Freeze! Put your hands up and go review your attendance policy ASAP… 2019-08-13T15:34:10-06:00

Posted on August 13, 2019

The Sixth Circuit reminds all employers to carefully review even “no fault” attendance policies for FMLA compliance. Dyer v. Ventra Sandusky, LLC. The employer used a collectively bargained, no-fault, attendance policy that required termination when an employee received eleven or more “points” due to absences. Employees received points whenever they missed all or part of a scheduled shift. Employees who had “perfect” attendance for thirty days, on the other hand, had a point subtracted from their total. Although FMLA-protected absences were expressly excluded from the point-accumulation system, taking such leave reset the “perfect attendance” clock. According to the Sixth Circuit, and the Department of Labor (DOL), this policy may give rise to an FMLA “interference” claim.

Do you have a policy problem? The dispositive question when reviewing your own policy is whether the “practical result” of your company’s policy is that “taking FMLA-protected leave . . . [becomes] a negative factor in employment actions.” For many employers, this will not be news. As the Sixth Circuit was quick to point out, the DOL has repeatedly explained that “point reduction [under an attendance policy] can be viewed as an employment benefit.” Thus, if an employer chooses to provide their employees this benefit, FMLA-protected absences cannot “reset” the “perfect attendance” clock. According to the DOL (and, now, the Sixth Circuit), employers must draft their attendance policies so that FMLA leave “freeze[s] the accrual of attendance.”

DOL says: Don’t Be Too Generous With Your Employees 2019-03-18T11:43:13-06:00

Posted on March 18, 2019

By Beth Ann Lennon

Thursday the Department of Labor (”DOL”) issued three new opinion letters, two of which warrant a quick note. One provided guidance regarding the Family Medical Leave Act (“FMLA”), and the other addressed the Fair Labor Standards Act (“FLSA”). Both had the same ultimate takeaway – employer generosity easily backfires.

Providing more than unpaid FMLA Leave – According to the DOL, employers who want to provide employees more leave than the FMLA requires violate the FMLA if they delay designating leave as FMLA-qualifying to allow employees to exhaust other available paid leave. “[A]n employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave . . . as FMLA leave,” even if doing so benefits the employee. Employers have five days from when they have “enough information” to determine whether an employee’s leave is for a “FMLA-qualifying reason” to designate that leave as FMLA leave. The catch-22? The DOL also considers it a violation of the FMLA for an employer to not provide FMLA eligible employees “any employment benefit [provided for in a company policy] . . . that provides greater family or medical leave rights to employees than the rights established by the FMLA.” In other words, employers who provide more than 12 weeks of unpaid leave to employees need to make sure their leave policies are properly drafted and implemented, or their generosity could get them into hot water.

Encouraging Volunteer Work – The DOL also determined that employer generosity can be a violation of the law when employers provide bonuses for employees who engage in company sponsored volunteer work. According to the DOL, employers who encourage employee participation in volunteer activities may have to treat that volunteer time as “hours worked” under the FLSA unless they are very careful. Don’t want to pay overtime for your employees’ weekend housebuilding activities? Follow these (not so) simple rules…

Employers cannot “direct or control the employees’ activities” during these volunteer activities.
Employers cannot “guarantee a bonus for volunteering.”
Employers cannot require participation in the volunteer program or even “unduly pressure its employees to participate.”
And employees cannot suffer any “adverse effect” on “working conditions or employment prospects” because they do not participate.

Again, the takeaway is clear – if you encourage volunteer activities by your employees, this encouragement must be through a policy that is effectively drafted and administered to ensure compliance with the DOL’s new list of “do not”s.

New Paid Family Leave Tax Credit 2018-01-16T15:19:29-07:00

Posted on January 16, 2018

By Mike Dubetz and Steve Miller

The recently-enacted Tax Cut and Jobs Act (the “Tax Act”) includes a provision that eases the burden for employers who adopt paid family and medical leave policies. The Tax Act added a new federal tax credit available through 2019 to employers that adopt a paid family and medical leave policy to all of their “qualifying employees”. The credit is available only if the employer pays its qualifying employees at least 50% of their regular compensation during the leave period. In addition, the policy must provide for at least two weeks of paid leave for a full-time employee, with a reduced period required for part-time employees. The specifics of the credit are a bit too complicated to detail in a blog post, so if you already have paid family leave in place, or you are considering implementing one, be sure to consult with your tax attorneys.

