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David B. Ritter

Under the FMLA, employers with 50 or more employees within 75 miles of the company’s work site are required to provide FMLA leave to their employees. But even if you’re a small employer, innocent mistakes could make the “50/75 rule” meaningless to you — and force you to provide FMLA leave. Learn how to avoid that trap.

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Q. Our policy states employees must provide a doctor’s note if they take sick leave of three or more days. Are we violating any laws by demanding the doctor’s note, which includes a diagnosis?

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If a recent 7th Circuit case is an indication, courts are taking a close look at whether groups of plaintiffs have enough in common to constitute a valid class. It may mean that em­­ployers will face fewer large class-action lawsuits.

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Q. We recently hired someone we didn’t know has a severe allergy to peanuts. If she even smells peanut butter, she has a severe allergic reaction, requiring her to use an EpiPen and head to the emergency room. Could we have refused to hire her if we had known about her allergies?

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Disclosing on a company calendar that an employee is out because of sickness or FMLA leave is problematic. An employer should never disclose that absences are due to medical or health reasons. You must maintain the confidentiality of such information.

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Q. We have several 16-year-old girls working as servers in our restaurant. One worker’s mother told us about alleged harassment. Can we rely on our training for our defense?

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Q. One of our employees was on military leave for six months. He will be reinstated at the same pay and position. While he was gone, all employees in his department received a 4% pay raise in recognition for their hard work in the past year. Must we pay him that raise?

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Q. On three occasions, an employee threatened colleagues with physical violence. After the last incident, she explained to her manager that she is bipolar and going through a prescription change. She said she was unaware of making threats, was truly sorry and never meant any harm to anyone. Do we have to tolerate this behavior now that we know she may be disabled?

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Q. We have surveillance cameras in several locations in our workplace that record activity, but no sound. The images can be viewed over the Internet by supervisors and HR personnel who have the password to the site. What should our privacy and electronic communications policy say about access to the camera feed?

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Q. May we ask for a diagnosis when an employee ­requests a few days of sick leave? Or must we ­accept any doctor’s note without any explanation?

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Some employers have recently begun to require employees and applicants to provide their passwords or otherwise allow access to their social media accounts. The Illinois Legislature has now put a stop to that practice.

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Q. I’d like to institute a civility code that goes beyond the basic racial and sexual slurs to include any name-calling that is demeaning, crude or rude. What do you suggest as punishment?

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Q. I need to send a nonexempt employee to training for two days out of town. We’ll pay his mileage, hotel, meals and training costs. We plan to pay him for a normal eight-hour workday for both days … Do we have to pay for off-duty hours since the employee needs to stay at the training venue?

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Q. I know we have to provide milk-expression breaks for new moms, and we do. But now a new mother is having her mother bring the baby in twice a day to nurse. These breaks go more than 30 minutes as the baby is passed around, etc. Can we just tell her to express and refrigerate the milk?

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Q. With the election approaching, it seems like our office is as politically divided as the country. Can we ban all political talk?

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Q. We’re interested in taking advantage of the new incentive for Illinois employers to hire veterans. What are the details?

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The 7th Circuit has held that employees who participate in employer internal investigations before administrative charges or lawsuits have been filed are not protected from retaliation. It’s different, however, after such charges have been filed.

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Q. Could you explain the National Labor Rela­tions Board’s recent challenges to at-will employment policies?

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Q. What is the final rule that the EEOC issued regarding the Age Discrimination in Employment Act (ADEA)?

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The 7th Circuit recently considered for the first time whether an employee can be individually liable under a “cat’s paw” theory of retaliation under Section 1981. In Smith v. Bray the court held that an employee could sue an HR manager individually for retaliating against him by influencing the decision to fire him.

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