The Laconic Law Blog

An employee takes FMLA leave.  The day after the leave starts, he receives a letter from his employer advising him of his FMLA rights.  The language of the letter tracks the employer’s FMLA policy, which provides that any employee with at least 12 months of service and 1,250 hours of work within the prior 12-month period is eligible for FMLA leave.  The letter included a return to work date by which the employee had to return in order to retain his position with the company.  The employee returns from leave.  Shortly thereafter, he begins a second FMLA leave.  The employer sends another letter with similar language and includes an incorrect return date.  After the incorrect return date, but before the correct return date, the employer hired a replacement.  The employee declined an alternate position and brought suit under the FMLA and for promissory estoppel under state law.

Before the district court, the employer argued that the plaintiff was not an eligible employee because he worked at a facility with less than 50 employees within 75 miles of the facility.  The district court agreed, and dismissed the lawsuit.  The employee appealed.  What is the outcome of the appeal?

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The Wall Street Journal Law Blog has a cautionary tale today about an executive who has pled guilty to trade secret theft in California.  The post is here.

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According to an article in HR Magazine, a call center opened by the U.S. Equal Employment Opportunity Commission in March 2008 to field intake calls from individuals — along with placing their intake questionaire online — has resulted in a increase in charge filings.  We will have to wait and see whether these new avenues for filing charges of discrimination will dramatically change the 2008 intake figures.

The 6/5/07 revision of Form I-9 (Employment Eligibility Verification) has been restored as the correct version of the form to use.  This revision reverses the USCIS announcement on June 16, 2008 of a new Form I-9 version, dated 6/16/08, to reflect a one year extension of the OMB control number.   The correct “restored” form may be found at the following link:

http://www.uscis.gov/files/form/I-9.pdf

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During a labor and employment law seminar last week, I heard commentary on the use by employers of services to handle unemployment hearings or EEOC position statements.  Although these services are very helpful for many employers, there is one substantial risk that arises in doing so.  In many cases, the prepaid services do not devote sufficient attention to stating the true and complete reason for the employee’s termination.  This can lead to admissions being made that will be used against the employer in subsequent EEOC proceedings and end up being devastating.

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Human Resource Executive Online had a recent article entitled Caregivers Unite on the new attention being given to family and caregiving discrimination.  The article is worth reading as an update on current trends in this area.  Given the increasing attention to family and caregiver discrimination, we are doing a refresher post on the topic today.

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A survey conducted by the Society for Human Resouce Management (SHRM), reported in the most recent issue of HR Magazine, shows that severance pay practices vary widely among employers. 

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I recently came across an online question that read something like this (really):

“I want to terminate an employee because of her medical condition even though her medical condition is not affecting her performance at work.”

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Several employment blogs are reporting on a decision by the Indiana Supreme Court that upheld a jury verdict based, in part, on expert testimony on workplace bullying.  The case involved allegations of an assault in the operating room.  The Ohio Employer’s Law Blog has commentary here.  Jottings By An Employer’s Lawyer has its commentary here.  Both regard the possible recognition of a workplace bullying cause of action as a bad idea, which is what we have previously said here.  The recognition of such a cause of action would essentially put an end to the at-will employment doctrine and turn every workplace dispute into a potential lawsuit.

An article in HR Magazine this month (SHRM membership required to access) entitled “Guard Against FLSA Claims:  Fair Labor Standards Act lawsuits are increasing.  Are your classifications in order?” reminds us of the need for employers to be proactive about FLSA issues.  The US has seen a dramatic increase in FLSA lawsuits in recent years.  Here is an article in Fortune Small Business article called “Overtime Pay:  A ticking time bomb.”  We previously commented on the low threshold for certification of a collective action by a court here.  Overtime lawsuits are here to stay and ignoring the problem will not make them go away.

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In George v. Commonwealth, Court of Appeals Virginia, Record No. 0332-06-4 (Jan. 15, 2008), the Virginia Court of Appeals found that an employer that withheld taxes from employee paychecks but did not pay the Commonwealth the withheld taxes was guilty of embezzlement.

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As business publications mull over whether we face an imminent recession here in the United States, the question comes up as to whether a recession would increase or decrease outsourcing activity.  Opinions are mixed.

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An article in USA Today about the Sharper Image and Lilian Vernon bankruptcy filings predicts record bankruptcies in coming years.  Given the tightening of available credit, experts predict an increase in Chapter 11 filings by companies.  What does this have to do with employment law?

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Mark Toth at the Manpower Employment Blawg has a follow-up post today here on his Valentine’s Day survey regarding love contracts.  Apparently the results were evenly mixed — 50% in favor, 50% against.  We had a post discussing this issue back on Valentine’s Day here.  As suggested by my quote in Mark’s post, I fall on the “against” side of the fence.

According to an article on MSN.com, overall HR employment is projected to grow by 17 percent between 2006 and 2016.  The article lists ten HR positions with expected growth during that time period.