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Jonathan Hyman

The ADA expressly excludes pregnancy as a disability. The law says so, and I’ve always believed it to be true. But now a new decision has turned that notion on its head—and that may mean you’ll have to make some changes to your policies.

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Q. I heard something about a new EEO poster that employers are required to have in their workplaces. Can you explain this new requirement?

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Q. Is there any help you can provide on how we should obtain medical information from employees taking FMLA leave?

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Q. An employee recently requested a leave of absence because her husband left for Afghanistan. We denied her request. Now, I’m worried that we may have acted wrongly. Did we?

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Q. An employee worked for us for years, took four years off to have a child and was rehired nine months ago. She asked for time off because her child needed surgery. We refused because we thought she was not FMLA-eligible. After we terminated her for an unauthorized leave of absence, we received a nasty letter from her attorney threatening to sue us for violating her rights under the FMLA. Who’s right?

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I’ve long preached that employees should not enjoy an expectation of privacy in information they voluntarily place on the Internet, including social networks like Facebook. Now according to one federal court in Indiana, it is also fair game for employers to use social networking information when they have to defend against harassment and discrimination lawsuits.

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Q. A recently terminated employee retained an attorney, who then engaged in pre-suit negotiations with our HR vice president. During those negotiations, our VP disclosed, in writing, some confidential information about the internal investigation that led to this employee’s termination. Negotiations have since broken down and the employee filed suit. Should I be concerned about these pre-suit disclosures coming back to haunt us in the litigation?

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Q. I own a restaurant where we require the waitresses to wear revealing outfits. Recently, we placed an employee on a probationary period as a result of her having gained weight. We advised her that if she did not lose 10 pounds in 60 days, we would terminate her employment. Have we done anything illegal?

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Q. Admittedly, this is an odd-ball question. My HR department just received a complaint from an employee about risqué e-mails that some of her co-workers were trading back and forth. Coincidentally, the employee who complained is also slotted for termination because of poor performance and attendance problems. Is there any risk in terminating this employee in light of her recent complaint?

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Q. An employee recently came to us with a unique request for a reasonable accommodation. She has a dangerous allergic reaction to paprika, and uses a service dog to warn her whenever the spice is nearby. We granted her request to bring her service dog to work. Subsequently, another employee complained that she is severely allergic to dogs. What should we do?

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Employers and their lawyers often favor mandatory arbitration of employment claims for two reasons: It’s a cost-effective alternative to court, and it’s an insurance policy against runaway jury verdicts. Arbitration, however, can often prove just as costly as court. Thus, while many employers continue to favor arbitration to limit their potential exposure in front of a jury, others have begun to consider alternatives.

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Q. We currently have a policy against the hiring of anyone with a felony conviction. Can you shed some light on whether this policy is legal?

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Q. We run a pretty laid-back office and are considering allowing employees to bring their pets to work. Anything we should be thinking about?

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Q. For years, we have used student interns during the summer months. Because they are interns, we do not pay for their services. Is this legal?

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Q. One of our employees just returned from maternity leave and is now requesting that we accommodate her need to pump breast milk during the workday. Do we have to make this accommodation?

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Q. After a recently terminated employee sued our company for discrimination, we undertook a forensic examination of her work-issued laptop. We found, saved in the cache of the web browser, e-mails she sent to her attorney from her web-based, personal and private e-mail account. Can we use these e-mails in the lawsuit?

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Q. Do we have to pay our mortgage loan officers overtime for any hours worked over 40 in a week?

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Q. My company just received notice that an employee filed a discrimination charge against us with the EEOC. What happens now?

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It’s a situation that happens more often than you might think: An employer finds out that one of its employees is preparing to leave and set up her own shop. But is the employer handcuffed, unable to do anything about the upstart competitor because this employee didn’t sign a noncompetition agreement?

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Q. An ex-employee who we fired just filed an FMLA lawsuit against us. In addition to our company, he also named as co-defendants the HR, benefits and plant managers, along with me, the president and CEO. We believe the employee was legally terminated. Is there any risk in having our corporate attorney represent all of the defendants in the lawsuit?

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