Q & A: Don't Set the Company up for a Retaliation Claim


Question Corner

Don’t Set the Company Up for a Retaliation Claim

By Jason R. Mau

Q: An employee was recently injured on the job. We took him to a medical provider, who released him to full duty with no restrictions. However, the employee told his supervisor that he was in too much pain to work and left the jobsite. We want to terminate the employee for job abandonment. Would that be considered retaliation and/or discrimination?

A: If this employee was terminated for job abandonment under the circumstances described, the company’s actions may be very susceptible to a retaliation claim.  Workers’ compensation law prohibits, among other actions, a termination decision related to filing of a workers’ compensation claim.  The fact that the termination could be construed to be in close proximity to the claim or related to the employee’s injury could be held against the company should the employee pursue a retaliation claim. 

Q: We provide our maintenance staff with the required tools to perform their job. When they leave the company, they sometimes don’t return the tools to us. Are we able to tax the employees up front for the tools?

A:  An employer is allowed to prorate deductions for the cost of tools that are used for the benefit of the employer if the prorated amount does not reduce the employee’s earnings below the minimum wage and overtime compensation required under the Fair Labor Standards Act (FLSA).

Q: We have an employee who claims he is too large for a regular airline seat, so he has been buying first-class tickets. We are sending him out on company business, but we didn’t know he was doing this. May we tell him he must fly standard seating?

A: The law does not prevent you from requiring your employee to fly standard seating.  It appears that he is purchasing first-class tickets for convenience purposes only and has not requested the employer provide the tickets as some sort of accommodation.  Regardless, the Americans with Disabilities Act (ADA) does not grant protection solely on the basis of obesity; there must, at the very least, be a related physiological disorder or condition affecting the employee to be eligible for protection. 

Q: We would like to implement a program in which we would offer a financial incentive to employees whose spouses waive coverage in favor of their own employer’s plan. Our director is concerned about how the Equal Employment Opportunity Commission (EEOC) might view this since married employees would be offered an opportunity to get money but not single employees. Is this viewed any differently than the spousal surcharge in which singles benefit more than married employees?

A: While there may be procedural issues or a cost benefit analysis to consider before implementing such an opt-out or cash-in-lieu policy, there are specific steps under the law that allow you to do this without violating the federal laws overseen by the EEOC.

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