An Ounce of Prevention

When family and medical leave ends, an employee might still be entitled to leave under the Americans with Disabilities Act. If he or she has a medical problem that qualifies as a disability, more leave may be considered a reasonable accommodation, though such accommodation is decided case by case. “You have to look at the individual circumstance,” Wood says.

Likewise, workers who take leave as part of a workers’ compensation case may still be eligible for more time under the   FMLA or ADA. “You have to keep all three sets of rules in mind,” Wood says.

It’s illegal to fire, lay off, or otherwise retaliate against workers because they use family and medical, disability, or workers’ compensation leave, or use company medical insurance benefits, but it can sometimes happen. Kathryn Engdahl, an attorney at Metcalf, Kaspari, Howard, Engdahl, & Lazarus, says she has represented employees who have been fired for taking family and medical leave.

Non-Compete Agreements

Non-compete agreements are a popular way to prevent employees from taking their experience working in your company and putting it to use for the competition. This can mean barring employees from working for competitors for a set period of time after they quit working for you. Or it could mean stopping them from freelancing or moonlighting with those companies while you are paying them, too.

However, the agreements are hard to enforce. “More and more companies are asking workers to sign non-compete agreements, and courts look for a way to not enforce them, because they’re in restraint of trade,” says Abrahamson. Still, there are ways to construct durable agreements.

With employees who’ve worked with you a while, you must negotiate additional compensation in return for them signing a valid non-compete agreement. You need to offer “something more than the opportunity to continue working here,” Abrahamson says. If a worker still refuses to sign after you’ve offered reasonable compensation for the agreement, you are within your rights to fire them, Abrahamson says, “but you probably can’t deny them unemployment compensation.”

You don’t have to offer a new hire extra compensation for signing a non-compete agreement, says Patrick Robben, a Rider Bennett partner. If you do ask a new hire to sign a non-compete agreement, though, you should present the agreement as part of the job offer. That allows the hire to consider whether she’s willing to sign, before she quits her old job and limits her options.