced to two years in jail, three years of supervised released and a $94,000 fine.

The company may have gotten justice, but it’s doubtful that’s worth the headache of having gone through the mess. Sabotage by disgruntled former employees is getting a lot of attention as a common security threat in this economy. Staying safe requires communication between HR and IT, so tech staffers know whose access to remove at what time.

In many situations, yes, as long as the documentation is in order. But here’s a case where a manager’s flexibility went too far — and got the company in big trouble:

A male bus driver was fired after dropping a student off at an unauthorized stop, in violation of the school district’s policy.

The problem: A few other drivers, all female, had broken the same rule but were never disciplined.

So the male driver sued, claiming he was fired because of his gender.

His manager argued the decision was partially based on the man’s previous performance — during his tenure, he’d been involved in one accident, and the school district had gotten several complaints about him from students’ parents.

His unauthorized stop was just the final straw.

What did the court think?

The judge sided with the employee. He presented a lot of evidence of how frequently the policy was broken. One female driver was caught making unauthorized stops on a regular basis for two years, without any disciplinary action.

The man did have problems in the past, but the school district couldn’t prove the rule had ever been taken seriously by management when female employees were involved.

The lesson for managers: You don’t have to treat every employee exactly the same, even when they violate the same policy. In some cases, such as when there’ve been previous behavior problems, the company might decide to fire an employee while only warning the other.

But firing someone while taking absolutely no action against anyone else is likely to lead to a discrimination lawsuit.

Cite: Dinkins v. Suffolk Transportation Services.

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1. Employer tossed biased test results – still hit hard in court
2. Manager was too flexible — company lands in court
3. DOL: Watch this legal pitfall in employee furloughs
4. Sexual orientation bias bill resurrected
5. Workplace was ‘like a guys’ locker room’ — but was it harassment?
6. Court: Firing complainant’s romantic partner not retaliation
7. Can you recover health premiums when employees don’t return from FMLA?
8. Layoff news causes heart attack — employee gets comp

The court ruled that since the man didn’t engage in “protected activity” – he didn’t file a charge, oppose a company practice or participate in an investigation – he had no basis on which to bring a retaliation claim.

Here’s what happened: A female employee of a steel manufacturer in Kentucky filed an Equal Employment Opportunity Commission (EEOC) complaint against her employer, saying she’d been discriminated against on account of her gender.

Then the company fired her fiance. He sued, saying he’d been fired because she filed the complaint. The appeals panel tossed the case, saying the law doesn’t “authorize a claim by a plaintiff who did not himself engage in protected activity.”

Good news for employers. Still, these are treacherous waters. In a separate concurring opinion, one judge wrote that had the woman filed the retaliation suit, it might have been successful – because firing her fiance would have been injurious to her.

Cite: Thompson v. North American Stainless

<<Previous Story ____ Next Story>>

This Week’s New Stories

1. Employer tossed biased test results – still hit hard in court
2. Manager was too flexible — company lands in court
3. DOL: Watch this legal pitfall in employee furloughs
4. Sexual orientation bias bill resurrected
5. Workplace was ‘like a guys’ locker room’ — but was it harassment?
6. Court: Firing complainant’s romantic partner not retaliation
7. Can you recover health premiums when employees don’t return from FMLA?
8. Layoff news causes heart attack — employee gets comp

So, uh, whose job is it to check that the dress code is being followed, especially the underwear stipulation?

Anyway,  questions aside, the city council in the community north of Tampa recently handed down  a dress code that warns employees about following “strict personal hygiene.” Besides the underwear edict, the council also instructed employees to start using deodorant regularly.

Oh, and while employees must wear underwear, they are prohibited from exposing any part of said skivvies — making it all the more difficult, we think, to catch no-underwear-wearing violators.

The new dress code further prohibits clothing emblazoned with foul language or which is “sexually provocative.” Piercing is OK, but only for the ears.

The only opposition to the rule came from the community’s mayor, Joe Bernadini. He told the Associated Press that he found that the underwear rulings inhibit “freedom of choice.”

