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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: One of our employees has been exhibiting strange, erratic behavior at work. Can we require the employee to submit to a mental health examination?

A: Possibly. The ADA prohibits employers from requiring their workers to undergo medical exams unless the exam is “shown to be job-related and consistent with business necessity.”  However, an employer may require an employee to undergo a mental health examination if the employee’s behavior raises questions about the employee’s ability to perform essential job-related functions or raises a safety concern.

Q.  Our company wants to establish an internship program and host student interns to work alongside our employees. Do we need to pay the interns?

A.  Possibly. Over the past few years, courts and the Department of Labor (“DOL”) have carefully examined the relationship between businesses and unpaid student interns to determine whether students working at a company are more properly classified as unpaid interns or employees protected by the Fair Labor Standards Act (“FLSA”).  Under the FLSA, if an individual is deemed a non-exempt employee, that employee must be paid at least a minimum of $7.25 per hour and one and a half times their regular rate of pay for all hours worked in excess of 40 in a workweek.  The minimum wage is higher in many states, including New York and New Jersey.

Q.  My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?

A.  In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.

Q.  Do you have any tips on how to ensure that our company holiday party does not lead to a new year liability?

A.  As the year comes to a close, many employers often celebrate with a holiday party as a way to thank employees for their contributions. The holiday party is meant to build comradery with co-workers, and provides an opportunity for all employees, management and non-management, to “let their hair down”.  A festive occasion however, can turn into a legal nightmare if employers fail to set expectations.  Everyone has heard stories of an employee (or two) having too much to drink at the holiday party and making an inappropriate joke, getting “touchy” with a co-worker, or getting into a car accident.  By following a few simple rules, employers can attempt to prevent such legal disasters.  Below are some suggestions to help ensure that your holiday party does not end up as the focus of a lawsuit.

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: A former employee has invited some of her former co-workers and clients to connect on LinkedIn. Is this a violation of her non-solicitation agreement with our company?

A: It depends. In general, a generic invitation to connect will not be viewed as a violation of a non-solicitation agreement.  However, if an invitation is accompanied by a personalized message or other targeted communication, it likely will be viewed as a violation.

Q.  Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?

A.  Possibly.

While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.

Q.  I am the HR Manager for a non-union workplace and we are investigating an issue involving employee misconduct. One of the employees whom I want to interview has requested that a coworker attend the interview as his “representative.” Can we say no?

A.  Yes!

While the NLRB has flip-flopped on this issue several times over the past few decades, the current ruling is that employees in non-union workplaces do not have so-called “Weingarten” rights to representation during company interviews.

Q.  An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?

A.  Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.