Stuck in Cape Town Again 2016-11-01T13:16:09-06:00

Posted on November 1, 2016

By Bill Wright

By creatively patching together scheduled days off, vacation days, and personal holidays, and then switching a shift, the plaintiff put together 21 days off. Unfortunately, he was still scheduled for one shift right in the middle of the time off. He and his wife flew to Cape Town, and when his work shift rolled around, he called in to claim previously approved intermittent FMLA leave. He called in the middle of the night US time and so no one asked any questions, but his use of FMLA was flagged as questionable two different ways – first because it was for one shift in the middle of 21 days off and second because it coincided with his wife’s vacation from the same employer.

When he returned to work, human resources questioned him. He couldn’t seem to recall the relevant events at first, but eventually recounted that he had been trying to find a flight home for his shift and suffered a recurrence of his condition; consequently, he legitimately used FMLA time. The employer disbelieved him and fired him for FMLA fraud.

Tellingly, when the plaintiff sued, he did not bring an FMLA interference claim. That seems like what he’d do if he had actually used FMLA leave. Instead he filed only an FMLA retaliation claim. The court granted the employer summary judgment because “it seems perfectly logical” for the employer to conclude the employee “did not want to interrupt his Cape Town vacation to come back for one day of work,” and there was no evidence that the allegation of fraud was a pretext for FMLA retaliation.

At issue in the case was the thoroughness of the employer’s investigation. Here, HR let the employee write a statement, with union support, and asked for documentation to support his story. Under the circumstances, the decision was “reasonably informed and considered.” Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016)

Parental Leave Precautions 2016-04-20T14:19:04-06:00

Posted on April 20, 2016

By Bryan Stillwagon

Last week, Coca-Cola announced that many new parents at the company (domestic non-bargaining employees) will soon be eligible for six weeks of paid leave. The benefits, which supplement existing short-term disability benefits for birth mothers, will be available to mothers and fathers, adoptive and foster parents, and same-sex couples. The announcement comes as the nationwide conversation about parental leave intensifies. According to SHRM, 21 percent of large U.S. corporations offered paid maternity leave in 2015, up from 12 percent in 2014.

If your company is considering an expanded leave program, ensure those valuable benefits don’t result in legal headaches down the road. When parental leave benefits distinguish between protected categories, or are otherwise incongruent with similar forms of leave benefits for other reasons, they run the risk of violating various discrimination laws, including Title VII, the Pregnancy Discrimination Act, and the Family and Medical Leave Act, in addition to state and local laws that might provide additional rights. At a minimum, policies that provide leave beyond a birth mother’s incapacitation due to pregnancy or labor should be gender-neutral and not based on stereotypes of a mother’s role, a father’s role, or a family’s composition. Consideration must also be given to the impact parental leave will have on other benefits, such as short-term disability, as well as the impact it will have on unionized employees and upcoming bargaining. And, of course, whenever you roll out a new benefit not required by law, consider asking employees for some form of quid pro quo, such as a restrictive covenant in exchange for the benefit.

Even with the best of intentions, companies that implement unfair or discriminatory policies risk negating the goodwill they are trying to build. If it’s worth doing, it’s worth doing right.

Supremes Tell States Gay Marriage is Legal 2015-06-26T13:45:44-06:00

Posted on June 26, 2015

By John Alan Doran

This morning, the U.S. Supreme Court struck down state laws the prohibit gay marriage in Obergfell v. Hodges, No. 14-556 (June 26, 2015), First, the Court held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Second, the Court held that the Fourteenth Amendment requires a State to recognize a same sex marriage licensed and performed in another State that does recognize that right.

The Court noted the many areas of life in the U.S. affected by marital status, such as taxation, hospital access, medical decision making authority, adoption rights and much more. But this is a labor and employment blog, so we focus on the effect on employers. First, as the Court recognized, the case will affect workers’ compensation laws in states that provide spousal benefits to spouses of workers’ compensation claimants, but do not recognize gay marriage. Second, the case may significantly affect employers in states that have mini-FMLA statutes with respect to leave to act as a caregiver for a spouse, but that do not recognize same sex marriage. Third, the case may affect employee health and life benefits with respect to spousal coverage depending on applicable state laws and the nature and language of each particular plan. Fourth, the case may affect spousal pension benefits to the extent that pension plans excluded same sex marriage from the definition of spouse. Employers should promptly revisit these affected areas and revise applicable policies, practices, and benefits accordingly.

