The Employer Handbook Blog

Senator Richard Durbin [IL-D] has reintroduced the Family and Medical Leave Inclusion Act in the U.S. Senate, while Rep. Carolyn Maloney [D-NY12] has done the same in the U.S. House of Representatives. This bill, which has been taken up in Congress several times previously -- most recently in 2011 -- would amend the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition.

I'd be surprised if the FMLIA becomes law. However, regardless of whether it passes, there is nothing now preventing employers from offering these benefits to their employees.

Did someone say benefits? Well friends, do I have some benefits for you! (See how I did that?)

No, it's not an update on the Paula Deen discrimination case -- trust me, it's nauseating (after clicking, with a trashcan and breath mint handy, search for the word "eclair") -- I'm going to deliver to you the latest edition of the Employment Law Blog Carnival. Where else on the World Wide Web can you find this much great employment-law information in one spot?

(Come on guys, I'm blushing).

Thank you to this month's host, Donna Ballman, and to all the folks who contributed posts.

"Damn you, Department of Labor! It's 12:00:01 on March 8, 2013. I keep refreshing this stupid site and nothing is happening! I NEED FORMS!!!!" 

--- Absolutely no one in HR.

Actually, the forms have been available for some time now, slacker.

Forms

• WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition (PDF)


• WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition (PDF)


• WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)


• WH-382 Designation Notice (PDF)


• WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)


• WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)


• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)

(Note: One area where the forms fall short is the lack of GINA safe harbor language. Consider adding it. Also, it's a good idea to consult with an employment lawyer to see what other tweaks to the forms may benefit your company).

Here is the poster.

Under the Family and Medical Leave Act (FMLA), employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

Consequently, part-time employees generally do not qualify for FMLA leave because they do not meet the 1,250-hour requirement.

However, a new bill introduced last month in the U.S. House of Representatives would change that if signed into law. It's called the Part-Time Worker Bill of Rights Act of 2013 and you can download a copy of it here.

The Part-Time Worker Bill of Rights Act of 2013 would remove the 1,250-hour requirement. Thus, any employee with at least one year of service, working at a location where the company employs 50 or more employees within 75 miles, would qualify for FMLA.

Presently, the bill sits in Committee. It has a single sponsor, Rep. Janice Schakowsky [D-IL9], and govtrack.us gives it a 1% chance of passing.

Yesterday, we addressed (here) the possibility of Congress taking up paid sick leave shortly.

Now, there is word that the Parental Bereavement Act, last considered in 2011 as an amendment to the Family and Medical Leave Act, is back on the table.

Last week, in this press release, Senator Jon Tester (D-MT), announced that he and and Congressman Steve Israel (D-N.Y.) will champion the effort to change the FMLA to allow  parents grieving from the death of their son or daughter to receive up to 12 weeks of job-protected time-off.

You can find a copy of of the bill here. 

Coming soon, so says Senator Tom Harkin here.

Known as the "Healthy Families Act," this bill was introduced in the House in 2009, and again in both the House and Senate in 2011, but never got much traction.

But now, in addition to Senator Harkin, former President Bill Clinton is stumping for paid FMLA.

And, recently, steps have been taken to expand protections under the Family and Medical Leave Act for military families and airline flight crews.

Given the Republican majority in the House, I'd be surprised if a paid FMLA bill made it to President Obama, who would surely sign it.

I have three kids, ages three and under. So a vacation for me is the half hour of quiet time I get in the bathroom every morning. 

It's not like the old days. 

I remember Spring Break '97 in the Bahamas. Sun, beach, water sports, and a couple of adult beverages.

It was kinda like the Mexican vacation that Carol Lineberry, a former employee of Detroit Medical Center, took back in 2011. These pictures she posted on Facebook -- we didn't have Facebook back in the day, so I'll deny everything. EVERYTHING! -- show that Ms. Lineberry is having a blast in Mexico.

Did I mention that Lineberry took this trip while taking leave under the Family and Medical Leave Act? Of course, she did. And now she's on The Employer Handbook.

