HRM 593-NOTES

• b.A machine operator employee with a major depressive disorder intermittently takes leaves under the Family and Medical Leave Act, resulting in alleged harassment by her employer surrounding her FMLA usage as well as a ...

• b.A machine operator employee with a major depressive disorder intermittently takes leaves under the Family and Medical Leave Act, resulting in alleged harassment by her employer surrounding her FMLA usage as well as a transfer to various difficult machines after her return from leave. Two months after her last FMLA leave, she is terminated for “improper phone usage.” [Hite v. Vermeer Mfg. Co., 361 F. Supp. 2d 935 (S.D. Iowa, 2005).] It definitely seems as if the employer was out to get her. FMLA can be taken intermittently and that is something the employer needs to deal with. My question would be is there a discipline report of the "improper phone usage"? And, why was she continually being transferred to various difficult machines? FMLA means you have job security so moving her around doesn't make any sense. The employee liability in this case would be high, especially if they do not have the proper documentation to back it up. Employment at will Exceptions and Liability – (2) 1/6/16 Tyeisha, If there was no written policy in place regarding cell phone usage then how were the employees made aware of the policy? haha I don't see how they can terminate if there is no written policy in place and no records of discipline for the action. I'm sure the company did not like that the employee could be out intermittently for a total of 12 weeks. So, they chose to pin something on her in order to terminate. Layoff based on suspect performance evaluation violates FMLA. The law does not forbid layoff of an employee who is on FMLA leave if the action would have occurred anyway had he or she not been on leave. In Cutcher v. Kmart Corp. (6th Cir., 2010), an employee on FMLA was part of a workforce reduction. The company based layoffs on performance evaluations, and the plaintiff’s evaluation was low. However, the court found evidence to suspect the poor evaluation: It was done during the employee’s FMLA absence. She had received an “exceeds expectations” evaluation just four weeks earlier, immediately before taking FMLA leave. Obviously, her work performance could not deteriorate while she was not present at work, so the layoff evaluation seemed to be a pretext to eliminate a person who had exercised FMLA rights. http://www.diversityinc.com/legal-issues/you-can-get-fired-during-fmla-leave/ Employment at will Exceptions and Liability – (3) 1/7/16 The best reason an employer would move to a just cause policy is to increase employee retention and attract new hires. I wouldn't want to work for an "at-will" company, knowing that I could be canned for no reason at any time. Employment-at-Will simply means that the employer and employee have a working arrangement where either party can terminate at any time, with or without cause and with or without notice and regardless of the manner in which wages are paid. On the surface this seems to be the way most employer/employee relationships should be. The California Supreme Court argued when it defined Employment-at-Will in 1910 that, “Precisely as may the employee cease labor at his whim or pleasure, and, whatever be his reason, good, bad, or indifferent, leave no one a legal right to complain; so, upon the other hand, mat the employee discharge, and whatever be his reason, good, bad, or indifferent, no one has suffered a legal wrong. [Union Labor Hospital Association v. Vance Redwood Lumber Co., 158 Cal. 551,112, p.886(1910)\] In certain states and to some degree this remains true; however, over the years many exceptions have been made to the rule. Most of the exceptions can be categorized under three broad legal headings: public policy, implied employment contract and covenant of good faith and fair dealings. http://www.businessknowhow.com/manage/justcausevsfreewill.htm If an employer chooses to use the at will policy they need to have their ducks in a row and everything in writing to ensure their decisions are not challenged. Contract and Temporary Employees – (1) 1/5/16 1. I feel that Karen is an employee. The company started treating her like an employee when they assigned her regular tasks and changed her title to go along with other employees. If they look like an employee and walk like an employee then they should be an employee!! 2. Here is my rationale: Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security. http://www.dir.ca.gov/dlse/faq_independentcontractor.htm It does not matter that she was given a 1099 nor if there is a written agreement. Those are not determinatives! Other points to remember in determining whether a worker is an employee or independent contractor are that the existence of a written agreement purporting to establish an independent contractor relationship is not determinative (Borello, Id.at 349), and the fact that a worker is issued a 1099 form rather than a W-2 form is also not determinative with respect to independent contractor status. (Toyota Motor Sales v. Superior Court(1990) 220 Cal.App.3d 864, 877) http://www.dir.ca.gov/dlse/faq_independentcontractor.htm ..............................................CONTINUED.............................