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.

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.

Last month The New Yorker published a story detailing years of claimed sexual harassment and misconduct by Hollywood producer Harvey Weinstein. Since then, it seems that every day features new allegations of similarly inappropriate behavior by public figures, from actors, to authors, to public radio executives. It is unclear whether…

Q: Do I need to pay non-exempt employees when they go on short rest breaks of 20 minutes or less?

A: Yes.

The United States Department of Labor (“DOL”) has long taken the position that when employers offer non-exempt employees short breaks of under 20 minutes, the time spent on that break is “compensable” under the federal Fair Labor Standards Act (“FLSA”).

Q: I heard there is a new parental leave law in California.  How does it compare to other states’ laws and will it affect my business if I have employees in California?

A: Parental leave laws are one of the most complicated aspects of employment law to administer and track.  There are federal, state, and local laws at play, and there is very little uniformity across the laws and across the states.  Even within one state, there may be multiple laws applicable to parental leave, and it can be difficult to navigate the interaction and overlap between the laws.  California’s new parental leave law continues to add to this complexity.

California companies with five or more employees are subject to new legislation that prohibits criminal background screenings prior to a conditional offer of employment.  This legislation also prohibits requesting information about criminal history on an application or at a preliminary point in the hiring process.  Affected employers should carefully review…

Q.  Can I discharge an employee if I believe that he or she is misusing FMLA?

A.  According to a recent Third Circuit opinion, an employer’s honest belief that its employee misused FMLA leave is sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.

In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the company granted the employee intermittent FMLA leave for flare-ups as a result of hip replacement surgery.  On February 14, 2013, Capps took intermittent leave. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.

United States executive agencies are practically always on the same page when presenting to the public. So, it is incredibly unusual to see two such agencies taking positions directly contrary to one another in pending litigation. This, however, is exactly the current situation between the U.S. Department of Justice (DOJ),…

Q: How long does an employer have to accommodate an employee’s disability in the form of a leave of absence?

A: The law in most jurisdictions is unclear. In fact, in most jurisdictions, including Pennsylvania, New Jersey, and New York, there is no bright line rule as to the length of leave time that is reasonable under the ADA.  Typically courts look at the surrounding circumstances to determine whether the amount of time off is a “reasonable accommodation” and have held that leaves longer than three months were required in some circumstances as a reasonable accommodation.