Legal

Can an Employer Prohibit an Employee from Job Hunting During FMLA Leave?

By Jon Hyman

Feb. 5, 2016

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

What an interesting question. I am not aware of any provision in the FMLA that specifically addresses this issue. As Suzanne correctly points out in her post, 

FMLA leave itself doesn’t prohibit someone from job hunting. It does prohibit people from doing things that they shouldn’t be able to do, due to the terms of their leave … .  [I]nterviewing for a job doesn’t aggravate your shoulder, so it’s not a violation of your leave.

What about the “no job hunting” policy itself? Can an employer prohibit an employee from job hunting while on FMLA? 
 
To me, the legal answer to this question depends on whether this policy applies to any employee who is on a leave of absence, or only employees on FMLA leave. If it’s the latter, then the policy targets singles out employees taking FMLA, and probably interferes with their FMLA rights. If it’s the former, then it’s probably not illegal under the FMLA, it’s just a bad policy.
 
The practical question, however, is, assuming this policy is legal, who in their right mind would want to work for a company that prohibits current employees from looking for a new job. We no longer have indentured servants, and for good reason. Employees are at-will, meaning they can leave at any time, for any reason. Why would an employee work for a company that would prohibit him or her from leaving for another job. 
 
Consider me puzzled by this policy, and a huge anti-fan of a no-job-hunting policy. Readers, have you ever encountered a policy like this?
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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