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Employer Law Report

Tag Archives: FMLA

Circuit Courts remind employers that notice is the key in administering the FMLA!

Posted in Leave Administration, Other Articles, Traps for the Unwary

Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to notify her of the consequences of not turning in an FMLA leave certification. Similarly, in Lupyan v. Corinthian Colleges, Inc., the Third Circuit reversed a summary judgment finding in favor of the employer because there was a factual dispute regarding whether the employer …


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Don’t Play Fast and Loose with FMLA rights!

Posted in Leave Administration

Concluding that the employer’s failure to notify a pregnant employee of her FMLA rights and to reinstate her to her former position or any other equivalent position after taking leave unlawfully interfered with her FMLA rights, the Sixth Circuit Court of Appeals in Clements v. Prudential Protective Services, LLC, reversed a district court finding of summary judgment in the employer’s favor.

Facts

Telitha Clements worked for Prudential Protective Services, LLC (“Prudential”) as a security guard in Detroit, Michigan from 2006 until she was laid off in 2009. Clements worked at the New Center Complex for years under a number …


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Two Ohio Cases Highlight That When It Comes to the FMLA, Employers Need to Set Their Radars to Detect Potential Interference Claims

Posted in Leave Administration

The Family and Medical Leave Act (FMLA) prohibits more than just retaliation — it also prohibits interference. More specifically, the FMLA provides: “it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA and interference claims arise when an employer’s actions prevent or interfere with an eligible employee’s rights under the FMLA. 29 USC § 2615.

Two recent Ohio district court cases highlight just how important it is for employers to keep the interference provision in mind when navigating employee FMLA requests.

First …


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Sixth Circuit Does Not Permit Amnesiac Plaintiff to Revive Memory Via Contradictory Affidavit

Posted in EEO, Leave Administration

I have to admit that I generally love it when a federal court judge begins an opinion with a flourish like this: “December 20, 2011, was defining day for Appellant Angela Powell-Pickett.” Almost made me think of Dickens’ “It was the best of times, it was the worst of times…” (OK, maybe not quite.) But I knew from that first line in the court’s opinion in would be a good one. And I wasn’t disappointed.

You see, on December 20, 2011, as the court points out, Ms. Powell-Pickett finally had her deposition taken in her lawsuit against her former employer …


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Sixth Circuit Upholds Summary Judgment for Employers in Two Cases Brought by Terminated Pregnant Employees

Posted in Leave Administration

Two Sixth Circuit decisions issued last week underscore the hazards associated with terminating an employee between the time that she announces her pregnancy and any time shortly after she returns from pregnancy leave. Fortunately, both decisions, which uphold lower court summary judgment decisions, also demonstrate that an employer can escape liability when it has valid reasons for the termination, even when the termination was made at a time that was temporally close to the pregnancy announcement or the pregnancy itself. In the first decision, Madry v. Gibraltar National Corporation, the court upheld summary judgment for the employer on Madry’s …


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No One Said Anything About Light Duty!

Posted in Leave Administration

Seventh Circuit Court of Appeals affirmed the District Court’s grant of Summary Judgment in James v. Hyatt Regency Chicago reminding employers they are under no obligation under the FMLA to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.

So here are the facts—Carris James was employed at Hyatt Regency as a steward for over 22 years. Although James was born with very poor vision, he was able to perform his job functions by wearing correctable eyeglasses and using magnifying glasses. Hyatt also accommodated him by increasing the …


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New FMLA Forms and Poster to Be Used on March 8, 2013; Employers Should Review and Change FMLA Policies Consistent with New Rules

Posted in Leave Administration

The DOL recently issued its final regulations regarding expansion of military caregiver and qualifying exigency leave and regulations affecting flight crews. These new rules take effect this Friday, March 8. We covered these rules when they were initially proposed by the DOL. The rules issued in their final form are consistent with our previous summary, and the official commentary and final rules can be accessed here.

The updated forms are available here, and the updated poster is available here.

What are the changes?

Most employers will need to be concerned only with the changes to leave available …


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‘Tis the Season For Holiday Workplace Issues – Download our Holiday eBook with FMLA Stocking Stuffer – “Three FMLA Holiday Stocking Stuffers: How to Avoid a Big Lump of Coal”

Posted in Leave Administration, Traps for the Unwary, Wage & Hour, Workforce Strategies

We hope you enjoyed our five-part series last week addressing the Top 5 Holiday Headaches for Employers. Due to popular demand, we have compiled this series into an eBook for you and have added a special bonus:

Three FMLA Stocking Stuffers: How to Avoid a
Big Lump of Coal

We couldn’t do a holiday-blog series and NOT include something about every employer’s favorite holiday topic. Like fruitcake, it is a gift that nobody really wants or knows what do with… the FMLA.

