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Employment Law

Representing the company at EEOC or MDCR

02/01/2008

Q. A former employee has just filed a discrimination charge against us with both the EEOC and the Michigan Department of Civil Rights (MDCR). We are a small company, and the owner has suggested that we respond to the charge ourselves without using an attorney, as we previously have done in unemployment compensation cases. Is there any reason we should not represent ourselves in this case? …

Can we impose a disciplinary day off against an exempt employee?

02/01/2008

Q. One of our department managers consistently violates our safety policies. We have written him up before, but that does not seem to get through to him. Our safety consultant has suggested that we give the manager a day off without pay to “send a message.” I am concerned that we may have a problem under wage-and-hour laws—that an employer cannot deduct wages from an “exempt” employee. This manager works long hours, and we do not want to face a claim that we made him a nonexempt employee because of a one-day disciplinary suspension. Your thoughts? …

Must the signature of an actual doctor appear on FMLA leave certification?

02/01/2008

Q. An employee who is seeking FMLA leave has submitted the required paperwork from his doctor’s office, but the doctor’s staff assistant signed it. We asked our employee about the paperwork, and he told us that he went to his physician’s office and asked an assistant to fill out the certification. The doctor was not there when our employee took in the paperwork, and he admits that he had never seen the assistant before. Nonetheless, our employee is telling us that we have to accept the certification because someone at his doctor’s office signed it. Please tell me that at a minimum the physician has to know and approve of this certification …

Power to fire doesn’t qualify worker for executive exemption

02/01/2008

Although U.S. Labor Department regulations say exempt executives must supervise the equivalent of two full-time employees, that doesn’t mean an employee is exempt just because he has narrow authority over all employees within the company …

Stay out of court by establishing clear job-Posting rules

02/01/2008

If, like many organizations, you try to promote from within, make certain you have a clear process that someone in HR oversees. Otherwise, managers and supervisors who have specific people in mind for promotion may “tip off” some employees while leaving others in the dark, opening the possibility of discrimination claims …

Similar jobs with different pay may be EPA trap

02/01/2008

Here’s a trap that may catch you unaware unless you regularly compare jobs and who actually holds the positions. If two jobs are roughly comparable, but mostly women hold one of the jobs and mostly men hold the other and you pay one more than the other, you are asking for trouble …

You can require ‘Cultural authenticity’ in some circumstances

02/01/2008

Some retail and service establishments strive to create an authentic experience for their customers. That may mean they seek out employees who can best create that experience. That “cultural authenticity” may be a bona fide occupational qualification, and rejecting applicants who don’t fit the mold may be legal. But don’t go overboard and eliminate everyone who doesn’t look or act authentic …

Employee or independent contractor? Control is key issue

02/01/2008

Employees are entitled to minimum wage and overtime pay under the Fair Labor Standards Act. Independent contractors are not. That difference can save companies hundreds of thousands of dollars on their labor budgets—but only if they really are using independent contractors. But if those “independent contractors” are actually employees, they can sue for unpaid wages and overtime …

Maintaining employee’s dignity is key to avoiding constructive discharge

02/01/2008

Often, constructive discharge cases grow out of a disciplinary process rife with harassment. An employee may suspect that his employer is trying to get him to quit. If a jury agrees, that can mean a large damage award. To cut the risk, have HR administer any discipline, and do so in private and in a way that preserves the employee’s dignity …

If you ignore legal notice, you lose

02/01/2008

Ignoring any legal papers that land on the receptionist’s desk may spell big trouble. If you don’t answer a lawsuit in time, whoever filed the lawsuit gets an automatic win …