EMPLOYER-EMPLOYEE: THINGS YOU DIDN’T KNOW WHICH MIGHT KEEP YOU OUT OF COURT – PART II

This is the second blog offering five points which most employers and employees do not know which might keep them out of the court if they do.

“In my interviewing, as long as I’m asking the same questions of the white guy and the black guy and the Asian guy, it does not matter what I ask about.”  Wrong.  The general rule of thumb should be “If you don’t need to know, don’t ask.”  For instance, if you ask about present or past illnesses or disabilities, you may be engaging in disability discrimination.

“I know that if I fire an employee, I have to pay her what I owe her in 3 days.”  Not anymore.  If she was fired, you have 7 days to pay her.  If she quit, you can wait until her next paycheck.  But remember that the pay must include any non-discretionary benefits (like vacation or bonuses, as long as they were expected by the employee and not discretionary to the owner).

“Under the Constitution, what I have on my work computer is my business, not the employer’s.”  Wrong.  All communications and stored matter on and through your computer belong to the employer, not the employee, not matter how sensitive and personal.

“If an employee needs to care for a family member, I have no choice but to give them unpaid leave under the Family Medical Leave Act.”  Not true.  First, it is not just any family member: cannot be an in-law or even a step parent.  Also, the FMLA only applies to your company under certain situations, including over 50 employees.  The Act also applies to employees only under certain circumstances, including the requirement that the employee have worked 1250 hours of actual time (i.e., not PTO) during a prior 12-month period.  And the employer can require medical documentation of the condition’s seriousness before granting the leave.

I don’t have to put up with an employee who is constantly complaining outside of the company about discrimination.”  Think hard before letting that person go.  Both Arizona and federal law make retaliation against a whistleblower illegal.  For instance, the EEOC reports that almost 40% of its cases are brought against employers who retaliated against their whistleblowing employees.