Here we tackle three prickly FMLA-holiday questions. First, do holidays count against an employee’s FLMA leave entitlement? Second, …


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Ohio Federal District Court Rejects Public Policy Wrongful Termination Claim Against Private Employer Based On First Amendment

Posted in Leave Administration, Workforce Strategies, Workplace Privacy

The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to …


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Anything You Post or Are Tagged in on Facebook Will Be Used Against You: The Sixth Circuit Upholds Honest Belief Defense to Employee’s FMLA Retaliation Claim Who Went on a Pub Crawl While on Leave, But Skirts Issue As Applied to FMLA Interference Claims

Posted in Leave Administration

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012) involves three seemingly-unrelated topics: social media, Polish festivals, and the honest belief defense to FMLA claims. When combined, however, they turn into a fun set of facts that the Sixth Circuit recently got to chew on.

The Facts

Advantage Health Physician Network ("Advantage") hired Sara Jaszczyszyn ("Plaintiff") to work at its Staffing Center Float Pool on a part-time basis. She eventually was promoted to a full-time customer service representative. Nine months in, Plaintiff began complaining of back pain, which was the result of an old accident, and asked …


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Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee’s Return From Alcohol Rehab

Posted in EEO, Leave Administration

The recent decision out of Texas in Sechler v. Modular Space Corporation highlights a recurring issue for employers — managing employees who return to work following rehabilitation for substance abuse. In Sechler, the plaintiff, a recovering alcoholic, was by all accounts an excellent employee for approximately 10 years until he experienced a relapse. He requested EAP services and, as a result received outpatient treatment for about a month.

Upon returning to work, he was asked to sign a "Return-to-Work” agreement, outlining the requirements with which he had to comply as a condition of his return to work. The Agreement specified …


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Sixth Circuit Rejects FMLA Retaliation Claim Based On Employer’s Honest Belief That Employee Had Committed Fraud

Posted in EEO, Leave Administration

Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an "honest belief" that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoterfest by several of …


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Supreme Court Says States Can’t Be Sued Over FMLA “Self-Care” Provision

Posted in Leave Administration

On March 20, 2012, in a 5-4 decision, the Supreme Court of the United States ruled that states cannot be sued for denying workers sick leave under the FMLA.

Daniel Coleman, an African-American male, was employed with the Maryland State Court of Appeals from March 2001- August 2007 and served most recently as executive director of procurement and contract administration. Coleman requested a 10-day medical leave under the "self-care" provision of the Family and Medical Leave Act ("FMLA") to deal with his hypertension and diabetes. Coleman claims he was forced to resign or be terminated because he was African-American and …


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One Week Left to Comment on Proposed Regulations to the FMLA

Posted in Leave Administration, Traps for the Unwary

The Department of Labor ("DOL") published proposed regulations to the Family and Medical Leave Act ("FMLA") on February 15, 2012, and the deadline for public comments has been extended through Monday, April 30, 2012.

The DOL introduced the proposed regulations to implement and interpret the 2009 amendments to the federal FMLA. They address three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.

The proposed regulations include several changes in regards to Military Family Leave. First, military caregiver leave has been expanded to cover eligible employees …


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Two Ohio District Court Opinions Highlight an Employee’s Obligation to Provide Proper Medical Certification to Qualify for FMLA Leave

Posted in Leave Administration

The FMLA is a confusing topic for employers and human resource professionals. Many times, the mere mention of the letters "F" "M" "L" "A" out of an employee’s mouth are enough for the employer to grant the employee leave, no more questions asked.

This is why two recent Ohio federal district court opinions are helpful to employers navigating the FMLA terrain as they highlight that an employer does not have to take the employee at his or her word that FMLA time off is needed. Rather, the employer has the right to request and receive proper medical certification of a …


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DOL Publishes its Proposed Rules on Military Family Leave and Flight Crews; FMLA Forms No Longer “Expired”

Posted in Leave Administration

Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members …


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Notice of Intent to Take FMLA Leave May Just Be Enough

Posted in Leave Administration

Last month, the Eleventh Circuit Court of Appeals (which has jurisdiction over Florida, Georgia and Alabama) held that a pregnant employee, who provided several months notice to her employer of her intention to take leave upon the birth of her child, was protected under the Family and Medical Leave Act ("FMLA") despite the fact that at the time she provided the notice, she was not eligible for FMLA. In short, the court held that the FMLA protected employees who make pre-eligibility requests for post-eligibility leave from both interference with the leave and from retaliation.

