Yes, but only sporadically, advises labor and employment law attorney Jeff Nowak, who notes he's fielded this question from several employers recently.
But the emphasis needs to be on very occasional.
Generally, courts have deemed an employee's response to occasional job-related calls and e-mail a "professional courtesy."
Wrote Nowak on the FMLA Insights blog: In a nutshell, an employee is unlikely to establish an FMLA interference (the idea that the employer is denying the employee FMLA benefits to which he or she is otherwise entitled) claim simply because he or she responds to some e-mail and a few phone calls during leave.
In 2009's Reilly v. Revlon, a federal court found that the makeup company did not violate a worker's FMLA rights by asking her to pass on "institutional knowledge" or provide closure to work assignments while on leave. In the case, Lisa Reilly–who took FMLA leave after giving birth in September 2005–alleged Revlon interfered with her leave by forcing her to work from home. She pointed to the fact that Revlon had provided her with a cell phone, computer and an Internet connection.
"But plaintiff's few documented work-related communications with Revlon employees during her leave do not rise to the level of FMLA interference as a matter of law," observed the court.
Nowak said that even if the employer doesn't know the employee is taking a call or answering the occasional e-mail– like if an eager beaver employee is working behind your back–it's still OK.
He wrote: "Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so." (One example: 2009's Soehner v. Time Warner Cable. Inc.)
The trouble comes when the occasional morphs into multiple occassions over the course of weeks.
"Tread carefully," Nowak said. "The best course to reduce the risk of any FMLA liability is to put an end to the work."
Dealing with employees you pay by the hour? Be extra-careful–and consider consulting a lawyer first, because, as labor and employment lawyer Bill Pokorny has noted, good legal advice is cheaper than a wage and hour violation. He said it does not matter what your employees agree to–you still need to comply with the law.
Said Pokorny: "You may be a wonderful boss. Your employees may love their jobs and be willing to work for you even without pay. Maybe they would rather have "comp time" off instead of overtime pay. The Department of Labor doesn't care about any of this, and neither will the lawyer that your employee hires after he becomes disgruntled and decides to take out his frustrations in court."
Bottom line: Employees can't legally waive their rights under state and federal wage and hour laws, except as part of a settlement supervised by the Department of Labor or a court.
Added Pokorny: "That means that regardless of what your employees want or are willing to accept, you still need to comply with the law."
What is your strategy for handling work-related interactions with employees who are on leave?
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