It seems crazy that your employees can use their allotted 12 weeks of annual job-protected leave under theAct ( ) to work at a second job. But it's allowed under current law. As long as employees have a legitimate excuse for , they can use their leave any way they please.
Can you do anything about it? Thankfully, yes.
As the following case illustrates, if you have a uniform company policy that prohibits employees from moonlighting during any kind of leave, you also can ban employees from working during FMLA leave.
The key point: You must apply this rule consistently. Ban moonlighting during all types of leave, not just FMLA leave.
This doesn't mean you have to ban moonlighting for all employees at all times. In fact, we suggest that your policy stop short of banning moonlighting for active employees, but nevertheless help you limit moonlighting's negative effects.
Recent case: An auto-plant technician asked for FMLA leave to care for his newborn baby and to manage his wife's restaurant in her absence. Although a manager approved the leave, he told the technician that company policy prohibited employees from outside employment while on leave.
Despite the warning, the worker managed the restaurant anyway.
The company fired the technician citing its "no-moonlighting-during-leave" policy. He sued, claiming the company violated FMLA.
A federal appeals court dismissed the case, saying that, although companies usually must reinstate employees after FMLA leave, exceptions to the rule exist. And a consistently applied policy banning all employees from outside employment during leave is one of those exceptions. (Pharakhone v. Nissan North America Inc., No. 01-5955, 6th Cir., 2003)
? Free E-visory reports:
- How to Write a Moonlighting Policy: Tips on writing a policy, plus two sample policies.
- How to Wipe Out Fraud and Abuse Under FMLA: Eleven steps to eliminating fraud by employees inclined to "work" the system.
For a free copy of either report, visit our Extra! site at www.you-and-the-law. com/extra.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Think employee is committing leave fraud? Feel free to discipline--and document why
- Your FMLA obligation ends with forms and notice
- Mere 'association' with a disabled person doesn't trigger need to accommodate
- OK to ask worker to cancel M.D. appointment; that isn't the same as denying FMLA leave