The Employer Handbook Blog

Documentation is good; smoking-gun emails from the HR Manager not so much.

After the jump, I've got a few doozies which now have a financial institution going to trial on a former employee's age-discrimination and Family and Medical Leave Act claims.

Continue reading "HR Manager emails bolster employee's ADEA and FMLA claims" »

In the world of Human Resources, "hire slow, fire fast" generally holds true to avoid just about any lawsuit.

Unfortunately, for one NJ employer, it didn't get the memo. And now it finds itself having to defend against FMLA interference and retaliation claims at trial.

What did this employer do wrong and how can you avoid making the same mistake? Find out after the jump...

Continue reading "To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request)" »

In my years of practicing employment law, I've drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough. But just the other week, it occurred to me that I should probably add some language to the effect that supervisors should refrain from recommending the book No More Hysterectomies to any female employee who requests FMLA leave, especially to have a hysterectomy.

That recommendation would be stupider than stupid stupid. And, wouldn't you know it, a company in Ohio appears to have managed to screw that up.

I couldn't make this stuff up if I wanted to. Well, except for the part about the policy revision. That's pure BS. But the screw-up is not. Details after the jump...

Continue reading "HR 101: Don't suggest "No More Hysterectomies" to a woman on FMLA" »

Late last year, the US Department of Labor issued this fact sheet, which provides general information concerning the Family and Medical Leave Act's (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

Last month, the DOL followed up with the "Family and Medical Leave Act Employee Guide," a copy of which you can download here. A related webinar, which the DOL held on June 27, includes a list of frequently asked questions. You can view it here.

Although geared towards employees, these are both nonetheless good reads for HR professionals looking to hone their FMLA chops.

That according to a a new survey from The National Partnership for Women & Families.

The survey compared how state-based rights and protections compare to the 12 weeks of leave for new and expecting parents provided by the federal Family and Medical Leave Act (FMLA), the protections provided by the Pregnancy Discrimination Act (PDA), and the right to express breast milk at work provided to some nursing mothers under the Fair Labor Standards Act (FLSA).

The report card covers all 50 states, plus the District of Columbia. No state earned an A. Only 1/3 scored a C- or higher, while more than 1/3 flat-out failed. The highest grades went to California and Connecticut, each earning an A-. Locally, New Jersey ranked near the top with a B+, while Pennsylvania scraped by with a D.

One of my favorite reads on NJ employment law is Ogletree Deakins's New Jersey eAuthority. The June 2012 issue highlights several pieces of legislation now pending in NJ of which employers should take note. I've summarized four of them after the jump...

Continue reading "4 pending bills that could change the NJ employment landscape" »

Cool image, huh? I drawed it myself. The fact that I took the time to do that suggests that I am in no condition to blog intelligently. Plus, Pandora is on the fritz, so I am all sorts of pissy. Therefore, before I turn out the lights and lock the door at the office, how about some Slipknot -- anger issues, Eric? -- and "That's what he said" after the jump...

Continue reading "That's what he said: "Oktoberfest" & "No OT for you!"" »

Stop me if you've heard this one before...

• Employee gets bad performance review.
• Employee laments to HR about the pressures of work.
• Employee emails a company vice president requesting that he stop propagating company "propaganda".
• Employee accuses another employee of "dismantling the Spanish Department"
• Employee attempts to mass email the company.

Oh, it gets better..after the jump...

Continue reading "No FMLA claim for employee who mistakenly thought he was fired" »

Yesterday, the U.S. Supreme Court in Coleman v. Court of Appeals of Md. held that state employees have no cause of action under the self-care provision (last bullet point in the hyperlink) of the Family and Medical Leave Act. In plain English, if you work for a State employer, and you need time off work for a serious health condition that leaves you unable to perform the essential functions of your job, the FMLA does not require that your employer give you any time off. 

Yesterday's SCOTUS opinion does not affect the FMLA rights of two classes of eligible employees:

1. Employees of public agencies; and,


2. Employees who work for private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year - including joint employers and successors of covered employers.

Also, the Court reaffirmed that states (and the other employers listed above) may still face FMLA liability for violating the family-care provisions of the FMLA (first three bullets in the hyperlink). The Court also did not discuss the right to take leave under the Americans with Disabilities Act or various state leave laws.

I'm pretty sure that this is my wife's least favorite song. No, indeed, I am certain.

The Family and Medical Leave Act allows an employer to require that a employee's request for FMLA leave be supported by a certification issued by the employee's health care provider. An example of one of the right ways to do this, from a recent federal-court decision, follows after the jump...

Continue reading "The wrong way and the right way to request FMLA certification" »

In this case of first impression in the Third Circuit Court of Appeals, which covers PA, NJ, DE, and USVI, the court ruled that a supervisor in a public agency may be subject to personal liability under the Family and Medical Leave Act. The court further emphasized that there is "no reason to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned."

Holy Schnikes!

Details after the jump...

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Continue reading "Ouch, that hurts! Supervisors may be liable for FMLA violations" »

The United States Department of Labor announced here yesterday that it is issuing proposed rules that would expand military family leave provisions under the Family and Medical Leave Act and incorporate a special eligibility provision for airline flight crew employees.

Continue reading "Atten-shun! Expanded military leave FMLA rules are coming..." »

Last month, the U.S. Department of Labor published new fact sheets on its website. Employers and employees alike will want to check these out:

Here is a link to the FLSA fact sheet. This fact sheet provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.

The FMLA fact sheet, a copy of which you can find here, provides general information concerning the Family and Medical Leave Act's (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

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". So, let's get right to today's question:

That Eddie Employee is a gamer.

While filling up at the Gas-N-Gulp on his way to work, out of nowhere, a punk teen whacked Eddie across the face with a skateboard. Youch! Jaw broken, Eddie got back into his car, drove to work, and somehow managed to stumble into HR. Spitting out blood and teeth, Eddie asked Agatha Administrator for a week off from work to go to the hospital to have surgery to fix his ugly mug and recuperate. However, as Eddie slurred and lisped out his request, he never specifically mentioned the letters "F-M-L-A".

Let's assume that Eddie meets all of the length-of-service requirements under the Family and Medical Leave Act. Can he still take leave under the FMLA, even if he never utters those magic four letters.

You betcha. According to this FMLA fact sheet, Eddie only needs to provide "sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons (the employee need not mention FMLA when requesting leave to meet this requirement, but may only explain why the leave is needed)."

And if the employer fails to designate Eddie's leave as FMLA-leave, guess what? Eddie still has 12 weeks of FMLA leave that he can still use going forward. Although, under certain circumstances, the employer may be able to retroactively designate Eddie's jawbreaker leave as FMLA leave.

Back in 2005, a Pennsylvania federal court recognized in this opinion that an employee's FMLA rights become sacrosanct upon requesting FMLA -- even if the employee is not yet FMLA-eligible -- provided that the employee has satisfied all FMLA service requirements when the FMLA begins. Where would this most likely arise? Why with pregnancy, of course. Something like:

• Female employee starts work;


• A few months later, she gets pregnant and requests FMLA to commence upon childbirth; and


• She gets fired before giving birth.

Hey, those sound like the facts of Pereda v. Brookdale Senior Living Communities, Inc., a case decided in the Eleventh Circuit Court of Appeals last week. More on this case, together with a big helping of FMLA tips for employers, after the jump...

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Continue reading "Oh, baby? An employee's pre-eligibility FMLA request is protected" »