See how that works? Like a Zoolander gasoline fight, trust me, this won't end well for Lineberry. No, it won't.

Read more after the jump...

Continue reading "Facebook photos from a Mexican vacation foil an employee's FMLA claims" »

Before going any further, allow me to wish a Happy Belated 20th Birthday to the Family and Medical Leave Act. 

What can I say? I plumb forgot. To atone, I got Fammy Med a Walkman. (Kids, that's what we used to listen to music in 1993. It doesn't walk and it's not a man. But it did play my mix tapes -- sigh). 

Next year, to celebrate the big 2-1, drinks are on me. Sizzurpbombs! Remy Martin Cognac Louis XIII. 

For today, we'll do an FMLA post in tribute.

A few weeks ago, I posted "3 essential FMLA tools for your HR-compliance arsenal," one of which was to have a publicized attendance rule and enforce it.

That post immediately crossed my mind as, yesterday, I read these undisputed facts from a recent Eighth Circuit decision:

• The plaintiff missed work for the entire month of February 2008.
  
  
• Although the plaintiff later claimed her depression caused her absences, she never told her employer that she was ill (or gave her employer any real clue that she needed FMLA leave).
  
  
• The plaintiff failed to use her employer's call-in procedure for her February absences -- all of them. (This notwithstanding that the plaintiff had her employer's call-out number programmed into her phone and had used it over 100 times before).
  
  
• The employer's rule was three days of no-call-/no-show is a voluntary resignation.

Here's the deal under the FMLA, folks. Most employers -- really, everyone other than Carnac the Magnificent and Nate Silver -- are not clairvoyant.

If an employee needs FMLA, the employee needs to let the employer know that. The general rule is 30 days' notice. However, when an employee's serious health condition occurs out of the blue, the employee must provide notice of the need for FMLA leave as soon as practicable -- as opposed to, you know, never, like the plaintiff here.

And that was the plaintiff's demise here. No FMLA notice means no FMLA leave. No FMLA leave means the plaintiff needs to abide by the employer's work rules regarding call-outs. No call out for 29 days means the plaintiff ends up on this blog as a cautionary tale.

I live to give.

Three easy ways to tackle FMLA issues, without having to call someone like me. I'll explain after the jump...

Continue reading "3 essential FMLA tools for your HR-compliance arsenal" »

*Do I need a disclaimer? Do I?

What a year for The Employer Handbook in 2012! I'm most pleased that, in our second year of existence, readership more than doubled. Although, sadly, the one 2011 reader I had from Papua New Guinea never returned in 2012. I hope she is ok. Yeah, she's ok.

So, what did my readers enjoy most in 2012? Well, apparently, y'all like Polka music. Why else would this be the most-clicked item on The Employer Handbook? What a strange cultured bunch!

As for actual HR/legal-related content, here were the top five based on total page views:

1. Legislation introduced to expand FMLA coverage in PA. I originally posted this in June 2011 and the bill never passed. Move on, people. Move on.


2. Facebook pics of employee boozing at a festival ruin her FMLA claim. This doesn't surprise me at all. I was at SHRM National in '12. I saw what happens when you provide HR "professionals" with access to karaoke and half-priced well drinks. Don't worry, I won't tell. ** Cancels Instagram account **


3. Ethics charges for two lawyers over Facebook friending a litigant. I'm not so sure that the two lawyers are pleased about this. (Note: I love you. All of you. Keep clicking). Nonetheless, my theory that misery loves company in the legal community is confirmed.


4. 4 new employment-law bills now pending in Congress. None passed. Yeah, I'm shocked too.


5. Pepsi and Criminal Background Checks: Beyond the Buzz. This one was a guest post from Janette Levey Frisch. I tried combining chloroform with Pepsi Kona to keep Janette all to myself; however, Janette now blogs at The Emplawyerologist. Make sure to check it out.

So, other than old PA legislation, soda, booze, and farting (Give that one time to breathe, I expect big things), what would you like to hear about in 2013? Let me know in the comments below and I will make all of your dreams come true.

Today we have a guest blogger at The Employer Handbook. It's one of my fave employment lawyers from Twitter, Chuck Lawson.

