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When working a second job on FMLA leave is prohibited

During the holidays, many employers seek advice from legal counsel about whether their employees are abusing the Family and Medical Leave Act. Most of the time, they want to know how to deal with workers who are on FMLA leave but are working somewhere else. It might help New Jersey employers and their employees as well if they understand when working another job on FMLA leave is and is not permitted.

Employers who find out that workers on FMLA leave are working a second job often discipline or terminate those workers for FMLA dishonesty, abuse or fraud. However, working at another job is not technically prohibited during FMLA leave. Workers with serious health conditions that keep them from performing manual labor, for instance, could perform clerical work instead.

The FMLA and its regulations do not prevent employees from working other jobs while they are on leave unless their employers have established a policy against doing so. This policy must apply to all workers who are on a leave of absence, whether that leave is for FMLA or non-FMLA reasons. The Department of Labor Wage and Hour Division explains that the policy applies to both because the workers maintain an employer-employee relationship.

Employers who wish to keep workers from working other jobs while they are on FMLA leave must clearly establish a policy against it, and the policy must apply to all types of leave. They should also remind workers of the policy upon the beginning of leave. When employers learn that their employees are working second jobs, they need to make the employees aware of it and gain acknowledgement that the employees understand that they violated company policy.

Employees who have been wrongfully terminated from their main jobs because they are working a second job while on FMLA might want to bring claims against their employers if no company policies against working another job are in place. An employment law attorney can be of assistance in determining whether such recourse is available.

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