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Thread: Moonlighting and FMLA Arkansas

  1. #1
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    Default Moonlighting and FMLA Arkansas

    Currently we allow some moonlighting by our employees. We do ask they get an OK from their super before starting any second jobs. Our primary reason has to do with conflicts of interest with their position with us. However I can't recall any employee being denied in recent history.

    We did have an employee who abused her FMLA time -- but her supervisor, our COO, was the culprit. He let her have more than the 12 weeks after the birth of her child. Much more time. And we later learned that she had returned to her second job weeks before coming back to us.

    Can we change our policy about moonlighting so that if the employee is the one with the medical condition that requires FMLA that employee cannot moonlight while we protect his/her job? Would it be better to rewrite our policy that no moonlighting is allowed while out on any leave?

    Thank you in advance for advice!

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    Here is some information from SHRM...

    Whether an employee can moonlight while on FMLA leave depends upon (1) FMLA regulations, (2) state law, (3) the employer’s policy or (4) the absence of an employer’s policy.

    (1)The FMLA does not prohibit an employee from working another job while on FMLA leave. However, FMLA regulation 825.216(e) states: “If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained as in paragraph (d) of this section.”

    (2) While the FMLA may permit no-moonlighting policies/clauses, some state laws effectively prohibit the application of no-moonlighting policies by making it unlawful for an employer to inhibit an employee's lawful off-duty conduct. As with any policy, an employer should seek advice of legal counsel on its policy prohibiting secondary employment.

    (3) If an employer has a uniformly applied policy prohibiting secondary employment or a clause prohibiting such conduct in its FMLA policy, then the policy may be applied to an employee on FMLA leave as long as the employer does not treat the employee on FMLA leave differently than those who are on an equivalent leave status for a non-FMLA-qualifying reason. If an employer with a policy prohibiting outside employment learns that an employee is working another job while on FMLA leave, it should confirm the fact, inform the employee that it is aware of the other job and obtain the employee’s acknowledgement that his or her working violates company policy.

    For moonlighting policies that allow outside work that meets policy restrictions, the employer could also try to learn the duties of the other job and compare them with the employee’s current one and with any medical information or restrictions in the employee’s FMLA medical certification form. If an employee on FMLA leave is found to be moonlighting against company policy, disciplinary action would ordinarily be considered. However, taking disciplinary action against an employee on FMLA leave is a significant decision that should be undertaken only after conferring with legal counsel.

    (4) When there is no specific policy in place on outside employment while on FMLA leave, an employee on approved FMLA leave may have secondary employment and even work in a similar environment to his or her current position as long as the employer has no general policy of prohibiting outside employment for all employees. This practice is consistent with treating employees on FMLA leave in the same manner as employees on other forms of paid or unpaid leave are treated. If an employer does not have a policy that addresses employees working another job while on FMLA leave, it might consider adding reference to this in its FMLA policy or adopting a separate policy.

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    One thing to remember is that you have to treat those on FMLA the same as anyone else out on leave. So your best bet (depending on state labor laws) is to have a moonlighting policy for all leaves, not just FMLA. Much of what #4 above says.

    The time to discuss the 2nd job was when she filled out the FMLA paperwork in the beginning also if she had already disclosed the 2nd job and you had it on record.

    And it's time to (re)train the COO on FMLA protection and what precedent he has possibly now set for other FMLA leaves and extensions. Hard to argue under FMLA/ADA that more than 12 weeks is "undue hardship" when it has already been allowed.

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    Thank you. It's been very tough trying to make the COO understand what the long term effects would be across the board. He sees it now, but now is too late. He's very old school and ... well, knows all. Great at the rest of his job, highly intelligent and talented, but his ego gets the best of him from time to time. Appreciate the sharing of the info!

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    too late is often our problem too -- managers push back because they don't think we need a policy, but usually do come around after the fact.

    just had another one today -- I hate being reactive, but sometimes it takes an issue to show the management that your idea/perspective is good!

