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Jonathan Hyman

When Republican Scott Brown of Massachusetts won January’s special election to fill the seat long occupied by the late Sen. Ted Kennedy, Democrats lost their 60-vote supermajority in the Senate. That means it will be that much more difficult for the Obama administration to make good on many of its pro-employee campaign promises. That’s not to say those employment law initiatives are dead. The following are the key initiatives pending in Congress.

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Q. I know that there have been some recently enacted changes to federal employment laws (the Genetic Information Nondiscrimination Act and the ADA Amendments Act, for example). How do these changes affect the required EEO postings for my business?

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If you have a strict grooming policy or are considering implementing one, make sure you first understand what you can and cannot require employees to wear or what grooming standards you can legally enforce. Employees can and do sue when their employers try to impose rules that interfere with religious beliefs, reflect sexual stereotypes or are simply demeaning.

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Q. What are my responsibilities as an employer for maintaining employees’ wage records?

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Q. Can I require my employees to be vaccinated against the flu? I am concerned about the impact H1N1 will have on my business if it spreads among my employees, and a large group needs to take time off.

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Q. Can I implement a rule against hiring people who are overweight?

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Q. An employee complained that a co-worker was sending her sexually suggestive text messages and leaving inappropriate comments on her Facebook “wall.” Do I have any obligations to investigate?

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Q. What rights does an employer have if an employee fails to give timely notice of FMLA leave?

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Q. Can we legally set a mandatory retirement age for our workers?

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According to a recent working-conditions survey, many employers are not doing the routine maintenance they should to keep their labor and employment compliance in tip-top shape. There’s no guarantee that tuning up your workplace policies like you do your car will avoid lawsuits. But, some routine preventive maintenance will go a long way to ensuring better compliance and fewer problems.

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Q. Can our employee take FMLA leave without first giving us notice that she needs leave?

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Q. Our company maintains an affirmative action plan. I’m concerned, however, that if we refuse to hire a white applicant because of the plan, that person might be able to sue us for discrimination. Yet, if we don’t follow the plan, minority applicants can sue us. It seems like a Catch-22. What do we do?

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Q. I own a themed restaurant where some employees dress in costumes to entertain the children. Last week, an employee complained that a “regular” grabbed her breasts through her mouse costume. Am I correct that I don’t have any responsibility because the groper wasn’t one of my employees?

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If I had to boil employment law into one overarching maxim, it would be this: Be fair and document everything, in case someone thinks you’re not being fair. If you doubt the importance of thorough documentation, consider two recent cases decided by the 6th Circuit Court of Appeals.

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Q. Despite the recession, my business is going gangbusters. Instead of having to lay off people, I’m in the position of having to schedule lots of overtime. I have one employee, though, who is balking at having to work more than 40 hours a week. He’s really hurting my production. Do I have any recourse against this employee for refusing overtime?

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If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous or nonresponsive), an employer is now entitled to request additional information directly from the employee’s health care provider, subject to certain key limitations.

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Q. We have an employee whom we have classified as exempt, but wants to be classified as nonexempt and earn overtime. Frankly, she’s become a pain about the whole thing. Can we just fire her?

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Employers have to meet thresholds before they’re required to comply with most statutes. For example, the FMLA applies only to organizations that employ 50 or more employees within 75 miles. But smaller employers can effectively render themselves covered by the FMLA if they make certain representations about FMLA coverage to their employees. If they say the FMLA applies, then it does. That’s commonly referred to as coverage-by-estoppel.

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Q. One of my employees has informed me that she is about to begin undergoing in vitro fertilization (IVF) treatments. She requested some intermittent time off from work. Am I required to grant her request?

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Q. We provide a perfect-attendance bonus to any employee who is not absent or tardy during the calendar year. If an employee’s only missed time is for a medical leave of absence, does the FMLA require us to nevertheless provide the perfect-attendance bonus?

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