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Don’t Golf During Intermittent FMLA Leave

By Cary Schwimmer |

Employee abuse of intermittent FMLA leave is a continual problem for many employers.  When an employee seeks intermittent FMLA leave for their own health condition, the U.S. Department of Labor’s Certification of Health Care Provider form requires the provider to specify the need and schedule for follow-up treatments, and the reason, frequency, and duration… Read More »

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6th Circuit – Employer’s Statements Regarding Consequences of Unionization were Lawful

By Cary Schwimmer |

Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees the right to form, join or assist labor unions and to collectively bargain through unions.  NLRA Section 8(a) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in” Section 7…. Read More »

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A Reminder about Retaliation

By Cary Schwimmer |

Every anti-discrimination statute contains a provision prohibiting the employer from retaliating against an employee for making an internal complaint of discrimination, filing a discrimination charge with the federal Equal Employment Opportunity Commission (EEOC) or similar state or local agency, or testifying, assisting or otherwise participating in an agency or employer investigation, proceeding, or hearing… Read More »

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Sixth Circuit: FMLA Does not Require Retroactive Designation of Absences as FMLA-Covered or Allowing Late Call-Ins or Tardiness

By Cary Schwimmer |

On March 19, 2019, in Njaim v. FCA US LLC, Case No. 18-3831, the Sixth Circuit U.S. Court of Appeals, whose jurisdiction includes Tennessee, rejected an employee’s claim that his termination due to absences and tardies constituted unlawful interference with his right to take FMLA leave and retaliation for his exercise of that right,… Read More »

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U.S. Court of Appeals: An Employer Circulating or Acting on False Rumor that Female Employee Slept with Boss to Obtain Promotion Constitutes Sex Discrimination

By Cary Schwimmer |

Parker v. Reema Consulting Services, Inc., Case No. 18-106, decided by the Fourth Circuit U.S. Court of Appeals on February 8, 2019, involved a female Virginia warehouse employee, Parker, who was promoted six times from low-level clerk to ultimately becoming the facility’s assistant operating manager.  Parker’s federal district court lawsuit alleged that about two… Read More »

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Independent Contractors Agreement

Sixth Circuit: The Importance of Independent Contractor Agreements for Claiming Independent Contractor Status

By Cary Schwimmer |

Whether someone performing work for a company is an independent contractor rather than an employee has a significant impact on the business. For an employee, the company must withhold income tax, Social Security, and Medicare from wages paid, pay overtime, provide workers’ compensation coverage, and the individual must be covered under the employer’s employee… Read More »

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Sixth Circuit: ADA Does Not Require “On-The-Spot Accommodations” of the Employee’s Choosing

By Cary Schwimmer |

On November 30, 2018, the Sixth Circuit U.S. Court of Appeals held that an employer did not violate the Americans With Disabilities Act by sending an employee home while engaging in an interactive process with her regarding possible accommodations, rather than immediately placing her in a job within her doctor’s work restrictions.  In Brumley… Read More »

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Department of Labor – Ok to Freeze Attendance Points During FMLA Leave

By Cary Schwimmer |

Employers are by now very familiar with the federal Family and Medical Leave Act (FMLA) and its requirement of generally twelve weeks of unpaid leave for various personal and family health and other reasons.  Employers also well know that FMLA absences cannot be counted against an employee under the employer’s attendance policy.  A somewhat… Read More »

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Some Very Expensive Tennessee Orange Juice

By Cary Schwimmer |

Linda Atkins was a sales associate at a Knoxville, Tennessee area Dollar General who suffered from type II diabetes.  In the past, when Atkins experienced hypoglycemic episodes at work, she attempted to raise her blood sugar level by excusing herself to the break room to drink her own orange juice which she kept in… Read More »

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Sixth Circuit: Full-Time Employees with Disabilities May be Entitled to Work Part-Time as Long as They Can Complete their Job Duties

By Cary Schwimmer |

I have previously spoken and written about the Americans with Disabilities Act’s (ADA) requirement that employers consider additional leave as a reasonable accommodation for employees with disabilities who are not yet able to return to work and who do not have FMLA or other additional leave available.  On July 17, 2018, the U.S. Court… Read More »

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