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    Perhaps this is just me and my experience and age kicking in. But I figure that if she is working for you, and getting FMLA through you, that should prevent her from moonlighting while on FMLA. Who is more important? You or her other job? If her other job, then she can go work for them instead, instead of moonlighting.

    To me that is an integrity issue. Who is more important? I think you as you are paying her more. She is getting her FMLA through you. So moonlighting while on FMLA is the same thing, IMO as theft. Her lack of respect for you/her employer shows that she has no workplace integrity.

    Allowing moonlighting is just fine, IMO, so long as there is no conflict or deleterious effect on your business, with a no-compete contract included. And an understanding that if on sick leave with you they're on sick leave elsewhere as well, unless there is a previous documented discussion between them and you, and a really good (preferably medical) reason why they can be on sick leave with you and working at the moonlighting job.
    I don't believe what I write, and neither should you. Information furnished to you is for debate purposes only, be sure to verify with your own research.
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    here's one article I found that describes the issue well: http://www.hrhero.com/hl/articles/20...ng-fmla-leave/

    it truly is going to be up to what policies the employer has and how they have or have not enforced them in the past for other employees, those on leave and those not. It's not enough to make the policy after she is on leave or terminate her because the employer doesn't like what they have found out....because then it can look retaliatory for taking the leave. And honestly the last thing you want is a retaliation claim.

    " ...In a nutshell, you must treat all employees (those on FMLA leave and those not on FMLA leave) similarly when it comes to moonlighting. If you maintain a (preferably written) policy prohibiting outside work in all circumstances or during all periods of approved leave of any type and if you enforce the policy uniformly, you may apply your “no-moonlighting” policy to an employee on FMLA leave. However, if you don’t have a uniformly applied no-moonlighting policy, you may not restrict an employee’s right to work for another employer during FMLA leave unless you can establish that the FMLA leave was fraudulently obtained...."

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    At one point we did not have a policy about moonlighting.

    An employee took FMLA due to medical issues with his daughter. Had a medical certificate and everything.

    He took off 12 weeks and used his PTO for pay while he was out.

    About week 10, we found out by pure accident that he spent the entire time doing the same exact job at another company while on FMLA with us.

    We consulted legal counsel and basically we had no recourse. We had approved FMLA and didn't have a policy preventing moonlighting while on a leave of absence.

    Our current policy says moonlighting is prohibited while on Any kind of leave of absence unless approved.

    We consider each case individually and can articulate why permission was granted or not. Plus we have some grounds if we find out someone is working while on leave without prior approval.
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    I am probably the outlier here, but if someone is off due to the birth of a child, why care if they also have another job? It is different if they are off for their own health and are fraudulently taking FMLA to work elsewhere, but with the birth or adoption of a child, even being relieved of one of multiple jobs can be a huge help in adjusting to life with a new family member.

    My current employer requires all secondary employment be reported (by law we have to-public sector) but there are many cases where the ability to work the other job does not call into question the legitimacy of the leave.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Normal birth, normal delivery, however she claimed she was unable to return to work -- that her doc wouldn't release her. The paperwork matched what he said. However, she returned to her side job a few weeks earlier than she returned to our job. Ours is likely less taxing on a new mom than being a server in a busy restaurant. However we did not have a policy in place at the time to prevent moonlighting. We learned a big lesson through her and will likely put a policy into place for 2018.

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    Quote Originally Posted by arkansasscribe View Post
    We learned a big lesson through her and will likely put a policy into place for 2018.
    Why wait. You have a very nice break point coming up July 1. It is the end of a quarter and half way through the end of the year.

    Get a policy written and in front of your boss(es) so it can start then. It won't apply to this lady but for all you know there are some buns in the oven in your office as we speak.

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    Quote Originally Posted by Payroll Guy View Post
    Why wait. You have a very nice break point coming up July 1. It is the end of a quarter and half way through the end of the year.

    Get a policy written and in front of your boss(es) so it can start then. It won't apply to this lady but for all you know there are some buns in the oven in your office as we speak.

