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The Practical Employer

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Helping employers navigate the complicated and ever-changing world of employment and labor laws, rules, and regulations, rationally and pragmatically.

28 Days Later? Passage of Time May Allow Employers to Recertify FMLA Claims

April 9, 2013
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Managing FMLA leave, and particularly managing intermittent FMLA leave, is one of the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence.
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Can You Hear Me Now? Unilateral Deafness Is Not an ADA Disability

April 3, 2013
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This case is significant because it proves the exception—that a subset of diagnosed medical conditions exists that does not qualify as an ADA-protected disability.
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Deploy the Girl Scout Cookie Offensive to Ward Off Labor Unions

April 2, 2013
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Consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that if a union organization drive rears its head, you will be left powerless to engage one of your key weapons—the no-solicitation policy.
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A Cautionary Tale on What Happens When You Botch a Litigation Hold

April 1, 2013
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As soon as you reasonably anticipate litigation, you have an absolute duty to implement a written litigation hold that both instructs employees to preserve paper and electronic records relevant to the case, and suspends any automated processes that otherwise might result in the destruction of such records.
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More on Retaliation for Firing After Complaints of Third-Party Discrimination

March 27, 2013
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Even if Title VII protects Richards' online venting as “opposition,” it is doubtful she will be able to establish a nexus between her comments and the termination. Her employer did not terminate her because of the contents of her tweet, but because of the very public nature of her complaints.
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Should Employers Be Liable for Conduct They Cannot Control? Fired for Tweeting About Third-Party Misconduct

March 26, 2013
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For Adria Richards to have a reasonable belief that she experienced unlawful discrimination or harassment, her employer needs to be able to do something about the alleged discrimination or harassment.
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How Not to Respond to a Harassment Complaint

March 21, 2013
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If you are not the person in your organization trained to address and investigate sexual harassment claims, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you.
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Accommodating Disabled Job Applicants is No Game

March 20, 2013
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If a job applicant needs an accommodation to complete the interview process, and it does not impose an undue burden, provide it. If it turns out that someone cannot perform the essential functions of the job even with an accommodation, you are within your rights to deny employment. You cannot make that determination, however, unless you consider them for the job first.
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Paying Employees for Accrued Vacation Upon Termination—Yay or Nay?

March 18, 2013
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According to the court, the employee handbook clearly stated that accrued vacation is forfeited to an employee upon termination. To me, however, such as policy is draconian and overbearing. Instead, consider limiting vacation and other paid time off forfeitures to “for cause” terminations.
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