September 27, 2018 | Category: Heard It On The Hotline

By: Rob Parker

Periodically, employers can be somewhat parental and make decisions that are well intended but can lead to problems.  For example, an employer witnesses a senior employee lifting heavy boxes and decides to transfer the employee to a less labor-intensive position.  The employee enjoys his position and does not want to be transferred.  The employee feels that he is being punished for reasons unknown.

Another scenario we see often is when an employer finds out that an employee is pregnant.  The employer does not want to be responsible for anything negative happening to the pregnancy, especially as the employee approaches her third trimester. The employer will either force the employee to take an early leave of absence or transfer her to an administrative position. The employee has not requested either and there is no medical documentation that supports the employer’s actions.  This often gives rise to allegations of age, gender and/or pregnancy discrimination.

We recently received a call from a member about a female employee who was returning from a leave of absence due to surgery.  The employee had a full unrestricted release from her health care provider and was eager to return to full time duty.  The employer, however, was reluctant to restore her to full time because he/she felt that it was just too soon considering the nature of the surgery.

When the employee was told that she could only work a maximum of thirty-five (35) hours per week she became upset.  She explained to her employer that she could not afford to work fewer hours and didn’t understand why the medical release was not being honored.

When NAE was contacted for guidance, we advised not to reduce the employee’s hours for the following reasons:

  • There was medical documentation that released the employee to full and unrestricted duty; and
  • Without a valid business-related reason for reducing the hours it could appear as though she was being impacted because of her gender.

The employer truly felt that he/she was doing the right thing by easing the employee into full time duty and allowing her to recuperate from her surgery.  It has been my experience that sometimes employers will weigh the risks of taking an adverse action versus what they think is a potential negative outcome.  As an employer it is very difficult to defend yourself in these situations arguing that something might or could happen without proof.

Employers should always consult with a trusted adviser, like NAE, and/or legal counsel before making what might be a costly decision.