We’re still trying to figure out what that means.

From Girl Scout cookie drives to workplace birthday clubs, non-work fundraisers have become a part of many company cultures. Should management be concerned?

There are no simple answers to this question. Most employers want to encourage a family-friendly company culture, but employee (and supervisor) solicitations often have a way of spinning out of control. 

Left unchecked, onsite “selling” can go from a harmless activity to an unwelcomed one that causes tension and can actually hurt morale.

No-soliciting policy?

In one recent survey, 22% percent of employers said they have a policy against soliciting. In most cases, the policy limits the times and places (e.g., break rooms only) where employees can engage in the activity.

Some employers have created bulletin boards where workers can post their fundraisers for interested co-workers.  According to the survey, about one employer in 10 has banned unapproved fundraisers entirely.

Another thorny issue: In some cases, the one doing the selling is a supervisor or an executive, even if the company bans rank-and-file employees from doing it. 

Unfortunately, this leaves HR/benefits in a real tough position. How can you be expected to enforce a policy that managers themselves ignore? It sets you up to be the bad guy, and also shows employees that the powers-that-be either don’t take the policy seriously or don’t think they need to follow the same rules.

Office sports pools: Harmless or harmful?

Odds are pretty high (pun intended) that your employees and/or supervisors have an office football pool going right about now and/or a March Madness pool during the college basketball tournament. If not, they’ve probably worked somewhere in the past where such activities have had the tacit — or open — approval of the top brass.

Is that a good or bad thing for your company culture?

Never mind the fact that the pools are rarely used for “entertainment purposes only.” Although wagering in office pools (and fantasy sports leagues) is technically an illegal activity in some states, the laws are rarely — if ever — enforced. In most states, the typical $5 to $20 office pool is legal.

A bigger, more practical concern: presenteeism.

Easy to spot, hard to stop

If you were to take a random walk around your office and glance at people’s computer screens, chances are you’d find more than a few folks who have game reports open in one Window and their work in another. Want to guess which screen the employee pays more attention to? Yup.

One estimate says March Madness costs employers nationwide $1.7 billion each year in lost productivity. During that time of year, many employees (and supervisors) are paid to do little more than check on how the teams in their office pool are doing in the NCAA basketball tournament.

Truth be told, even if your organization bans office pools, many employees will sneak glances at the scores, anyway. But people are more open about goofing off — and spend longer doing it — when they participate in a pool at work. Many supervisors simply look the other way.

Morale builder?

The typical reason given for allowing office fund-raising solicitation or sports pools is that the activity boosts morale and employee bonding. In reality, the morale-building advantages depend on your company culture and the demographics of your workforce.

One survey found that 30% of professional and business service employees eagerly look forward to participating in an annual March Madness pool at work. On the flip side, only 13% of employees in the hospitality industry expressed interest in the activity.

Gender also comes into play. Roughly 24% of male employees said they’re likely to participate in an office pool, while 11% of women do.

Bottom line: Some workplaces wouldn’t miss such activities if they disappeared. In others, the long-term morale boost cancels out the short-term productivity hit.

Maybe you haven’t encountered any problems with employee posts on Facebook, MySpace and the like. The question is: Should you wait till you have a problem?

Consider the numbers — and the odds that your organization will have a problem:

• About half of all adults in the U.S. have a Facebook or MySpace account.
• The number of people using Twitter has grown by 1,300% in the past 12 months.

So it’s a pretty good bet that some of your employees using those sites at some time or another, and for who-knows-what.

Further, a study by Deloitte of 2,000 workers nationwide showed:

• 74% of employees who responded said they were aware that such sites make it “easier” to damage an employer’s reputation.
• 53% said their networking pages weren’t an employer’s business; that number rose to 63% for employees in the 18-to-34 age bracket.
• 17% said their companies had policies regarding posts to social-networking sites.

It’s another matter altogether whether you have the time and resources to monitor employee activity — at work or at home — on such sites and how postings might affect your company’s reputation.

