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The company’s handbook said that employees fired for “gross misconduct” would not receive pay for earned but unused vacation time. The term “gross misconduct” was not defined.

One employee was fired after he failed a mandatory drug test. He did not receive any vacation pay.

He sued, claiming a failed drug test didn’t reach the level of gross misconduct and demanded a payout for the leave he didn’t use.

The court agreed. Since the company didn’t explain what conduct it was referring to, the judge tipped the scales in the employee’s favor and said “gross misconduct” refers to actions that are “intentional, wanton, willful, deliberate, reckless or in deliberate indifference to an employer’s interest.”

And, according to the court, failing a drug test didn’t make the cut. The employee was awarded his payout.

The lesson: Be careful about using terms that are open to interpretation without clearly defining them. If the handbook had simply said, for example, that employees forfeit their paid leave if they’re fired for breaking company policy, the court battle could likely have been avoided.

Cite: Lang v. Quality Mold.

If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

In one recent court case, an employee complained that she was regularly harassed by co-workers because of her national origin.

She was originally from Mexico and spoke Spanish as her first language. Other employees had problems with her limited English — she claimed they would often respond to her comments by yelling, “What? What?” or “I do not understand you.”

The woman complained to her boss about how she was being treated, but no action was ever taken. The manager’s reaction: They were just voicing legitimate complaints about her communication skills.

But she didn’t see it that way — she sued the company for allowing a hostile work environment.

The court agreed. The employee demonstrated she knew enough English to do her job. Her co-workers clearly weren’t making legitimate complaints, they were taunting and harassing her.

The company failed to have the case thrown out and will now face a costly jury trial.

The lesson for managers: If it looks like employees are giving someone a hard time because of anything related to race, religion, gender or ethnicity, it’s your duty to step in and stop it.

Cite: Navarro v. U.S. Tsubaki, Inc.

In many situations, yes, as long as the documentation is in order. But here’s a case where a manager’s flexibility went too far — and got the company in big trouble:

A male bus driver was fired after dropping a student off at an unauthorized stop, in violation of the school district’s policy.

The problem: A few other drivers, all female, had broken the same rule but were never disciplined.

So the male driver sued, claiming he was fired because of his gender.

His manager argued the decision was partially based on the man’s previous performance — during his tenure, he’d been involved in one accident, and the school district had gotten several complaints about him from students’ parents.

His unauthorized stop was just the final straw.

What did the court think?

The judge sided with the employee. He presented a lot of evidence of how frequently the policy was broken. One female driver was caught making unauthorized stops on a regular basis for two years, without any disciplinary action.

The man did have problems in the past, but the school district couldn’t prove the rule had ever been taken seriously by management when female employees were involved.

The lesson for managers: You don’t have to treat every employee exactly the same, even when they violate the same policy. In some cases, such as when there’ve been previous behavior problems, the company might decide to fire an employee while only warning the other.

But firing someone while taking absolutely no action against anyone else is likely to lead to a discrimination lawsuit.

Cite: Dinkins v. Suffolk Transportation Services.

Earlier this month, the House of Representatives held a hearing on a bill that would make offering paid sick leave mandatory for employers.

If passed, the Healthy Families Act (HFA) would require any company with 15 or more employees to offer full-time workers seven paid sick days a year. Part-time employees would get a prorated amount based on how much they work.

Like the FMLA, the HFA would let employees take time to care for themselves or a family member. The leave would be legally protected — meaning employees could sue if they feel they’ve been retaliated against for using it.

The HFA is less strict than the FMLA, however. “Family member” includes any blood relative and anyone whose relationship with the employee is “the equivalent of a family relationship.” Any physical or mental illness, injury, or medical condition could result in a protected absence.

What about current paid leave policies?

The bill says employers won’t need to change anything if they already give employees sick leave that’s at least equivalent to what’s required by HFA. But employers would be prohibited from eliminating leave they already offer in an attempt to offset the mandatory sick days.

That means companies won’t be able to reduce vacation time to offset the costs of additional sick time. And some experts interpet the provision to mean companies offering a general PTO bank would need to add seven sick days in addition to what’s already available.

What to expect

Attorney Mike Aitken, speaking at a recent Society for Human Resources Management conference in Washington, D.C., said he expects Congress to take a vote on the bill this spring.

The HFA was introduced in the Senate a few years ago and failed to move. But that was before President Obama — a vocal supporter of the bill — and an increased Congressional Democrat majority arrived in Washington.

So far, no states have made sick leave mandatory — measures have failed in California, Ohio, New Jersey and Washington. Three cities — San Francisco, Milwaukee and Washington, D.C. — have passed mandatory sick leave laws.

We’ll keep you posted on the HFA.

Before Democrats had the chance to formally introduce the EFCA during this Congressional term, the Secret Ballot Protection Act (SBPA) was introduced in both the Senate and the House of Representatives.

If passed, the SBPA will guarantee employers the right to ask for a secret ballot election when workers are deciding whether to unionize.

Currently, elections are held if 30% of employees sign cards saying they want to unionize. The EFCA would let unions take power as long as a majority of employees sign those cards.

Who’s more likely to win the fight? Experts say the EFCA has a better shot of passing, given the Democrats’ majority in Congress and the fact that President Obama has made the bill one of his priorities.

However, the presence of the SBPA could convince the EFCA’s supporters to compromise.

We’ll keep you posted.

Here’s what happened in this recent case:

A 60-year-old employee was told her job was being eliminated after 25 years of working for the employer. She started crying and got permission from her boss to take the rest of the day off.

At home, about an hour after getting the news, the woman suffered a permanently disabling heart attack. Her doctor said she’d been healthy and that the incident was caused by the stress of hearing she was losing her job.

She was awarded accidental disability benefits. The company appealed, arguing she wasn’t eligible because the injury didn’t occur as a result of her job duties.

But the court sided with the employee’s doctor.

It was undisputed that the heart attack was caused by the woman’s conversation with her boss. And since that conversation occurred “during the scope of her employment,” the heart attack was directly related to her job and the woman was eligible for disability benefits.

Cite: Retirement Board of Salem v. Contributory Retirement Appeal Board.

In 2004, Oklahoma passed a law forbidding employers from disciplining employees who keep firearms locked in cars parked on company property.

A group of businesses sued, claiming the law threatened workplace safety. A court agreed and overturned the law, ruling it violated the Occupational Safety and Health (OSH) Act, which gives employers a “general duty” to keep workplaces safe.

But that decision was overturned on appeal. The appeals court ruled that the Occupational Safety and Health Administration (OSHA) has never claimed that allowing firearms on company property would violate the OSH Act. Therefore, there is no conflict between the state and federal law.

So-called “guns at work” laws are one of the latest trends in state employment legislation. Florida and Georgia have already passed similar legislation, and bills are being considered in Tennessee, Arizona and Texas. We’ll keep you posted.

Cite: Ramsey Winch, Inc. v. Henry

The answer depends on why they don’t return.

Under the FMLA, employers can’t recover premiums paid for health coverage if an employee fails to return to work because of their own or a family member’s serious health condition, or due to “other circumstances beyond the employee’s control.”

Those circumstances include:

• the employee’s spouse has been transferred to a job more 75 miles from your company’s location
• the employee is laid off while on leave, and
• a “key employee” is denied reinstatement by the company.

In other cases, employers can recoup the costs if employees fail to return to work. Under the law, “returning to work” means working for at least 30 days after taking leave.

So if an employee resigns or retires within 30 days of his or her return from leave, the company may be entitled to recover its share of the health benefit premiums.