Q: One of our exempt employees, due back from his Family Medical Leave Act (FMLA) leave, surprised us by requesting six extra days leave. He said because several of our administrative employees texted him questions, this FMLA interference prevented him from using his leave in the way the law intended.
We have never heard of this. We asked the administrative staff what they had done and they said it was only texts to find out where documents were left so they could wrap up jobs the exempt employee had initiated. Do we need to give him the extra days?
A: Although employers shouldn't ask employees to perform any work while on FMLA leave, courts generally conclude that those on leave who field occasional job-related texts, emails and phone calls simply give professional courtesy.
This is particularly true when the employee on leave answers co-worker texts without the boss's knowledge. If you learn that the texts occurred only occasionally, your companydidn't interfere with your employee's FMLA leave. In the future, instruct your administrative staff to check with senior management before contacting any employee on administrative leave.
Before you decide how to handle this, investigate by asking your employee to let you know the number of text messages to which he responded and the amount of time it took him to respond. If you learn these messages took minimal time, let your employee know he needs to return to work to keep his position or can take additional unpaid leave. If you learn your administrative staff texted your employee often, contact your attorney and ask for advice -- because your employee may ask for additional days but not deserve them.
Q: I fired a man for harassing one of our secretaries. According to other employees, he came on to her and didn't take no for an answer. When a co-worker came to the secretary's aid, this man shoved the worker so hard the co-worker fell against the wall and down to the floor.
When I fired this man, he came across my desk at me and said the secretary had been leading him on for weeks. An hour after he left, he called from his company cellphone, which he hadn't turned in, and said he was going to a job interview, and if I knew what was good for me I'd give him a good reference.
I said we would only say only positive things. I then stupidly asked him about the cellphone and he said he would be right back to drop it off and to pick up a letter of reference, which had better be "d--- good." What do I do?
A: If you fear violence, call the police. If the police can't arrive in time or stay long enough to make you feel safe, call a security company and arrange for a guard. If you can't make immediate arrangements for your and your employees' safety, allow all of your employees to leave the building on paid leave until you can arrange security.
If you believe this man is a bully, realize bullies operate like thieves by taking advantage of opportunity. Shut down this man's sense he can bully you so he moves on to easier prey. Assess the threat you feel this former employee poses, deciding what you will and won't do and take protective measures to handle whatever he tosses at you.
Decide whether or not you want to provide this employee a reference. If he did good work for you and you decide by giving him a reference letter you safeguard your employees andyourself, prepare a bland one. On the other hand, if he sexually harassed one of our employees and threatened you, you may owe him nothing.
Finally, if you chose to give a reference, don't lie. You risk legal and moral consequences if you give a favorable recommendation for an employee dismissed for harassment and bullying. If he hurts someone while working for an employer who hires him based on your reference, you share liability.
In Randi W. v. Livingston Union SchoolDistrict, a court found two former employers liable for fraud and misrepresentation because they gave false reference letters to a former employee who then hurt students in his next job.
w Lynne Curry is a management trainer, consultant and president of Alaska's The Growth Company Inc. in Anchorage. Email her at firstname.lastname@example.org.