Client Newsletter
What Happens In Vegas Doesn't Always Stay In Vegas...

Your company sent Raymond, its top sales executive, on a four-day business trip to Las Vegas. After work on the second day, Raymond visited a licensed brothel in a nearby town after work and charged the "fees" to the company credit card. It is against company policy for employees to use the company credit card for personal, non-business purchases. 

Later that evening, Raymond was arrested a nd incarcerated for being under the influence of illegal controlled substances. As a result, he missed a meeting with important clients. The clients withdrew a large account, which cost your company thousands of dollars in lost revenue.

How should you handle this issu e? 
  1. Terminate the employee for being under the influence of drugs and getting arrested.
  2. Terminate the employee for visiting a brothel.
  3. Terminate the employee for charging unauthorized, non-business related expenses on the company credit card and for missing the meeting with important clients.
  4. All of the above.
Scroll down to find the answer.
Upcoming Webinars

Tips for a Slip, Trip and Fall-Free Work Day

Friday, August 5th - 12:00 PM CDT

Cluttered walkways, wet floors and unsafe behaviors make navigating the workplace a slippery proposition. In fact, slips, trips and falls are the second-leading cause of workplace injuries. Tune into this webinar for practical tips on keeping your employees' feet on solid ground.

Interviewing and Hiring

August 10th - 2:00 PM CDT

Numerous state and federal laws prohibit hiring discrimination. These laws also allow job candidates who win lawsuits to collect substantial damages from organizations like yours. Equal employment opportunity policies are only the first step in preventing hiring discrimination. 

In this session, we will look at: 
  • Fair employment laws and company policy;
  • Writing and using job descriptions;
  • Composing unbiased job advertisements;
  • Conducting nondiscriminatory interviews;
  • Choosing appropriate pre-employment tests; and
  • Checking and documenting references.

The Answer is C!


Disciplining an employee for behavior that does not affect the workplace is difficult to justify. Without a clearly stated policy, Raymond cannot be terminated simply because he used drugs, visited a brothel, and/or was arrested. These events alone do not impact the workplace. However, he can be terminated for the effect those actions had on the workplace (i.e. missing the meeting and improper use of the company credit card). 

Many states have strict privacy laws and other laws that protect the personal behavior an employee engages in outside of the workplace. When an employee engages in misconduct during his free time that does not impact the workplace, the employer has little ability to discipline the employee for that misconduct. This is true even when the employee is on a business trip. 

If an employer wishes to control an employee's behavior when he is representing the company during off-duty hours, a specific policy or agreement should be in place outlining company expectations and stating that any violations will result in termination. Employers should limit the use of such policies/agreements to the rare instances when the employer may be held liable for an employee's actions. Always consult with a qualified employment attorney for assistance in preparing those documents. 

Absence Makes The Heart Grow Fonder...NOT In Employment!


It is a familiar workplace situation. A company has an employee, John, who is well - liked by management. There are no documented performance problems and John ' s performance evaluations are always positive. From an outside perspective, John is a model employee.

John goes out on federal family medical leave (FMLA leave, a protected leave of absence), and the company hires a temporary employee (John 2.0) to fill the position. In John ' s absence, John 2.0 excels in the position. He is more efficient than John, he makes fewer mistakes, and he turns in a better work product. After a few short weeks, the company learns that John was not performing all of his assigned duties, while John 2.0 easily completes the assigned tasks and has time to help others.

As time passes and more of John ' s shortcomings are uncovered, the company finds itself more and more displeased with John as an employee and more enamored with John 2.0. Now, with John ' s return to work eminent, the company wants to terminate John for poor performance and upgrade to John 2.0.

What should the company do?
Before giving into temptation, the company must remember that the Family Medical Leave Act (FMLA) gives John certain reinstatement guarantees. Prior to taking any action against John, the company must familiarize itself with its reinstatement obligations under the FMLA.

Upon return from FMLA leave, John must be restored to his original job, or to an "equivalent" job. While this seems to imply the company can retain John 2.0 and simply place John in an " equivalent " position, it is not that simple.

An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and other terms and conditions of employment. The equivalent position must have virtually identical job duties, working conditions, responsibilities, privileges, and status as the employee's original position.