Alcoholism Still “Current” After 1 Week 2015-01-29T12:40:21-07:00

Posted on January 29, 2015

By Bryan Stillwagon

A commercial truck driver’s week-old release from alcoholism treatment meant he had a “current” diagnosis of alcoholism. Jarvela v. Crete Carrier Corp., No. 13-11601 (11th Cir. Jan. 28, 2015). The employer required its drivers to pass DOT standards, including that they have “no current clinical diagnosis of alcoholism.” This driver took FMLA for alcoholism treatment, but when he returned to work, the employer found he had a current diagnosis and fired him. He sued under the ADA and FMLA. The Court agreed he could not meet the job qualifications. The driver’s rehab discharge was dated only one week earlier and it noted the driver suffered from chronic alcohol dependence. Witnesses involved in his treatment testified that “chronic” means “forever” and “an alcoholic is an alcoholic for life.” The court refused to decide how much time must pass before a diagnosis of alcoholism is no longer “current,” but a seven-day-old diagnosis is clearly current.

Tardy-From-Home 2014-12-03T13:49:01-07:00

Posted on December 3, 2014

By Bryan Stillwagon

From the beginning, the employee had attendance and punctuality problems, and the problems didn’t improve even when the employer adjusted her schedule. After she was diagnosed with MS, the company approved intermittent FMLA leave and accommodated her request to work from home. By the end, she was working from home for all but two half-days per week. But the employer continued to insist that she log on to work at her set start time, or call in to say whether her absence was related to her FMLA. Despite working from home, her attendance and punctuality problems persisted and she was fired.

Based on earlier local cases, the employee argued regular attendance and punctuality were not essential to her position because the company permitted work from home. The Seventh Circuit court disagreed and found she was not a “qualified” for the job because she could not or would not follow her schedule even from home. The company’s “Work at Home” policy did not make punctuality and regular attendance any less essential. Taylor-Novotny v. Health Alliance Medical Plans, Inc., No. 2:12-cv-02132 (7th Cir. Nov. 26, 2014). This is an important clarification from the Seventh Circuit, but NB: this employer knew when the employee wasn’t at work, even while at home, because of computer and telephone log in procedures.

You’re on Leave — Return Receipt Requested 2014-08-06T14:06:47-06:00

Posted on August 6, 2014

By Bill Wright

An employee over-extends her FMLA leave and the employer declines to reinstate her. The employee exclaims that she never knew she was on FMLA – short term disability, sure, but not FMLA. The employer looks in the file, finds the letter addressed to the employee explaining her FMLA leave, and finds the unsigned form the employee should have returned acknowledging her FMLA status. Result? Lawsuit. The Third Circuit recently ruled that, “in this age of computerized communications,” employers should use a form of mail that generates a return receipt when they send a legally required notice. Otherwise, the employee’s sworn testimony that she did not receive the notice is enough to take the issue to trial. Lupyan v. Corinthian Colleges Inc., No. 13-1843 (August 5, 2014). The connection between computers and certified mail isn’t clear. Maybe email makes it more reasonable for people to ignore their U.S. mail.

FMLA Leave – Follow Up on Expected Return to Work 2014-07-02T14:26:40-06:00

Posted on July 2, 2014

By Karla Sanchez

An employee who returns to work at the end of FMLA leave may be entitled to reinstatement, even if the employer wasn’t expecting her. In Gienapp v. Harbor Crest, No. 14-1053 (7th Cir., June 24, 2014), the employee requested leave to take care of her adult child and completed FMLA paperwork, but left blank the question about the leave’s expected duration. The employer did not follow up with the employee, but it did review the physician’s statement which stated that the employee might be needed well beyond the April 1 exhaustion of FMLA entitlement. As a result, the employer believed that the employee would not return to work at the end of her FMLA entitlement and it hired someone else to replace her. When the employee returned on March 29, she was told she no longer had a job. The Seventh Circuit noted that when an employee applies for unforeseeable leave, she/he is not required to tell the employer how much leave is needed, but only has to comply with the employer’s notice policies. Here, the employee complied with the employer’s policies, but there was no conclusive evidence that the employer asked for a set date for return to work.

Before making employment decisions affecting an employee within the FMLA period, follow up on whether the employee expects to return and when.

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