Q: My company prides itself on its informal, relaxed atmosphere. When we are talking to someone we might hire, we always ask for a resume rather than having the person fill out a “one size fits all” job application. Is there any reason why we should change our practices? A: There are, in fact, several advantages to having all prospective employees complete an application. First, it assures that you obtain necessary information that may not have been included in the resume, such as telephone numbers of references and emergency contact information. Second, without an application, you miss the opportunity to have the background information, including degrees and certifications attested to under penalty of perjury. Such attestation might be very helpful in the future if there are problems with the employee. Third, an application is an opportunity for you to communicate certain company policies to the applicant, such as whether your company is an “at-will” employer or has a binding alternate dispute resolution policy.
Q: Our company and one of our managers were sued by a former female employee for sexual harassment. Must the company pay for an attorney to represent the manager even though we think the manager behaved egregiously? A: Your company is required to indemnify the manager for any losses resulting from the performance of his duties. If you feel his behavior was outside the scope of his duties and contrary to company policy, you could take the position that he must retain his own attorney. However, this may not be wise if you need his cooperation in defense of the company.
Q: I recently was served with a lawsuit brought by a former employee with whom the company had entered into a separation agreement. I checked with our bank and found that the former employee had cashed the check we had given him when he signed the agreement. He never tried to return the money to us. How can he bring a lawsuit in this circumstance? A: If your former employee was at least 40 years of age he could bring a claim of age discrimination against your company if the separation agreement he signed did not contain certain language and provided him seven days to revoke his agreement. The fact that he kept your company’s money will not invalidate his lawsuit on such a claim.
Q: An employee has requested the full 12-week allotment of family medical leave to care for a terminally ill parent. In reviewing her request, our office manager noticed a significant number of previous absences, totaling approximately four weeks, taken by the employee to care for her husband when he was recovering from heart surgery. Can we limit the amount of family leave she can take now to eight weeks, or a total of 12 weeks for both? A: First, you need to determine whether your company and the office manager are covered by the federal Family & Medical Leave Act. Your company is bound by FMLA regulations if it employs 50 or more people. FMLA allows employees who have worked at your company for at least a year up to 12 weeks of unpaid leave to care for an immediate family member with a serious health condition. If the leave being requested and the leave to care for the spouse took place in the same year you could limit the new request to eight weeks only if the original four weeks was designated as family leave. Otherwise, the employee is entitled to the full 12 weeks now. If your company or the employee are not covered by FMLA, you have no federal legal obligation to grant the leave. State laws may impose additional requirements.
Michael Drenan is an attorney specializing in employment law issues with the San Diego firm of Olivia & Drenan. Contact him at (858) 385-0491 or email@example.com.
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