Paid FMLA leave only for execs may be asking for trouble

Q We would like to establish a policy that provides paid Family and Medical Leave Act (FMLA) leave for corporate employees and nonpaid FMLA leave for all field employees. Is this legal? I’m concerned about a disparate impact.

A Paying employees who are on FMLA leave is voluntary. Therefore, nothing in the FMLA requires you to pay field employees for FMLA leave, even if corporate employees are paid. However, note that Connecticut does have a paid sick leave law that requires payment for a small portion of FMLA leave in certain situations. Your concern about a disparate impact claim is well-founded. If most of your field employees are of a race or sex that is different from the race or sex of your corporate population, you would risk a claim that the no-pay practice adversely affects a protected group. Analyze whether that is the case, and determine (perhaps with legal counsel) whether a disparate impact claim would be supported.


Q We recently hired a new manager. The day before she was supposed to start, she informed me that she needed 10 more days before starting because of a personal matter. Today, I got a call from her saying she can’t start for another month, and then she called back and said she can start in two weeks but will need to take a few weeks off after she starts. Can I just rescind the offer of employment since she keeps postponing her start date?

A It depends on what the “personal matter” is. If the employee’s personal matter is a disability that prohibits her from working, there is a good chance you are required to accommodate her absences. If the matter is something else, chances are, you do not have to tolerate the delayed start date. Connecticut courts have found that you can rescind a job offer as long as (1) your reason for doing so does not violate the law (e.g., discrimination or retaliation) and (2) you have not made a contractual commitment to the employee. The courts’ decisions were based on the fact that the employees were hired as “at-will” employees, and their employment was at will even before it started. Thus, they could be terminated at any time for any reason.

Q If an employee is on some kind of medicine for his back and we notice he has mood swings and can be hostile toward his manager, what rights do we have as the employer? May we require him to bring in a doctor’s note? This could be a long-term issue with him.
 
A Employers are not required to tolerate insubordination
or hostility toward managers, even if the hostility
is caused by medication. Discipline the employee just as you would any other insubordinate worker. Discipline may lead to termination.
A It depends on what the “personal matter” is. If the employee’s personal matter is a disability that prohibits her from working, there is a good chance you are required to accommodate her absences. If the matter is something else, chances are, you do not have to tolerate the delayed start date. Connecticut courts have found that you can rescind a job offer as long as (1) your reason for doing so does not violate

 

the law (e.g., discrimination or retaliation) and (2) you have not made a contractual commitment to the employee. The courts’ decisions were based on the fact that the employees were hired as “at-will” employees, and their employment was at will even before it started. Thus, they could be terminated at any time for any reason.
Read More...