Is it Legal? Answers to Questions on Employment and Hospitality Law

This blog is part of a six-part series answering questions of interest to the hospitality industry. This blog focuses on employment questions.  Please see our December 14, 2017 article for an introduction to this series of blogs.

The answers below are for informational purposes only and not for the purpose of providing legal advice.  You should contact your attorney to obtain advice with respect to any particular issue or problem.

  1. Do employers have to pay hourly employees if they are performing some minor tasks from home (i.e. sending text messages/emails?)

Answering and drafting emails constitutes compensable work under the Fair Labor and Standards Act.  Anything that is more than incidental should be paid to a non-exempt employee.  Recently, the U.S. Court of Appeals for the Seventh Circuit ruled that an employer’s duty in ensuring that off-site work is properly compensated is limited to the employer’s exercise of due diligence.  Under Allen v. City of Chicago, 865 F.3d 936, 944 (7th Cir. 2017), an employer can meet this standard by simply providing a method for recording this time, and not discouraging employees from using the system.

  1. Can an employer do anything to prevent an employee whom they think is abusing the use of leave under the Family Medical Leave Act (“FMLA”)?

An employer may require that a request for FMLA leave be supported by a certification issued by the health care provider.   29 USCS § 2613(a).

If an employer has reason to doubt the certification provided by the employee, the employer “may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer”. 29 USCS § 2613(b).

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