May 2017 Volume XI No. 1 Taking Care of Business
        
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Emails Are Legally Binding Documents

The key piece of evidence in a recent trial was a three word e-mail sent (in a hurry) at 5:30 AM. The author was replying to an email and thought of his response as mere conversation, rather than as a legally binding document, until it was received as Exhibit A in court. It was then enlarged, placed on a 24” by 36” poster board and used effectively in final argument.

In the event of litigation (or presidential elections), courts require that all electronically stored information, including e-mails, be located and produced to the other side. Even deleted emails can be recovered with the proper technology.

So gently touching that mouse and hitting “Send” can have powerful and expensive ramifications.

  1. To avoid accidentally hitting send, don’t type the name of the recipient until ready or just send to yourself. If you do send by mistake, the email can be retrieved, but it’s still discoverable.
  2. Print the e-mail and imagine how it would look as an exhibit at trial.
  3. Don’t rely on Spellcheck. Check for spelling, punctuation and proper grammar, as you would with a letter.
  4. If sufficiently important, write an old fashioned letter and just attach it to the email.
  5. Unless there is some urgency, pause for at least five minutes to review
  6. Don’t send when in a hurry or when tired. That won’t be an excuse to a judge or jury.
  7. Rather than hitting Reply, send a separate response email so that prior (and possibly harmful) earlier emails are not discoverable. This also helps avoid showing the length of time it took for the response to have been considered.
  8. E-mails to your lawyer are privileged and protected, but if others are copied on your response, the protection could be lost.
  9. Even Blind Copies are discoverable.
  10. The shorter the better.

And finally…don’t own a computer.

Many people become indicted, go to jail, and lose lawsuits due to the careless use of emails. As my mother always cautioned me: be careful.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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Managing Fraudulent Use of Leave under the FMLA

The Family and Medical Leave Act (“FMLA”) provides important unpaid leave benefits to employees, but also serves as a source of frustration for employers balancing their desire to comply with the law and manage their operations efficiently. Employee requests for intermittent leave present unique and difficult challenges. In these situations, employers must work around unplanned absences due to legitimate leave requests, but must also occasionally address employees who seek fraudulent FMLA leave.

Federal courts have paved a way for employers to respond to employees who use FMLA for reasons other than the intended purpose. To that end, courts have held that an employer does not violate the non-retaliatory prohibitions of the FMLA by terminating an employee if the employer “honestly believes” that the employee has used leave for an improper non-FMLA purpose. Before taking any adverse action against an employee for fraudulent FMLA leave, employers must conduct a thorough investigation, the results of which support the employer’s “honest belief” that the employee has engaged in fraudulent use of FMLA leave. Employers must not “jump to conclusions” or “make assumptions” in deciding that an employee was being dishonest about his use of FMLA leave.

The employer’s investigation should include specific steps such as (1) capturing observations of employee conduct (which is inconsistent with the employee’s leave request) on video and having the video reviewed by an outside medical consultant; (2) obtaining medical review of the employee’s FMLA certification forms signed by the employee’s doctor and the employee’s job description; (3) obtaining a medical report (including an analysis of what the medical consultant observed in the video and the doctor’s conclusion that the employee’s observed conduct is inconsistent with the medical condition or other reason necessitating the leave); (4) interviewing the employee about his use of FMLA leave. Employers should always allow the employee the opportunity to respond to the allegations, including the opportunity to submit additional responsive information. Depending on the information provided by the employee during the investigation, the employer should consider the possibility of terminating the employee for providing false information during the employer’s investigation.

There are other avenues to curb intermittent leave abuse, including requiring a medical certification to initially verify an employee’s serious health condition and need for leave, and then requiring another medical certification every leave year, every time the reason for leave changes and every time there is a request for a leave extension. Employers, however, must be mindful to ensure that requests for certification will not be viewed as interference with an employee’s FMLA leave. Employers should also review medical certification forms submitted for evidence of fraud. Does it appear that there are multiple different handwritings? Is there evidence that the employee completed the form? Ask the employee whether he filled out the form. Employers can also require an employee to provide a doctor’s note for paid sick day substituted for FMLA (provided the employer’s paid sick leave policy requires a doctor’s note). Consult your legal counsel to discuss handling of these workplace challenges.

If you have questions regarding FMLA, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.