With these restrictions, it is clear that the company does not have much flexibility returning John to a different position. The mere fact that the new position offers the same pay, benefits, and even title as the old position is not sufficient to meet the " equivalent position " standard if the job itself is different. For example, if the new position requires different skills, eliminates skills previously required, offers fewer opportunities for advancement, and/or includes different duties, there is a risk that the position w ould not meet the standard.

What is the best course of action?
The company should not give into the temptation and " upgrade " to a newer model. Instead, John should be restored to his former position and held accountable for his performance deficiencies. Upon his return from leave, the company should meet with John and talk about the problems that were discovered during his absence. The company should place John on a performance improvement plan and John should be given a fair opportunity to correct his performance.

Note: While this article focuses on an employee ' s reinstatement rights under the FMLA, employers must remember that in addition to the FMLA, there are many other federal and state leave laws (e.g. state FMLA, pregnancy disability leave, workers' compensation leave, disability leave, military leave, etc.) that have their own provisions regarding an employee ' s reinstatement rights. Before taking any action regarding an employee ' s reinstatement following a protected leave, employers must review the reinstatement obligations under all applicable state and federal laws. 

My Disability Made Me Do It!
Dale is a recovering alcoholic (sober 6 months). He ' s been a chef at The Cabana Grill for 4 months.

Dale uses profanity in the kitchen and many employees have complained to Gina, the HR manager. But Dale blames his outbursts on stress related to his recovery from alcoholism and just needs time to adjust. So far, Gina has not disciplined Dale for his misconduct.

The problem is, Dale ' s outbursts have increased and it ' s affecting morale. Gina doesn ' t know what to do, fearing disciplinary action may be discriminatory. Gina just got a call from Chip, a meat vendor. Chip says that Dale demanded free steaks. Chip refused, and Dale cursed and threatened to " kick his ass ".

Dale admits he " lost his temper " with Chip and blames his alcoholism. Gina says Dale ' s conduct is unacceptable, and if it were any other employee, they would be terminated. Company policy prohibits threats of violence, and the restaurant has consistently terminated employees who have made threats of violence at work.

Before firing Dale, Gina called us. We advised that termination is appropriate in this situation. The EEOC states " an employer may hold the individual to the same conduct standards that it applies to all other employees. "

Federal and state laws provide protections to disabled employees, but don ' t protect deliberate employee misconduct.

Caveat: Before terminating a disabled employee, always talk with us or your employment attorney. 

3 Management Mistakes To Avoid
Everyone makes mistakes, but some mistakes can cost more than others. Avoid the following mistakes at all costs!

I. Unlawful Interview Questions

Questions asked during the pre - hiring process should be relevant to the job. Don ' t ask about characteristics protected by law, such as age, race, criminal records, or credit history. Avoid these kinds of questions:
  • "What year did you graduate?",
  • "Do you have any criminal convictions?",
  • "What's your credit score?",
  • "Have you ever filed a workers' comp claim?"
II. " Sugar Coated " Performance Reviews and Write - Ups

Performance reviews and write - ups are the documented history of an employee ' s competence and conduct. Sugar coated reviews that ignore poor performance leave no evidence to support a termination later! If you terminate an employee without documentation of the reason for termination, the employee may claim the real reason was discriminatory or unlawful.

Honestly evaluate performance and give specific examples of unacceptable behavior and its consequences.

III. Rash Termination Decisions

Employers who terminate " in the heat of the moment " often miss " red flags " that may lead to a lawsuit.

Suspend the employee with pay pending an investigation, and take the opportunity to look for Red Flags and consult with your HR Professional.

LTD Coverage Extras!
With the summer months arriving, Unum wants to remind you and your employees about Worldwide Emergency Travel Assistance (Assist America).  This is a value-added service that comes with your Long Term Disability coverage. Please pass this valuable information along to your employees so they can have peace of mind this summer.

Safe Travels!

No matter where you are in the world, you will always get the care you need, including:

Immediate contact with experienced clinicians. We have physicians, nurses and emergency medical technicians (EMTs) on staff and on call 24 hours a day, as well as medically certified, multi-lingual staff. So whenever you contact us, you are assured of immediate expert consultation about the best course of action.

