What happens when a registered nurse, who takes intermittent FMLA leave for her migraine headaches, has a such a bad one that it causes her to fall asleep at work? Can the company fire her? Will that violate the FMLA? Who wins this head-on collision?
Will Eric stop asking questions, and just answer them already?
Panthers. Broncos. Meh.
Doritos won the Super Bowl, amirite?
But, for the 10% of your workforce that may be missing work today, you’ll have to wait until tomorrow to get their opinions on the Super Bowl commercials. Many of those employees told you in advance that today would be a day off. But, what will you do about the others who don’t show up for work?
On Monday, one of my favorite HR bloggers, Suzanne Lucas a/k/a The Evil HR Lady, addressed (here) a reader question about whether a company can legally prohibit an employee from seeking other employment while on leave covered under the Family and Medical Leave Act.
As part of her post, Her Evilness asked for others to weigh in on the subject. ABA Journal Blawg 100 Hall of Famer, Jon Hyman, answered the call on his blog post yesterday. Jon concluded that the legal answer depends upon the scope of the policy.
1,250 hours.
An employee needs to have worked at least 1,250 hours during the 12 months prior to the start of leave under the Family and Medical Leave Act to be eligible to take qualified leave.
Lest anyone consider me a heartless mongrel. (Other than you plaintiff’s lawyers, of course). I understand that many folks suffer from migraine headaches. Really bad, debilitating, serious health condition migraines. I get it. And, I sympathize. I’m sorry.
That said, poll a room of HR professionals. With hella-side eye, they’ll tell you stories of employees — often the ones with performance, attendance, and disciplinary issues — taking intermittent leave under the Family and Medical Leave Act for migraine headaches. The ones that get especially bad on Fridays and Mondays. You know what I’m talking about.
“Are you a joint employer?”
No, that’s not my law school pickup line. That would be a terrible pickup line; I’d be a lonely, single, blogging employment lawyer, sitting alone by candlelight eating baked beans out of the can.
Actually, it’s the question that Dr. David Weil, administrator of the U.S. Department of Labor’s Wage and Hour Division, asks in this blog post. And, here’s his answer: “In a nutshell, joint employment exists when a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute.”
Does that sound like your business? Well, then, read Dr. Weil’s blog post.
Back when I had three kids — the one-year old (not pictured) is salting the sidewalk — I took some liberties with snow days and the Fair Labor Standards Act. I’m exempt of course (Executive exemption — like a boss!). For the kids, rather than worry about minimum wage or overtime, I just paid them in Pop Tarts. An honest day’s pay for an honest day’s work. Unless, they had dirty diapers. Then, I docked their pay.
Fast forward a few years. Now, I have four kids. So, with a big snow storm on the way, the older siblings can assume the position while the baby whips me up a hot toddy. Ok, coffee.
I like to pretend that I’m not in New Jersey. Let’s call it international waters. But for you folks in the “real world,” there are some Fair Labor Standards Act and Family Medical Leave Act implications if your business closes for the impending snow. Let’s break ’em down:
***Double checks Powerball ticket***
Dammit!
Oh, hi there. I didn’t see you come in. Now, get out of here and head over to Thompson’s HR Compliance Expert. You’ll find a new feature called “Opposing Counsel.” At various points throughout the year, I will debate HR-compliance issues with employee-rights lawyer, and my buddy, Donna Ballman. Think, my snark — times two. Plus, you get the added benefit of the point of view of an attorney from the dark side. (Donna’s probably telling her readers the same thing…LOL).
That was my KitKat! Spit it out! Spit it out, dammit! Hey, hey, turn off that camera!
Over the weekend, after the Hershey’s Chocolate World shenanigans, I read a Fifth Circuit FMLA retaliation opinion that, unfortunately, read like so many prior employment legal skirmishes.
Yep, I’m pretty sure that’s what Raekwon, Inspectah Deck, and Method Man are rapping about here. It’s FMLA, son.
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