In one recent case, an employee was disciplined several times for various policy violations. She was close to being fired on a few occasions, but managed to convince her supervisor to suspend her instead.

Eventually, she was fired after missing work — without authorization — because of knee problems. She sued the company, claiming the absence should’ve been covered by FMLA.

The company disagreed. Why? Because she wasn’t eligible to take leave. When all of her time was added up, it turned out she only worked 1,248.8 hours in the past 12 months — 1.2 hours shy of what FMLA requires.

The court agreed with the company, which had documented payroll records to support its argument. The woman wasn’t entitled to FMLA leave.

Cite: Pirant v. U.S. Postal Service

The employer could get in serious trouble, according to one recent court decision.

After an employee left for FMLA leave, the company reorganized her department to handle the workload while she was out. It turned out that the remaining employees were perfectly capable of getting all the work done.

So the company decided to eliminate the woman’s position and not bring her back to work.

Wrong move, said the judge after the employee took the company to court. Companies can only deny reinstatement when employees would’ve lost their jobs even if they didn’t take leave — for example, due to a reduction-in-force that was being planned anyway.

In this case, the court found that her termination was directly related to her use of FMLA — in other words, if she never took leave, she never would’ve been let go.

Cite: Stephens v. Neighborhood Services Org.

When employees make harassment or bias complaints, managers know not to retaliate. But too many make a mistake in the other direction — and avoid taking any action against the employee again, even when it’s well deserved.

When employees complain, does that mean they get a lifetime pass to avoid discipline or termination?

Of course not — they still need to face the consequences of poor performance or bad behavior, just like everyone else. But it does mean managers need to take some extra care when dealing with employees who’ve made legal complaints.

In one recent court case, a part-time employee filed a sexual harassment complaint. Her manager gave the accused co-worker a warning. The employee complained to her boss’s supervisor that more needed to be done, and the accused harasser got a second warning.

Shortly after that, the manager eliminated the employee’s position by combining it with another part-time job. She couldn’t work that many hours, so the other part-timer took the full position and the employee was let go.

She sued for retaliation. The company argued she would’ve lost her job anyway.

But the court ruled that the short time between the employee’s complaint and the termination — plus the fact that there was no documented evidence that the boss had considered combining the two jobs before the complaint was made — was suspicious enough to send the case to trial.

Cite: Magyar v. St. Joseph Regional Medical Center

Where do courts draw the line on retaliation?

In another recent case, an employee filed a complaint about harassment she claimed she witnessed against two of her co-workers.

Several months later, she was terminated. Why? She’d made several costly mistakes in her work. The company had to shrink her department and, based on her previous performance, decided she was the one to let go.

She sued, but the court ruled in favor of the company. The reduction-in-force was thoroughly planned and the woman’s slip-ups were well-documented. Therefore, it was clear she would’ve lost her job even if she didn’t make the harassment complaint.

Cite: Van Horn v. Best Buy Stores, L.P.

Lesson: Document, document, document

What set the companies apart in these two cases?

Answer: Documentation.

Courts look closely at the timing of companies’ decisions — if an employee’s disciplined or fired shortly after filing a complaint, it can be hard to convince a judge the decision was unbiased.

But as the latter case shows, it’s not impossible — as long as the manager keeps strong documentation.

In a recent court case, a department manager quit her job after being sexually harassed by her supervisor. She sued the company, claiming nothing was done about the harassment.

She never made a complaint or brought her boss’s conduct to the attention of anyone in the company. Her argument: Another department manager (her peer) witnessed the behavior. Therefore, she claimed, the company knew what was going on.

In court, the company argued otherwise. The alleged witness never reported the behavior, and the woman never did either. So the company had no responsibility to fix the problem.

The court agreed, and the case was thrown out. The key: No one in the company “at a managerial level equal to or superior to the harasser” was aware of what was going on.

Generally, if someone with decision-making authority over the accused employee knows about it and does nothing, the company will be on the hook. But in this case, it was just the victim’s co-worker who remained silent.

The company had a strong anti-harassment policy, which also required managers to report harassment they witnessed. However, if neither the victim nor the witness took any action, the company couldn’t be expected to either.

Cite: Chaloult v. Interstate Brands Corp.

Question: A full-time exempt employee recently started working a part-time job with us to pick up some extra cash. Is he still exempt?

Answer: That depends on the nature of his work. Employees are either exempt or nonexempt — they can’t be placed into two categories when they work two different types of jobs.

According to a Department of Labor Opinion Letter (FLSA 2005-14), the answer is based on the employee’s “primary duty.” In other words, if his main role is still performing exempt work, then he’s exempt across the board.

But if the primary duty is nonexempt work, then he gets overtime pay for hours worked in both jobs.

