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Ask the HR Expert: Employment Law

Posted by NEHRA  January 8, 2010 09:00 AM

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Q. A married couple is employed by the same employer. The wife is expecting a baby. The question is, are both employees entitled to 12 weeks of FMLA/MMLA?

A. The Family Medical Leave Act (“FMLA”) regulations address this issue in 29 CFR 825.120(3). Parents who are employed by the same employer are entitled to a combined twelve weeks of leave. This allotment may be shared between the parents at their discretion. This limitation applies even where the husband and wife work at different locations or in different departments of the same employer.

It is also notable that if one of the parents is ineligible for FMLA leave, the other is entitled to the entire twelve week period. Furthermore, if the parents split the twelve week period, then each parent is still entitled to the difference between the amount taken and twelve weeks, which may be used for other FMLA purposes. For example, if a mother uses only eight weeks of leave and the father uses the remaining four weeks, the mother is entitled to four weeks of FMLA leave for other FMLA purposes (for example, for her own serious health condition or to care for a family member who has a serious health condition). Likewise, in this scenario, the father would be entitled to eight weeks of leave for other FMLA purposes.

The Massachusetts Maternity Leave Act (“MMLA”) provides maternity leave only for women. Women who take time off under the MMLA are entitled to eight weeks of leave. A woman’s leave for birthing or caring for a newborn may count simultaneously against her twelve week FMLA leave and her eight week MMLA leave. Since they are not covered by MMLA, men are not entitled any leave under the Act. However, the Massachusetts Commission Against Discrimination (“MCAD”) has opined that implementing the MMLA in a manner that fails to provide equal benefits for male and female employees could result in sex discrimination under federal law. To avoid potential discrimination claims by male employees, some employers offer men the same parental leave benefits as women. In that event, the married couple in your example would each be entitled to 8 weeks of parental leave each (leaving 4 weeks of FMLA eligibility to be used for other purposes).


Q. Is there a "statute of limitations" as to how long after incident that a company could terminate an employee for an action? For example, if an employee sent an email more than 3 months, 6 months, a year ago, is there a limitation as to when they could be penalized up to and including firing?

A. The appropriate timing of discipline depends on the specific circumstances. If there is an employment contract, collective bargaining agreement, handbook provision or policy that addresses this issue, then the employer should adhere to any such deadlines when administering discipline. In contrast, if the employment arrangement is at-will and there are no contractual or other policy deadlines, the employer will not be bound by a specific time period within which it must take action in response to employee misconduct.

Even without a fixed deadline, it is recommended that employers take disciplinary action soon after the misconduct. Generally, the greater the delay between the conduct in question and the disciplinary action, the higher the likelihood that the action might be viewed as a pretext for discrimination or as retaliation. When there is a delay, employees may tend to doubt the necessity of the discipline and may question the supervisor’s motives.

Despite a company’s best intentions, delays do occur and sometimes there is a lag between the employee’s misconduct and the eventual discipline. For example, a supervisor may respond with verbal counseling immediately after the incident but may not get around to documenting it in writing until later, sometimes after a second or third similar incident has occurred. The employer should carefully analyze the reasons for any temporary inaction. Was the delay caused by HR or the supervisor? If there were legitimate business reasons for the delay, those reasons should be documented when delivering the performance warning or notice to the employee. Also, if the employee has exhibited a pattern of poor conduct or performance, the employer should note any prior incidents in the warning, even if those incidents were addressed only though verbal counseling. If the delay is caused by the employer discovering the misconduct some time after it occurred, it is usually appropriate to discipline the employee as soon as the problem comes to light. In your example above, if an employee sent an inappropriate email to a co-worker (perhaps in violation of your anti-harassment policy) 3 or 6 months ago, but the recipient of the email just recently reported it to HR, it would be appropriate to discipline the sender now. However, at times, the employer simply may have to forego disciplinary action when there is excessive delay in responding to the misconduct. One common scenario provides a good example. A supervisor may overlook a series of minor infractions by an underperforming employee but still become increasingly frustrated with the employee over time. The supervisor then may try to mete out discipline for the infractions that were initially overlooked, once the supervisor reaches his or her limit. The employer should carefully consider whether any discipline is warranted in this scenario, or whether performance coaching (in an evaluation or other format) is a better approach. A long delay may suggest that the incident was not serious enough to warrant immediate action.

When in doubt or faced with a novel disciplinary issue, we recommend consulting with an employment law attorney to ensure that you are not running afoul of the law.


Q. Is a signed termination letter necessary for at-will employee or can you terminate verbally? Is there any law against verbal termination?

A. In Massachusetts, there is no requirement that a signed termination letter be used to terminate an at-will employee. There is no law against verbally informing the employee that he or she has been terminated.

Many employers nevertheless choose to use termination letters because this is a straightforward way of documenting that termination has occurred and that the employee has been notified. If the employee is not properly notified, then he or she may have a right to continue receiving pay.

Employers typically place a copy of the termination letter in the employee’s personnel file. If the employer chooses to use a verbal means of ending the employment relationship, he or she would be well advised to document the termination with a memorandum and place that in the personnel file in place of a letter.


Q. While interviewing with a Mass based employer, the HR rep asked repeatedly about whether or not there would be any issues with a spouse's employment or taking the kids out of school - a roundabout way of asking about marital/family status. Is this acceptable?

A. The questions seemed sufficiently off-base that they raised your suspicion about an inappropriate bias, and for that reason alone, they probably were a bad idea. The employer should know, too, that you have good authority for your suspicion. The Massachusetts Commission Against Discrimination (MCAD) explains in its regulations (at 804 C.M.R. §3.01) the following:

As a general rule, an employer may seek information which is directly related to the applicant's ability to perform
the job for which he or she is applying. As a general rule, an employer may not make inquiries, the response to
which would likely disclose the applicant's protected class status. An employer may invite applicants to voluntarily
disclose their protected class status for purposes of assisting the employer in its affirmative action efforts.

A reference chart that the MCAD includes in these same regulations (at 804 C.M.R. §3.02) also explains the following. First, while questions about sex or gender generally are not allowable, “questions regarding gender may be permissible if they relate to a bona fide occupational qualification, which has been ruled to be a legitimate requirement for a particular position, as provided in 804 CMR 3.01(3)(b)3.” Second, among the generally unacceptable inquiries that an employer should not make are “[i]nquir[ies] into an applicant's maiden name or any question that pertains to only one sex (for example inquiries into marital status only asked of women)” and “[i]nquiries into whether [an] applicant has children, plans to have children, or has child care arrangements.”


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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).

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