Still, you can have in place a simple policy that gives you the authority to take steps should you somehow uncover a damaging entry. And having a policy removes the “I didn’t know” excuse if an employee does post something damaging.

So, what should a policy look like? Generally, the less complicated the better. In fact, yours can boil down to two main parts:

1. Establish that employees have no right to absolute privacy when they post on a social-networking site. And it doesn’t matter where they connect from. If it’s on the site, it can be read. And it can be used as grounds to discipline an employee.
2. Remind them that the policy extends to instances of harassment, discrimination and any other behaviors that are barred by law or company policy.

Don’t forget to note that the company has no desire to play Internet cop or keep employees from enjoying social-networking sites. The policy is in place to protect the company and its employees, not to prevent people from using the Web sites in usual, harmless ways.

Here’s an example of one company social-networking policy.

Two seasonal employees at Yellowstone National Park got the axe after a security camera caught them urinating on the Old Faithful geyser site.

Not only that, but one of the ex-employees,  a 23-year-old man,  was fined $750 and placed on three years of unsupervised probation for (we guess) unauthorized urinating, being off trail in a restricted area and taking items from the area. The man has been banned from visiting Yellowstone — to urinate or for any other purpose — for two years.

A spokesman for the park was quick to point out that the geyser was not erupting at the time of the incident and that such incidents are “rare.”

Suppose an angry employee uses a social-networking Web site to trash your company, your managers and even your customers. Can you legally take action against the employee? The results of a landmark federal-court case will provide the answer.

Combine the specter of layoffs, pay freezes and benefit cuts with the popularity of sites like MySpace and Facebook, and you have what’s become a not-uncommon situation: Employees — from home and on their own time — criticizing their employers for all the Internet world to see.

Could they be fired?
In the court case in New Jersey, two restaurant employees created and contributed to a forum about their workplace on MySpace.com. They e-mailed invitations to co-workers, who then had to log in using a personal e-mail address and a password.

The two employees criticized the restaurant’s decor, ridiculed its customers — including sex-laced jokes — and made harsh comments about their supervisors.

The employees charge that their managers illegally accessed their online communications in violation of federal wiretapping statutes and that the managers also violated their privacy under New Jersey law.

So, here’s what the court will decide:

• Are off-work Internet postings about employers grounds for discipline by the employers?
• Do password-only postings have special privacy protections that preclude any type of discipline by employers?
• Can employers establish policies about employee expression and attitude that extend to Web postings?

We’ll keep you posted on the outcome.

Note: Some states protect employees who engage in lawful, off-duty activities from being fired or disciplined. While private conversations might be covered under those laws, none of the statutes specifically addresses social networking or blogging.

The facts:
The employee claims that, for religious reasons, he cannot sign or agree to a diversity policy that demands that he “respect the differences of all employees.” The employee such a clause indicates that he would have to respect and agree with a co-worker’s sexual orientation, and that his religion forbade him from doing so. The employee notes, accurately, that he has never discriminated against a homosexual in the workplace, but still refuses to sign the policy.

The employer said:
Adherence to the policy is a requirement for working at the company, and exists so that no one can accuse the company of failing to address mistreatment of employees because of nonwork factors such as sexual orientation or lifestyle choices. Since signing is a requirement, all employees are obligated to do so.

Who won the case?

Answer: The employee.

Why: The ruling hinged on the finding that employee had never discriminated against gays, despite his religious beliefs. Demanding that he sign an agreement that was counter to his beliefs was evidence that the company was going overboard in its diversity effort.

What matters most, the court noted, was whether or not his religious beliefs resulted in his discriminating against other employees. If there was no discrimination, there was no violation. As long as his religion didn’t interfere with business and treatment of workers, the company should have accommodated him and not required that he sign the agreement.

Look for two factors
Dealing with employees’ religion can be touchy, but for a general guide you can ask: Does the belief lead to -

• conduct that treads on the rights of others in the workplace, or
• actions that are harmful to business?

Without one of those factors, it’s hard to prove that someone’s conduct in connection with religion deserves to be disciplined.

Cite: Buonanno v. AT&T Broadband, Inc.