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Jonathan Hyman

I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that the signed agreement include a nondisparagement clause. The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it after it has been breached. That’s not as easy as it once was.

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Q. We have a school bus driver who takes a 10-minute bathroom break before dropping off her empty bus at the depot. We’ve been deducting the minutes from her paycheck. She says she must take the break due to her medication. Do we have to pay her?

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Q. We’ve been keeping I-9 forms for an indefinite period. Now I hear we only have to keep them for three years for active employees and one year for terminated employees. Which is correct?

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Q. We set up a room for new mothers to express milk, complete with a refrigerator and comfortable chair. Now we have a new mother back at work after just four weeks who has the grandmother bring the infant to the workplace every three hours for nursing. This is very disruptive. Can we tell her to express and store the milk instead?

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The recently enacted ADA Amendments Act was passed to make it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’ …” It does that by expanding the definition of the term “disability.” In fact, the definition of “disability” may now be so broad that it covers conditions such as nicotine addiction.

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Q. We dock hourly employees who arrive late for work, but not our exempt employees. There’s quite a bit of resentment about this policy, especially since over time our exempt employees have been extending the time it takes them to get to work during inclement weather. We know we can’t dock exempt employees if they make it in during snow days, but can we discipline them?

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Q. We’ve been accommodating a disabled employee by letting her skip overtime. Her doctor says she needs extra sleep. But now we need to lay off several employees and start requiring mandatory overtime. Can we terminate those employees who can’t do overtime? That would include the disabled employee.

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Q. We offer health insurance coverage only for individual employees. We’ve never provided family coverage for anyone, nor do we make it available at the employee’s cost. An employee with a daughter in grad school says the new health care law requires that she be allowed to add her daughter to the plan because she is younger than 26. Is this true?

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Q. One of our employees has a 16-year-old daughter who lives with her and is going to have a baby. The grandmother-to-be wants 12 weeks of FMLA leave to care for the daughter and bond with the grandchild. Is FMLA leave available for her? She says she will be co-parenting the infant. Is she basically in loco parentis to the baby and, therefore, eligible?

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Q. Our company lets employees take two 15-minute paid breaks during their eight-hour shifts. One employee usually leaves the premises during her break and drives to a convenience store. If she were involved in a car accident on the way, would the company have any liability since she is still on the clock?

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Q. An employee seeking FMLA leave presented medical certification from her doctor that stated that her medical condition didn’t prevent her from performing the essential functions of her job. A few days later, she presented a second form that stated the opposite. Can we hold her to the first certification, or do we have to accept the second form and grant FMLA leave?

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Q. Are employers liable if an employee is hurt on the job as a result of his or her own disability? For example, what happens if an employee with a heart condition has a heart attack? Is the employee entitled to workers’ comp because it happened at work? Or could we be liable because we allowed the employee to work?

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Q. Due to budget problems, we plan to furlough our employees for one day per month. Some have asked whether they can collect partial unemployment comp. What should I tell them?

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Q. Our employees have come to expect a holiday bonus every December. We need to end that practice this year due to the economy. Are we legally obligated to give some kind of notice?

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Q. Everyone has been working extra hard this year, especially our exempt salaried employees. We want to reward them with extra pay. Can we pay them overtime if they put in more than, say, 50 hours in a week? Or is it better to offer a one-time bonus? I don’t want to affect their exempt status.

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Q. We provide janitorial services to local companies. We just learned that one of our employees is asthmatic. She missed several days because of her asthma. Now she wants to return, but she needs to keep a breathing machine with her. What can we do? We aren’t sure our customers will accommodate that need.

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Q. An employee recently resigned from our company. In his resignation letter, he told us that he was disappointed that we were unable to accommodate his sleep apnea … However, he never told us until he resigned that he suffered from any medical condition, including sleep apnea. How are we supposed to accommodate a medical condition that we don’t know about?

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Q. A male employee recently complained to HR that a female co-worker was sexually harassing him. Do I have to investigate this claim the same as I would a claim by a woman against a male co-worker?

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Q. Our company has a 90-day probationary period that employees must complete before they’re eligible for holiday pay. We’ve always made salaried exempt employees meet this requirement, too. So if a holiday occurs during their first 90 days, we only pay them for the days worked that week. Is this legal?

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A deposition may feel like a simple conversation between the parties in a lawsuit, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions and evaluate you as a trial witness. The following are my top 10 things to think about as you prepare to give testimony in a deposition.

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