Q I was recently hired for a new job that requires me to start as soon as possible, but how can I give my current employer the two-week notice that she deserves and not cause problems with my new employer?
A You need to speak frankly with both your new and old employers and reach a mutually agreeable solution.
No doubt both have dealt with this situation before, and it’s likely that one or both will be willing to make accommodations.
--Ron Riggio, director
Kravis Leadership Institute
Claremont McKenna College
Mental Disability Leave Could Be Protected
Q One of our office employees had been making ridiculous mistakes. After taking off for surgery, she returned to work the next day but was unable to work. Then she was hospitalized for a week, and she seemed to be quite disoriented when we visited her two weeks later.
Her psychiatrist sent a letter telling us she possibly would return to work in two months. According to her family, she never had any surgery done but was possessed by evil spirits that have completely taken over her mind.
Can we let this person go without breaking the law? Although she is recuperating gradually, we need someone who is on top of things in our fast-paced, highly stressful business.
A Given the facts you have provided, it is possible that the employee’s absence is protected by either the Americans With Disabilities Act/California Fair Employment and Housing Act or the Family and Medical Leave Act/California Family Rights Act.
The law in this area is very complex. To be sure of your rights and obligations, you should consult with an experienced labor and employment lawyer about your specific situation.
If the company has 15 or more employees, it is required by the Americans With Disabilities Act or the California law to make a reasonable accommodation for an employee with a mental disability. A leave of absence to recuperate is a reasonable accommodation unless that would be an undue hardship on the business. Whether a particular accommodation would be an undue hardship depends on many facts that have not been provided in your question.
Without more facts, I also cannot tell you if the employee’s absence is protected by the Family and Medical Leave Act or the comparable state law.
If the company has 50 or more employees, it must permit each employee who is eligible for leave under these acts to take a leave of absence of up to 12 weeks in any 12-month period if he or she has a serious health condition. If this person’s absence is protected by these acts, she cannot be fired for being absent.
--Deborah C. Saxe
Heller Ehrman White & McAuliffe
Firm’s Vacation Decree May Be Deemed Illegal
Q Our employer informed all employees last month that we must take 40 hours of vacation before the end of November. We had two days to pick our days and fill out forms. Employees were also told that if they didn’t have 40 hours on the books they would still have to take 40 vacation hours and that their records would show a negative vacation balance.
Previously, vacation could be scheduled at the discretion of the employee and the supervisor.
With the holiday season approaching, this new policy is a hardship. Is it legal?
A Employer vacation policies that call for the forfeiture of unused vacation by a specified date are illegal. Employees must be permitted to carry vacation time over from year to year, although the employer can limit the total amount of vacation time that an employee can accrue.
Thus, you might have a legal claim if your employer’s new vacation policy in effect caused you to lose earned vacation time because you were unable to take time off.
But the law would not restrict your employer’s right to insist that employees with less than 40 hours on the books take their vacations in advance, even if that would create negative balances in their vacation accounts.
In contrast to prohibiting “use it or lose it” vacation policies, the law ordinarily does not restrict an employer’s right to control the scheduling of employee vacations unless the employees are covered by a union contract.
However, a well-established employment practice may create a legitimate expectation that the practice will continue. Thus, employees at your shop who were relying on the continuation of the old vacation scheduling practice may have a legal claim if they were harmed because the practice was discontinued or curtailed.
Because the employees received paid vacations, damages would probably be limited to out-of-pocket losses such as forfeited hotel or airline deposits.
If you are interested in pursuing these claims, you should contact an employment attorney or file a claim with the California Labor Commissioner.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman