LEGAL RIGHTS IN THE WORKPLACE: WHAT EMPLOYERS NEED TO KNOW

Attorney Jennifer M. Krueger
Murphy Desmond S.C., Lawyers

Employers are accustomed to challenges from competitors, customers and the marketplace. But employers may be surprised by the challenges stemming from their own employees. There is a mountain of federal and state laws that regulate an employer's relationship with its employees. Knowledge of these laws may serve to avoid costly litigation and improve employees' morale. This article is a sampling of common employment questions and answers.

I want to terminate an employee for his continuous use of profanity while on the job. May I terminate his employment without getting sued?

The answer to this question depends on whether the employer and employee have executed an employment contract. An employer must abide by the termination procedure outlined in the employee's employment contract or handbook. For example, the contract or handbook may require that the employee be given notice of his offending behavior before the employer may terminate the employee. If the employee does not have an employment contract or handbook, the employee will generally be considered an "at-will employee". An at-will employee does not have a property interest in his or her job and may be legally terminated without cause if the reason for termination does not violate public policy (i.e. discrimination).

I am the owner of a large business that employs 250 people. An employee alerted me that he would like to take four weeks off of work following the birth of his child. My business is extremely busy at the time of his requested leave. Do I have to grant the employee's request?

The Family Medical Leave Act ("FMLA") requires an employer to allow both male and female employees to take a specified amount of unpaid leave from his or her employment for the birth or adoption of a child and certain medical needs. The FMLA applies to employees that have worked full-time during the twelve month period preceding the leave and employers with at least fifty permanent employees. If you and your employee meet the above qualifications, FMLA applies and consequently, you are required to grant your employee's request for four weeks leave.

An employee requested to see his personnel file. Do I have to show the employee the contents of this file?

An employee has the right to view and copy his or her personnel records. Personnel records are defined as documents used to determine qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action and medical records. However, personnel records do not include documents relating to an investigation of the employee's criminal offenses, reference letters, exams, staff management planning documents, confidential information involving another employee or records relevant to a pending claim between the employer and employee that may be obtained through the judicial proceeding.

What questions may an employer ask to an applicant with a disability?

The Americans with Disabilities Act ("ADA") makes it unlawful to discriminate in employment against a qualified individual with a disability. An employer may not ask an applicant whether he or she is disabled or inquire about the nature or severity of the disability. However, you may ask the applicant whether he or she can perform the duties of the job with or without reasonable accommodation. You may also ask the applicant to describe or demonstrate how the applicant will perform these duties of the job.

A potential employer contacted me regarding a reference for a terminated employee. The terminated employee was lazy and rude. How should I respond to potential employer's questions about the terminated employee?

When a potential employer calls for a reference about a terminated employee, it is important for an employer to be truthful without subjecting itself to a defamation lawsuit. Some employers find a balance in these instances by only disclosing the terminated employee's dates of employment, job title and final salary to prospective employers. Any further comments should be limited to accurate and well-documented information.

Where can I find additional employment law resources?
The United States Department of Labor (www.dol.gov) and the Wisconsin Department of Workforce Development (www.dwd.state.wi.us) have websites with helpful information. In addition, consider talking to an attorney to receive legal advice specific to your situation.

Jennifer M. Krueger is an attorney with Murphy Desmond S.C., Lawyers, Madison, Wisconsin practicing in the areas of general business law and taxation.