    Be careful as that sounds just a bit sexist....it's not just about motherhood/pregnancy/women's issues but anyone out on FMLA for any reason-- this policy has to apply to all employees no matter what kind of leave they are on -- to be legal and not count as retaliation for taking FMLA or pregnancy timeoff.

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    Not to mention FMLA for a birth is only partially for recuperation from giving birth. Even if the doctor cleared her to return, she was entitled to the full 12 weeks. I'd think carefully about forbidding any moonlighting or work while out, especially if you have a lot of lower wage workers or those with multiple jobs. Are you really going to forbid someone from selling Avon or whatever sideline they have going while they are out? Would you do the same if they were on vacation for 2 weeks? Treat the abusers accordingly, but think carefully how this might impact your workforce.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Quote Originally Posted by ElleMD View Post
    Not to mention FMLA for a birth is only partially for recuperation from giving birth. Even if the doctor cleared her to return, she was entitled to the full 12 weeks. I'd think carefully about forbidding any moonlighting or work while out, especially if you have a lot of lower wage workers or those with multiple jobs. Are you really going to forbid someone from selling Avon or whatever sideline they have going while they are out? Would you do the same if they were on vacation for 2 weeks? Treat the abusers accordingly, but think carefully how this might impact your workforce.

    The problem with dealing with the abusers only is there doesn't seem to be a legal way to single them out.
    FMLA is there to protect people's jobs when they can't work or to bond with a new child. If they can't work for employer A they should be able to work for employer B, C, or D.

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    Quote Originally Posted by Payroll Guy View Post
    The problem with dealing with the abusers only is there doesn't seem to be a legal way to single them out.
    FMLA is there to protect people's jobs when they can't work or to bond with a new child. If they can't work for employer A they should be able to work for employer B, C, or D.
    I have to wonder if you even read the post that you copied from SHRM above. Assuming you meant "shouldn't" -- and that is your judgment call for your place of business if you have the authority to make that kind of policy. But it's not always best business practice to forbid it.

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    Not my area of expertise, but I was always told that having company policies and not equally enforcing it is MUCH worse then policy at all.

    True story. We had some employee get drunk (after work), decide he was too drunk to make it home, so ended up parking on the company's front yard. HR had a meeting about setting a policy against this sort of thing. Finance was sending me to these meetings, and my recommendation was no policy. When HR insisted we needed a policy I suggested a "no bone-head rule". The policy in its entirety was the same as the title. Bone-heads are not a legally protected class, even under ADA and it is perfectly legal to fire someone for being one.
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    Quote Originally Posted by hr for me View Post
    I have to wonder if you even read the post that you copied from SHRM above. Assuming you meant "shouldn't" -- and that is your judgment call for your place of business if you have the authority to make that kind of policy. But it's not always best business practice to forbid it.
    Yes I meant "shouldn't".

    I was mainly responding to ElleMD's comment about dealing with only abusers.

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    Quote Originally Posted by daw View Post
    not my area of expertise, but i was always told that having company policies and not equally enforcing it is much worse then policy at all.

    True story. We had some employee get drunk (after work), decide he was too drunk to make it home, so ended up parking on the company's front yard. Hr had a meeting about setting a policy against this sort of thing. Finance was sending me to these meetings, and my recommendation was no policy. When hr insisted we needed a policy i suggested a "no bone-head rule". The policy in its entirety was the same as the title. Bone-heads are not a legally protected class, even under ada and it is perfectly legal to fire someone for being one.
    love it!!!

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    Quote Originally Posted by DAW View Post
    Not my area of expertise, but I was always told that having company policies and not equally enforcing it is MUCH worse then policy at all.

