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Jonathan Hyman

One of the trickiest parts of administering FMLA benefits is figuring out just whether an employee’s health condition qualifies for leave. Who decides, and how?

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Q. I am the principal of a Catholic school. I’ve always believed that, because we are a religious institution, discrimination laws don’t apply to us. While we certainly never intend to discriminate against our employees, we do make decisions from time to time that an employee could challenge in court. Am I right that we don’t have to worry about discrimination liability?

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One of the trickiest parts of administering FMLA benefits is figuring out just whether an employee’s health condition qualifies for leave. Who decides, and how? Follow this five-step process for making sure an employee’s condition is FMLA-eligible.

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One of the four permissible ways for an employer to calculate employees’ 12-week FMLA leave entitlement is to use a 12-month period measured backward from the date an employee uses any FMLA leave. For employers, this rolling 12-month period is the most administratively burdensome—and also the most advantageous.

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If you’re like many employers, you offer severance pay when you have to implement a reduction in force. Never pay severance without getting something in return from the employee, namely a release and waiver of liability. There’s an important catch to understand when you ask for such a release from older workers.

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Q. Is there any law against having a policy that prohibits my employees from working a second job?

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Q. I just found out that an employee filed for bankruptcy. I’m concerned, because she works a cash register and has access to money. Can I fire this employee?

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Q. An employee’s girlfriend is pregnant and having some complications. He has asked for time off to care for her until the baby is born. What are his rights?

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Q. We are a nonunion shop. One of our employees is currently under investigation for sexual harassment. He has asked to have a representative present during all meetings and interviews related to the investigation. Do we have to permit him to have representation?

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Twenty-nine states and the District of Columbia have so-called “smoker protection” laws—laws that elevate smokers to a protected class and make it illegal to discriminate against employees because they smoke. Before the ADA Amendments Act (ADAAA) became effective on Jan. 1, 2009, I was optimistic that these smoke-outs were legal. Now , however, I have reservations. Has the ADAAA created a new protected class for smokers?

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Q. A former employee recently sued my business for discrimination. A few current employees have told me that her lawyer has contacted them seeking information. Is there anything I can do to stop this?

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Q. An employee went out of FMLA leave three weeks ago to undergo and recover from knee surgery. Last night, a reliable and trusted employee spotted him at the local YMCA playing a game of pick-up basketball. We now have serious doubts about the validity of his FMLA leave. Is there anything we can do?

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Q. Can you steer me toward any online information about how to correctly pay employees’ wages?

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Q. I run a small business and only want to employ people who are like-minded and share my core political values. Is it legal to refuse to hire a job candidate because of his or her political beliefs?

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I practice management-side employment law because I want to help businesses better manage their talent. I am not so naive to think that employers fire people only for good reasons. Companies fire employees for lots of reasons—good, indifferent and unlawful. Every lawsuit, administrative charge and internal complaint is an opportunity for a company to learn from a mistake … It becomes an opportunity to train employers how to handle an employee-relations problem better the next time.

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Now that the Democrats have lost their 60-vote supermajority in the Senate, it will be that much more difficult for the Obama administration to make good on many of its pro-employee campaign promises. But this still could be a key year for Democratic plans to revamp our national employment laws. Here are seven key initiatives pending in Congress and what they could mean for your business if they become law.

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Q. I am considering putting a policy in place to prohibit hiring any job applicant found to have an arrest record. Are there any legal risks?

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Q. I’ve never required background checks on any job applicants. To get a better understanding of whom we’re hiring, I’ve retained a professional screening company to begin vetting our candidates for things such as criminal convictions. Are there any specific protocols we should be following?

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Q. I have certain employees that I don’t want leaving my business to work for a competitor. I am leery about using a noncompetition agreement because I know that courts can be hostile toward them. I understand they can cost a lot of money in legal fees to enforce. Are there any alternatives for me to consider?

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Q. Currently, we don’t do any background investigations on job applicants. I’m considering instituting an informal background-screening program, whereby my HR director would conduct a Google search for every job applicant, in addition to looking at any Facebook, Twitter, LinkedIn and MySpace pages. I can’t imagine there’s any legal risk in researching information that is already publicly available on the Internet, right?

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