Employee on leave says he should get more time

MANAGEMENTApril 1, 2012 

Q. One of our exempt employees was due back this morning from his Family Medical Leave Act leave but he surprised us by requesting six more days of leave. He said because several of our administrative employees had texted him questions, he was prevented from using his leave the way the law intended.

We've never heard of this. We asked the administrative staff what they'd done. They said they had only texted to ask where to find documents so they could wrap up jobs the employee on leave 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 are simply providing a professional courtesy.

This is particularly true when the employee on leave answers co-workers' texts without the boss' knowledge. If the texts occurred only occasionally, your company really didn'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, ask your employee how many text messages he responded to and the amount of time it took him. If the messages took minimal time, let your employee know he needs to return to work to keep his position or take additional leave without pay. If you learn that your administrative staff texted your employee often, brief your attorney and get his advice. If your staff really did impose on the employee, you may owe him additional time.

Q. I fired a man an hour ago for harassing one of our secretaries. According to other employees, he came on to her and wouldn't take no for an answer. When a co-worker came to the secretary's aid, the man shoved the co-worker so hard he fell against the wall and down to the floor.

When I fired him, the guy 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. He 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'd only say only positive things. I then stupidly asked him about the cellphone and he said he'd be right back to drop it off and pick up a letter of reference, which had better be "damned 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 your employees to leave on paid leave until you can arrange appropriate security.

The man sounds like a bully. You should keep in mind that bullies operate like thieves -- taking advantage of opportunity. Stand up to him and he'll move on to easier prey.

Decide whether you want to provide this employee a reference. If he did good work for you, and you believe giving him a reference letter will help safeguard your employees and yourself, prepare a bland one. On the other hand, he sexually harassed at least one of your employees and threatened you, so you may feel you owe him nothing.

If you chose to give a reference, don't lie. You risk legal and moral consequences if you recommend 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. vs Livingston Union School District, 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.


Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Co. Inc. For questions, Curry can be reached at www.thegrowthcompany.com.

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