Q: Can I require an employee to do work while the employee is on FMLA leave?  What if the employee volunteers to work while on leave?

A: Under most circumstances, employees should not be required or permitted to perform work while on leave.  The Family and Medical Leave Act (FMLA) provides eligible employees a maximum of twelve weeks unpaid, job-protected leave for specified family and personal medical reasons in a twelve month period.  During that time, employers are prohibited from interfering with, restraining, or denying the exercise of or the attempt to exercise, any rights provided under the FMLA.

Q: I received an email from an employee stating that he is sick, but will be working from home.  Should I allow my employee to work remotely while sick?  What are the FLSA implications of allowing an employee to work from home while sick?

A: The practice of working remotely or telecommunicating has become increasingly popular given technological advancements like smart phones, videoconferencing, and instant messaging services.  While telecommuting provides several benefits for employers and employees, it can also create new challenges such as when employees opt to work from home while sick.

Q: Can my company fire an employee once the person has exhausted his or her FMLA leave entitlement?

A: Many employers are surprised to learn that they may not necessarily terminate an employee if he or she does not return to work at the end of FMLA leave.  Under the Family Medical Leave Act (FMLA), an employee is eligible for up to 12 weeks of unpaid job-protected leave.  Upon returning from FMLA leave, except in a few limited situations, an employee is guaranteed the right to return to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment that the employee held before the leave commenced.  Under FMLA regulations, however, an employee does not have a right to return to work if he or she is unable to perform the essential duties of the position.

But what if the employee asks for more time off after the FMLA leave period has expired?

Q.  There is a lot of conversation in the national media about the #MeToo movement. How do I ensure that my employees are treating each other properly?

A.  In October of 2017, the two-word hashtag,“#MeToo,” created a social media movement amongst women and men who have experienced sexual harassment. The hashtag was an attempt to educate society about the prevalence of sexual harassment. As a result of the movement, men and women all over the world have been reporting inappropriate behavior in the workplace.  Thus, employers need to be ready for the impact of the MeToo movement and make sure that they have the appropriate policies and procedures in place to effectively address harassment complaints.

Q.  Can employers prevent employees from recording conversations in the workplace.

A.  Sometimes.

As technology continues to advance, so does the likelihood that everything you say and do is being recorded, even in the workplace. With most employees having access to smartphones and other similar devices, there has been an increase in the number of employees engaging in surreptitious surveillance as a means of trying to document alleged wrongdoing and to assert and prove legal claims.  These recordings are being used more frequently in discrimination litigation.  Employees who secretly record workplace conversations often regret it, because the recordings usually depict an employer attempting to be reasonable, and it makes the employee look sneaky and manipulative. However, employers often want to prevent these recordings from happening in the first place. Whether an employer can prevent employees from recording conversations in the workplace depends on federal and state wiretapping laws, and the interests the employer is attempting to protect in relation to employee rights.

Q: Can a private employer limit its employees’ speech and political activity in the workplace?

A: Yes, but not speech that is considered part of a “concerted activity.”

Last year, former San Francisco 49ers player Colin Kaepernick, kneeled during the national anthem to bring attention to racial injustice. On Saturday September 23, 2017, in a series of tweets, President Trump demonstrated his displeasure with NFL players who do not stand during the national anthem and called for their termination.  In response to President Trump’s comments, NFL players across the country have been “taking a knee,” locking arms or staying in the locker room during the national anthem.  These demonstrations have generated a lot of discussion about whether a private employer can limit an employee’s speech and political activity in the workplace.