Skip to main content

Employee Takes FMLA Leave & Takes Second Job - What Now?


Recently, a regular reader of the blog brought up a situation where an employee uses leave under the Family Medical Leave Act (“FMLA”) and subsequently takes a second job.  The question arose is this lawful?

Before we get into a more nuanced discussion, I remind readers that this blog is not intended to serve as legal advice.  If you are in a situation where you need a legal opinion or counsel, I suggest you confer with your preferred labor & employment law related counsel.

With that being said, let us take a step back and look at the language of the FMLA.  Section 825.216(e) of the FMLA stipulates that “If an 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 the basis the FMLA leave was fraudulently obtained as in paragraph (d) of this section.”

So take a situation where an employees goes on FMLA leave and then moonlights at a second position at the same time.  For the original employer, if there is a policy in place that prohibits this second job, the employee on FMLA leave could potentially be terminated for taking the supplemental job.  Of course, as Section 825.216(e) notes, this policy must be uniformly applied to all employees.  Selectivity choosing which employees to enforce this policy against could potentially void it if challenged.  However, if the employer has no such policy in place, there likely are insufficient grounds to terminate the employee for taking a second job while on FMLA leave.

What about the second employer though; the employer that hired the employee on FMLA leave?  I think based upon the language of Section 825.216(e), the same analysis would apply.  If the second employer had a policy in place against moonlighting, the FMLA employee likely could potentially be terminated when the first job (in which the employees was on FMLA leave from) became known.  As noted above, this policy would need to be uniformly applied or it would potentially be void if challenged.  Similar to the above, again, if the second employer had no prohibition against moonlighting, there likely would be insufficient grounds to terminate the employee for having a second job while on FMLA leave.

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...
Post a Comment
Read more

Distance in a Non-Compete Agreement Measured "As the Crow Flies"

Ginn v. Stonecreek Dental Care - Court of Appeals, Twelfth Appellate District of Ohio Facts :  Dr. R. Douglas Martin ("Martin") sold his dental practice to an employee who worked there, Dr. David Ginn ("Ginn").  In doing so, Martin and Ginn signed a contract for the sale which contained a non-compete provision that prohibited Martin from engaging in business "within 30 miles" of the practice for five years starting from October 2010.  While Martin initially stayed on and worked with Ginn for a period, the relationship subsequently deteriorated between the two and Martin went to work for another dental office.  The new dental office was less than 30 miles away when measuring the distance in a straight line.  However, when driving between the offices, the distance was more than 30 miles. Ginn filed a claim against Martin on the grounds that Martin breached the non-compete.   At the trial court level, the court found that "within 30 miles"...
Post a Comment
Read more

Breaking: Labor Secretary Rumored to Be Leaving Administration

A few hours ago, word leaked out that Labor Secretary Marty Walsh (“Walsh”) is in the midst of negotiations to head up the NHL Players Union and leave his position at the Labor Department. Walsh, who has served as the sole Labor Secretary under President Biden, has taken part in a labor renaissance of sorts as support for organized labor has increased during his term as Labor Secretary (although the number of workers that have joined a union over the past two years has not grown as mush as some expected.)  He has also overseen the ongoing negotiations with rail workers over a new contract, although that matter is still on shaky ground and playing out as we speak. As for who might step into the vacant Labor Secretary role, there are already rumblings that President Biden should nominate Deputy Labor Secretary Julie Su (a strong labor advocate) or even a progressive like Senator Bernie Sanders.  Until Walsh officially gives his notice, however, I would expect some/many potential...
Post a Comment
Read more