    True story. We had some employee get drunk (after work), decide he was too drunk to make it home, so ended up parking on the company's front yard. HR had a meeting about setting a policy against this sort of thing. Finance was sending me to these meetings, and my recommendation was no policy. When HR insisted we needed a policy I suggested a "no bone-head rule". The policy in its entirety was the same as the title. Bone-heads are not a legally protected class, even under ADA and it is perfectly legal to fire someone for being one.
    Sounds reasonable, somewhat. I would be willing to give some leeway, however, in a case such as his, since it is far safer to tick off a boss & park on company property after a rought night on the town, instead of driving home intoxicated.
    I don't believe what I write, and neither should you. Information furnished to you is for debate purposes only, be sure to verify with your own research.
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    And if he had parked in the nearby very large unlocked parking lot I would agree with you. But he instead drove over a low fence, and some bushes and flowers to get to the lawn. Property damage. A call to the plant manager at 3 in the morning by the police. Us having to send someone to the police station to pick him up. (His wife apparently felt she had done this too many times before). Also, it is not like someone forced him to get s***faced drunk. At least he did not kill anyone, so I guess it could have been worse. Being a fall down drunk may be ADA. Messing up the front yard is not.
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    Oh. Well. I suppose there are a few things that would get in the way of a boss being lenient.
    Last edited by cactus jack; 06-17-2017 at 10:29 PM.
    I don't believe what I write, and neither should you. Information furnished to you is for debate purposes only, be sure to verify with your own research.
    Keep in mind that the information provided may not be worth any more than either a politician's promise or what you paid for it (nothing).
    I also may not have been either sane or sober when I wrote it down.
    Don't worry, be happy.

    http://www.rcfp.org/taping/index.html is a good resource!

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    I understand that being a drunk may be covered by ADA. But doing Really Stupid Things while drunk is not. If someone wants a company policy, write one telling employees to NEVER drive to work while impaired. No one is important enough that missing a day is that big of a deal. I had an employee drive to work drunk (AM), hit several cars in the parking lot, and his excuse was that he did not want to "let me down". I had a meeting with all my staff (dozen) and told them none of them were important enough to justify doing that. If you are impaired, take the day off, and if you have an ADA issue, talk to HR. I can get 20 temps with one phone call. There is nothing I can do to make a dead pedestrian alive. I do not need those kind of "favors".
    "Reality is that which, when you stop believing in it, doesn't go away".
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    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    I'm late to the party on this one but current substance use is never protected under ADA.
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    Not an ADA expert but that is good to hear. I have heard this both ways.

    I do not mind an employee taking time off work for treatment or missing the occasional day. I mind very much having one of our employees run someone over. That being the case, I am very much in favor of hammering any employee who comes to work impaired. The last/only time this came up with someone reporting to me, HR assured me I could not fire the person. My VIP was so P.O. he paid $5K to one of the big boy law firms getting a formal opinion telling HR what they could do with their opinion.
    "Reality is that which, when you stop believing in it, doesn't go away".
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    Sounds as they should have replaced the HR person that said that as well.

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    35 person HR department. You do not fire people for being wrong. You train them. (You fire people for being wrong and not caring that they are wrong - re Bonehead rule).

    If you fire people for making mistakes, people will lie and hide their mistakes. I never fire people for honest mistakes. I want them to bring mistakes to me so I can fix the mistakes and prevent them from reoccurring.
    "Reality is that which, when you stop believing in it, doesn't go away".
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    Quote Originally Posted by DAW View Post
    35 person HR department. You do not fire people for being wrong. You train them. (You fire people for being wrong and not caring that they are wrong - re Bonehead rule).

    If you fire people for making mistakes, people will lie and hide their mistakes. I never fire people for honest mistakes. I want them to bring mistakes to me so I can fix the mistakes and prevent them from reoccurring.
    I like that philosophy very much.

    My 2 instructions are that if we make a mistake, I want to try to keep in in house (ie find it before it impacts an employee), and if we make a mistake, what actions will we take to make sure it doesn't happen again.

    Now, don't care about mistakes, keep making the same mistake over and over again - those are different issues.
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    While terminating someone for being under the influence at work is not illegal, there are times it *may* be ill advised for other reasons. Those reasons are going to be very few and far between (IMO), but they do exist.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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