Ralph Peterson — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Ralph Peterson

Employers and HR professionals hear it all the time: You must be prepared to preserve relevant documents and produce them if you are sued. You can take some preparatory steps to ensure that you can comply with inevitable litigation holds and are proficiently primed to assist your attorneys should litigation occur. This list of 22 to-do’s can guide your document and data preservation and retention procedures:

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Q. If an employee is on FMLA paid sick leave, can we stop her from accruing sick leave while out?

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There may be a ticking time bomb lurking in your employment policies and practices. It may go off at any time, when you least expect it. During its most recent term, the U.S. Supreme Court unanimously ruled that employers can be held liable upon the use of employment practices that have a disparate impact on employees, no matter how long ago the challenged practice was adopted.

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Q. We are a private company that provides services under contract to a subdivision of the state. Normally, before any tort lawsuit has been filed against us related to our services to the state agency, we have received a pre-suit notice as required under Section 768.25, Florida Statutes, to trigger a waiver of sovereign immunity. A former employee has brought a lawsuit against us, alleging that his discharge was unlawful workers’ compensation retaliation under Section 440.205, Florida Statutes. However, he never sent us a pre-suit notice for this statutory tort. Can we get the case thrown out?

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Q. One of our security employees uses a hearing aid. He could not pass the unaided hearing requirements of his job. As a result, we let him go. His layoff occurred in 2007, when he first brought a claim for an alleged violation of the ADA. He claims that with the subsequent adoption of the ADA Amendments Act of 2008 (ADAAA), an employer is not allowed to consider mitigating measures in determining whether an employee has a disability. Can the ADAAA be retroactively applied so he is deemed to have a disability under the ADA?

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Q. We had to lay off an injured worker for economic reasons. He has not attempted to work for a year since that layoff. Will he be entitled to temporary benefits under the Florida Workers’ Compensation Act?

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Q. Our company was a general contractor on a construction job. A subcontractor performed the electrical work. One of the subcontractor’s workers was injured while leaving the construction site. The subcontractor has denied compensability of the workers’ compensation claim, saying that the accident wasn’t within the course and scope of employment. The worker is now threatening to sue us for negligence. Can he do that?

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Q. If an employee owes us money, can we collect it through deductions from his wages?

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Q. Our company was a general contractor on a construction job. A subcontractor performed the electrical work. One of the subcontractor’s workers was injured while leaving the construction site. The subcontractor has denied compensability of the workers’ compensation claim, saying that the accident wasn’t within the course and scope of employment. The worker is now threatening to sue us for negligence. Can he do that?

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Q. We had to lay off an injured worker for economic reasons. He has not attempted to work for a year since that layoff. Will he be entitled to temporary benefits under the Florida Workers’ Compensation Act?

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Q. We have an employee who tells his boss he has finished projects when he really hasn’t. Frankly, half the time we don’t believe him when he says something. What can we do?

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Q. We have an employee who will soon go on temporary military duty and be gone for several weeks. Do we have to pay him at all during his absence, or does he receive military pay?

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With the enactment of the Franken Amendment to the Defense Appropriations Act for FY 2010, Congress and the Obama administration have begun an assault on employers’ use of mandatory arbitration as an alternative to court trials for resolving workplace disputes and claims. Employers have been asking whether other alternatives to jury trials will exist in the absence of arbitration. One alternative that companies can consider: entering into waivers of civil jury trials with their employees.

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Q. We have an employee who will soon go on temporary military duty soon and be gone for several weeks. Do we have to pay him at all during his absence, or does he receive military pay?

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Q. One of our employees sometimes sends offensive jokes to her fellow employees from her home e-mail account. We’re worried that someone may take offense and sue for racial or other harassment. What can we do if she’s sending this from home?

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Q. We recently heard from a co-worker that an employee (“Mike”) seemed to be having some health issues. Mike hasn’t said anything to his supervisor or anyone else as far as we know. What can we say?

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Q. Our break/locker room is located upstairs. We have several employees (age 66 to 77) who are having trouble climbing the steep stairs due to advancing age. We’re afraid they’ll fall. They all say they’d crawl up the stairs before they quit.

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Q. If union organizers show up during the workday and demand to talk to my employees, can I tell them to get off company premises?

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Q. Our pay stubs currently list employees’ available vacation, sick and other leave hours. Our new software allows employees to log in and check that balance anytime. Can we eliminate that information from the pay stubs?

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Q. We are in the travel business and our office regularly receives free tickets to sporting events (worth $30 and up). We typically give them to employees who want to use them. Is such a gift ethical?

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