Chuck is a member of the Labor and Employment group at Grant Konvalinka & Harrison, P.C., where he specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law.

After the jump, Chuck is going to school you on some FMLA pitfalls that can trip up even the best employers -- and how to avoid them (the pitfalls, that is).

(Want to guest blog at The Employer Handbook? Holla at ya boy).

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Continue reading "How Employer Words and Actions Can Make FMLA Apply, Even When It Doesn't" »

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

The Family and Medical Leave Act permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances, such as caring for a parent with a serious health condition. Intermittent leave can be days, hours, or even minutes off of work. Indeed, when an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

When employees use minutes of intermittent FMLA, it's generally in the form of early dismissals or late arrivals to work. But what about FMLA leave during breaks and lunches, when the employee never actually leaves the office? Can that time be used for intermittent FMLA leave?

According to this recent case, periodic time away from one's desk throughout the work day -- but not out of the office -- is not FMLA leave. The court was "unable to locate a case where 'temporary' FMLA leave was awarded in such a context-where the leave given does not constitute time away from a place of work."

The answer to today's "fact or fiction" is fiction.

Better settle the case, right?

Not if you're Flannery Oaks Guest House. Instead, you move for summary judgment and try to get your former employee's FMLA retaliation claim dismissed.

Was Andy Reid or Norv Turner calling that play? 

How do you think it worked out for ole Flannery Oaks? (Hint: it failed miserably). Find out for sure after the jump...

Continue reading "HR testifies that employee firing was FMLA retaliation (you read that right)" »

Welcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.

[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]

So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.

Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"

[Editor's Note: I'm throwing Thicke a bone here. Don't you think? According to IMDB.com, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]

So that's the idea. More great posts and imaginative casting decisions, after the jump...

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Continue reading "Employment Law Blog Carnival: Hollywood Casting Call Edition" »

About a year-and-a-half into Sara Jaszczyszyn's employment with Advantage Health Physician Network ("Advantage"), she began taking intermittent FMLA leave for back pain that which she stated left her "completely incapacitated."

About five weeks into her leave, several of her coworkers saw pictures of her on Facebook consuming adult beverages at a local Polish beer festival. (Although she doesn't appear to be "completely incapacitated," she does appear to be having a good ol time, doesn't she?)

Yadda, yadda, yadda, Advantage fires Ms. Jaszczyszyn and she claims FMLA retaliation.

Who wins? That's easy. Remember folks. An honest belief is all it takes to fire a suspected FMLA abuser. That is, so long as the employer truly believes in its reason for terminating an employee on FMLA -- and that reason is not FMLA-motivated -- , the employer wins even if its reason is ultimately found to be mistaken, foolish, trivial, or baseless.

As the Court explained (in this opinion), Advantage wins:

Advantage "rightfully considered workplace [FMLA] fraud to be a serious issue," and its termination of Jaszczyszyn because of her alleged dishonesty constituted a non-retaliatory basis for her discharge. While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage's justification as pretextual, Advantage's investigation was adequate and turned in large part on Jaszczyszyn's own behavior at the termination interview, which she does not address at all. She did not refute Advantage's honest belief that her behavior in the photos was inconsistent with her claims of total disability. Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.

A word of caution to employers: Don't use the "honest belief" rule as a reason not to investigate suspected FMLA fraud. Advantage did the right thing. After it learned about the Facebook photos, it investigated by, among other things, allowing Jaszczyszyn to explain the discrepancy between her claims and the photos. But Jaszczyszyn repeatedly failed to respond at all, let alone offer such a justification. So Advantage fired her.

(h/t Chad Hatmaker)

I'm punching out this post on Sunday night, from my home in Philadelphia, before the brunt of Hurricane Sandy strikes. Like many of you, I'm locked, stocked, and ready to go, hoping that the impact is far less than is forecasted and the recovery is easy.

Inevitably, however, for you good folks -- especially if you have closed shop on Monday, employment issues are sure to arise. To help you out with some of them, read on past the jump...

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Continue reading "An HR guide to the workplace implications of Hurricane Sandy" »