Q & A: Been Caught Moonlighting


Question Corner

Been Caught Moonlighting

By Jason R. Mau

Q: We have an employee who is on Family and Medical Leave Act (FMLA) leave to care for his daughter. He was recently seen refereeing a school basketball game (his second job). Do we have grounds to request that he return to work?

A: Under the FMLA, the workweek is the basis of leave entitlement.  He is being provided job protection for taking care of his daughter during those times he would normally be required to work under your attendance policy.  Thus, as long as he was seen at his second job outside his regular workweek, that would not be a legal basis to interfere with his leave.  Further, the FMLA regulations state that the employee need not be the only individual or family member available to care for the daughter, so it is entirely possible, and permissible, that he is the caregiver during his normal working hours and someone else is during other hours. 

Q: If staff volunteer to go out of town for training, do we have to pay travel time or overtime? We pay for flights and the hotel, give them a stipend, and pay their regular wages while attending the training.

A:  Even though the staff volunteers for the training, the training must also have no relation to the job and be outside regular working hours to avoid the overtime requirements of the Fair Labor Standards Act (FLSA).  As for travel time, under these circumstances, as long as the travel time is not during normal working hours or corresponding hours on nonworking days, you will not need to pay the travel time.     

Q: We have an employee who works in a small office that is shared with other workers. His coworkers have complained about his personal hygiene and can’t stay in the enclosed space for long because of the odor. His supervisor discussed the issue with him, and his solution was to mask the body odor with body spray, which just made the situation worse. Are there any further actions we can take?

A: As long as there is no possibility that his condition is related to a religious practice or caused by an underlying medical condition that would prompt protection (i.e. accommodation) under the Americans with Disabilities Act (“ADA”), the best way to resolve the issue is to proceed with reference to the company’s dress and grooming policy.  If your company does not have a dress and grooming policy for reference, it is recommended that you proceed carefully with any disciplinary actions, making a clear written record in your files of the distractions it is causing to co-workers and the overall effect it may be having on workplace morale and the opportunities given to the employee to remedy the distractions.

Q: Can we require an employee to work overtime? We currently have an eight-hour shift that we would like to expand into a 10-hour shift for approximately three weeks to help cover someone who is out on leave.

A: Under the FLSA, as long as the employees are being provided with overtime pay, there is no limit for the number of hours employees aged 16 and older may be required to work.  However, be careful that the additional hours do not interfere with any other employee’s accommodations allowed for a disability under the ADA, and be aware that an employee may use FMLA leave in lieu of working required overtime hours if the employee has an applicable medical certification.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.