Appellant Kathryn Pereda ("Pereda") began working …


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USDOL FMLA Forms Have “Expired”

Posted in Leave Administration

We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor’s FMLA forms that we posted here. The Department has requested approval for the renewal of these forms from the federal Office of Management and Budget. In the meantime, employers may continue to use these forms. In order to comply with the Genetic Information NonDiscrimination Act ("GINA"), however, employers should also send a note to the healthcare provider that includes the following safe harbor language recommended by the EEOC:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other …


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The Sixth Circuit Settles It: FMLA Interference Claims Should Be Evaluated Under the McDonnell Douglas Framework

Posted in Leave Administration

Even though the FMLA has been around since 1993, the Sixth Circuit did not get around to designating the appropriate framework for reviewing FMLA interference claims until January 17, 2012.

In Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012) the Sixth Circuit held that the McDonnell Douglas burden-shifting framework applies to FMLA interference cases.

The case concerned an Arby’s franchise that terminated Gwendolyn Donald’s employment after it determined that she had been improperly discounting drive-in window orders and pocketing the difference. Among other allegations, she claimed that her employer terminated her employment in retaliation for …


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District Court Ruling Encourages Employers to Evaluate Relationships

Posted in Leave Administration

The recent Utah district court decision in Kuhn v. Comfort Hospice Care, LLC highlights the importance of evaluating relationships with professional employer organizations ("PEO’s"), as these relationships may cause an unknowing employer to be held liable under the FMLA.

Comfort Hospice Care, LLC ("Comfort") provides medical care to terminally ill patients in Las Vegas, Nevada and Layton, Utah.

Comfort had a contract with a PEO, Innovative Staffing, Inc. ("Innovative") for human resource assistance, and Comfort employees were listed as employees of Innovative for compensation purposes. Innovative employees had no supervisory control over Comfort employees, they just performed administrative functions.

At …


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Sixth Circuit Upholds Denial of ERISA-Based Income Protection Benefits; Plan Administrator Need Not Investigate Whether the Employer Violated FMLA

Posted in Employee Benefits/ERISA, Leave Administration

As demonstrated by the Sixth Circuit’s recent decision in Farhner v. United Transportation Union Discipline Income Protection Program, a well-drafted ERISA income protection or severance pay plan should enable the plan administrator to rely on the employer’s stated reason for termination of an employee, rather than conducting an independent review of the facts regarding the termination.

In May 2004, Mark Farhner, a trackman and conductor for the Kansas City Southern Railroad sought a three-month leave of absence for "medical reasons." KCSR’s human resources manager requested additional information from Farhner to justify his request. When Farhner’s vacation leave had been …


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Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer’s Telephone Calls

Posted in Leave Administration

As the Seventh Circuit in Righi v. SMC Corporation of America noted, it generally does not take much for an employee to preserve his rights under the FMLA; he must simply provide enough information "to place the employer on notice of a probable basis for FMLA leave."

When Robert Righi abruptly left a mandatory training seminar to care for his ill mother, however, he only sent an e-mail that said that he needed "the next couple days off" to arrange for his mother’s care and that he had vacation time available or "could apply for the family care act, which …


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City of Columbus May Require Employees Returning from Sick Leave to Provide Doctor’s Note

Posted in Leave Administration

Current and former employees of the City of Columbus, Division of Police, challenged the City’s Directive requiring employees returning from sick leave to submit a doctor’s note, stating the "nature of the illness" and whether the employee is capable of returning to regular duty to their immediate supervisors. The employees filed suit in the United States District Court for the Southern District of Ohio, alleging that the Directive violates the Rehabilitation Act, which prohibits discrimination against individuals with disabilities by programs receiving federal funding. The plaintiffs also alleged that the Directive violates the privacy provisions of the First, Fifth and …


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Employers: When it Comes to the FMLA, Leave Common Sense Behind

Posted in Leave Administration, Traps for the Unwary, Workforce Strategies

In Branham v. Gannett Satellite Information Network, Inc., No. 09-6149, 2010 WL 3431617 (6th Cir. Sept. 2, 2010), the Sixth Circuit Court of Appeals held that an employer is not necessarily entitled to rely on a “negative certification” submitted by an employee’s health care provider in denying a request for FMLA leave. 

The plaintiff-employee in Branham initially claimed that the absences for which her employment was terminated were related to a “serious health condition” within the meaning of 29 CFR § 825.113. Her employer responded by requesting that the employee produce a medical certification confirming her inability to work. However, the …


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