The National Labor Relations Board (NLRB) recently released some guidelines to clear up the confusion. Here’s what HR needs to know:

Some political activities are covered under the “mutual aid and protection” clause of the National Labor Relations Act (NLRA). In the words of the Supreme Court, that means activities workers participate in to “improve their lot as employees” — i.e., things that are directly related to working conditions, such as protesting laws that affect the employees’ jobs.

However, that doesn’t mean employees are allowed to break company policies, such as attendance requirements. So for example, coming in late or leaving early to go to an advocacy event is not protected, even if it was job-related.

The gist: Make sure managers are careful about disciplining employees for political activities, as long as they don’t break any rules or disrupt the work environment.

The can read the NLRB’s guidelines here.

Here’s an example of behavior that doesn’t make the grade, according to one court:

Two female graduate students at a theological seminary sued the school, claiming to have been sexually harassed by one of its employees.

Allegedly, the man had aggressively pursued both women romantically for a long time. Despite being consistently rejected, he repeatedly requested dates with them — even though his behavior never involved any sexual language, inappropriate touching or other characteristics normally associated with harassment.

When the seminary failed to stop his behavior, the women sued.

Was it harassment? No, the court said. While he annoyed the students and made them uncomfortable, his conduct wasn’t severe enough to hold the school accountable.

As the judge said: “Persons who are socially tone deaf are not, by that characteristic, necessarily the equivalent of sexual harassers. It is important in that regard that neither of these women used her authority to tell [the accused] to go away. They cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell [him] that they had no interest in him romantically or even as a casual acquaintance.”

Cite: Godfrey v. Princeton Theological Seminary

In one recent case, an employee with bipolar disorder sued his company after he was fired. The condition made him “irrational, delusional, and unable to communicate effectively.” When he had to be hospitalized, the company decided he could no longer do his job.

He sued, claiming the termination violated the ADA. The court agreed.

First, the court determined the employee was protected by the ADA. The bipolar disorder substantially limited several of his major life functions — specifically, the life activities of “thinking, communicating, interacting with others and caring for himself.”

Then, the court ruled that he could have performed his job with a reasonable accommodation — time off to get treated. Other courts have ruled that leaves of absence are considered reasonable accommodations for employees with psychological disabilities.

The case went before a jury, which awarded the employee a $91,000 payout.

Cite: E.E.O.C. v. Voss Elec. Co. d/b/a Voss Lighting

HR knows how tough enforcing company policies can be. But it can be even tougher to decide when you need to bend the rules to avoid a day in court.

For example, the EEOC recently filed a lawsuit against the Grand Central Partnership, a business coalition in New York City. The problem? A dress code policy requiring security guards to keep long hair tucked under their hats.

The suit involves four Rastafarian guards whose faith prohibits them from cutting their dreadlocks, which have become too long to fit under a cap. The employees were disciplined for breaking the policy, and two of them had been suspended.

They had asked if they could tie the hair behind their backs, but the company wouldn’t make a policy exception.

When company rules and employee beliefs collide

Only time will tell how the employer fares in this case. If recent decisions have made one thing clear, it’s that courts are reluctant to question the legitimacy of employees’ religious beliefs.

That said, there are many times when policies can be strictly enforced, even if workers claim they can’t follow them. Here are some questions your managers should be able to answer when an employee asks for an exception to the rules:

• Is safety an issue? – As a rule of thumb, safety trumps everything. Courts won’t require a company to do anything that jeopardizes the health of an employee or his or her co-workers.
• Is there a ‘business necessity?’ – Companies usually prevail when they can prove making an exception to the rules will affect their ability to conduct business. For example, many companies ban visible tattoos on employees who meet customers face-to-face. Employees with religious ink probably won’t have a case for an exemption, since courts have upheld rules that require a professional appearance in front of customers.
• Is the policy consistently enforced? – One thing companies can’t do is let a rule go unenforced and then come down hard on an employee who might have a religious bias claim. In one recent case, an employee was fired for failing to cover his faith-mandated tattoos — despite the fact that he’d worked for six months without being reprimanded, and other tattooed employees hadn’t been disciplined. After failing to get the case thrown out, the company paid a $150,000 settlement (Cite: EEOC v. Red Robin Gourmet Burgers, Inc.).

Congress recently approved a proposal to significantly overhaul the Americans with Disabilities Act.

The ADA Amendments Act will now reach the president’s desk. Earlier this week, the White House released a statement praising the bill and announcing that the president looks forward to signing it.

The changes, effective January 1, 2009:

• More “major life activities” — The bill gives a hefty list of examples of what’s considered a major life activity, which would expand the definition beyond what most courts have ruled. (The list of examples: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”)
• No mitigating measures — The amendments would also reverse a Supreme Court decision that allows the consideration of “mitigating measures” — i.e., medicine or equipment that lessens an impairment — when deciding whether an employee is disabled.
• Protection for conditions in remission — If a condition is in remission, the employee will still be ADA-protected if the condition would qualify as a disability when active.

For more on the ADAAA, go here.