Prompt medical attention whenever you need it. If you need to be seen, we will quickly connect you with a capable physician or other healthcare provider who can evaluate your situation more fully and either provide the care you need or refer you for further treatment.

Immediate admission to a fully qualified hospital. You don't need to worry about having sufficient funds on hand or the right insurance card. We will take care of any issues that might interfere with your prompt admission to a reliable hospital.

Medical evacuation. If there is no hospital nearby that meets our rigorous standards, we will transport you, with appropriate medical care and at no charge, to the nearest suitable facility.

Expert monitoring of your treatment for as long as you need it. We stay in constant communication with both you and those who are treating you to ensure that you receive the best possible care at every stage of your treatment and recovery.

Help returning home. If you need medical care to travel, we will arrange appropriate transportation to a sub-acute or rehabilitation facility, or to your own home.

And much more!

HR Liable for FMLA Violations

US Supreme Court Confirms Donning and Doffing Claims are Expensive

Click on any of the above topics to link to the full article or

Click on any of the states below to learn more.

Expands Paid Sick Leave Requirement 

DLSE Sheds Some Light On California's Equal Pay Act 

Reasonable Accommodation Required For Disability Of A Worker's Family Member?

Remain Seated Please...Permanecer Sentados,Por Favor

The Right To Inspect Personnel Files

The Next State To Join The Equal Pay Bandwagon? 

New Law Limits Joint Employer Exposure For Franchisors

The Impact of New Religious Freedom Law On Employers

2016 - 2017 Budget Includes Paid Family Leave

Outside Salespeople and Minimum Wage

Medical Marijuana Act Signed 

Computer Technicians Must Report Child Pornography


Phantom Employees

Store manager, Christine, is under pressure to reduce costs. After some brainstorming, she decides to lower costs by hiring "phantom employees."

Under the new policy, all hourly employees clock-in with a different identification number after meal periods. This new ID number is associated with a falsified name, so it appears that a new employee has begun their shift.

The employees receive straight-time pay for all hours worked under both ID numbers. They do not receive any overtime pay because while the employee may have worked overtime, the timekeeping system does not aggregate the hours worked under each ID.

Manipulated Timecards
River Factory has incurred thousands of dollars in meal period violation penalties. Manager, Harold, tries to solve the problem by reviewing all employee timecards. Every time he sees a missed, late or short meal period, he manually adjusts the timecard to include a properly timed meal period. On paper, it looks like he solved the problem!

However, a few months later an audit reveals an unusually high number of adjusted timecards, and the owner discovers Harold's timecard manipulation.

A Win-Win Solution
Birdie Studio needs to reduce overtime costs. General manager, Kim, knows that the company can't make its deadlines if employee hours are reduced, so she comes up with a creative solution.

She instructs employees to clock-out when they are eligible for overtime pay-but to keep working! Employees are then paid cash "under the table" at their regular hourly rate for the remainder of their time.

Employees aren't taxed on their "under the table" wages, and the company saves money on overtime. Eventually though, a new employee files an unpaid overtime claim with the state labor board.

All of these "creative" managers were terminated for implementing their wage and hour "solutions." But, the companies were still exposed to potential wage and hour claims.

To reduce your organization's exposure to these costly claims, consider taking the following steps:

  • ´ü┐Educate your managers. Managerial staff should have a basic understanding of the applicable wage and hour laws in their state. Train your managerial staff on these laws to avoid compliance issues.
  • Trust, but verify. Do not assume your managers are following company policy or wage and hour laws. Conduct regular audits of employee lists, timecards and payroll records to verify that your company is compliant with applicable laws.
  • Seek a second opinion. Before making any change to a wage and hour practice, consult with an HR Professional to verify that your change is compliant with applicable law.
Remember that owners, supervisors and even HR Directors can be held personally liable for wage and hour violations. It is in your best interest to ensure that your company's wage practices are compliant with state and federal law. 


Main Office: 214-771-4411

HR / Background & Drug Screens: 
Benefits Questions:
Workers' Comp & Certificates:
Accounting Issues:
Tax Questions:

Resourcing Edge
info@resourcingedge .com

Sharp people, sharp solutions.