Leave Administration

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Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:
Continue Reading EEOC issues new guidance on employer-provided leaves as a reasonable accommodation

What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.

The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, the company’s director of human resources maintained that the employee’s documentation was not sufficient. The company eventually established a deadline for submitting proper documentation and when the employee did not respond, terminated her for job abandonment.  The employee sued the company and the Director of Human Resources for alleged FMLA and Americans with Disabilities Act (ADA) violations.
Continue Reading Director of human resources may be personally liable for FMLA violations

Managing FMLA leaves that fall on holidays

Administering the FMLA is difficult. When an FMLA leave falls on a holiday, it becomes even more complicated. Employers must know how to answer three holiday-related questions. First, if a holiday falls during an employee’s FMLA leave, does that holiday count against the employee’s FMLA entitlement? Second, how is the FMLA administered when there is an extended plant, office or school shutdown? Lastly, must an employer provide holiday pay to an employee on FMLA leave?

Does a holiday count against an employee’s FMLA leave entitlement?

While many employers keep track of their employees’ FMLA entitlements in terms of days or even hours, the FMLA and its implementing regulations provide that employees receive 12 workweeks of leave in a one-year period. As a result, leave is calculated in workweek increments. Under 29 C.F.R. § 825.200(h), if an employee is off work for an entire workweek, even if it is a week in which a holiday falls, the employee uses a week of FMLA. Only when an employee is off work for less than an entire workweek will the employee have used a partial week of FMLA. For example:
Continue Reading How FMLA works during holidays

In prior posts (Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes,” and ; NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals ), we wrote about decisions by the National Labor Relations Board (NLRB) that expand the definition of joint employment and broaden potential liability for violations of the National Labor Relations Act. Last month, the U.S. Department of Labor (DOL) joined the NLRB in making joint employment an enforcement priority when it issued an Administrator’s Interpretation and a Fact Sheet relating to joint employment under the Fair Labor Standards Act (FLSA), as well as a Fact Sheet relating to joint employment under the Family Medical Leave Act (FMLA). Although the definition of joint employment under these acts has not changed, the DOL’s interpretation of the definition is expanding, and employers can expect that more of them will be subject to claims under the FLSA and FMLA in joint employment situations.
Continue Reading DOL joins NLRB in making joint employment an enforcement priority

Paid Sick Leave

In conjunction with the Labor Day holiday, President Obama signed a new Executive Order requiring paid sick leave for employees of federal contractors and subcontractors. This executive order comes on the heels of a patchwork of state and local paid sick leave laws and failed efforts to enact any federal paid sick…

The United States Supreme Court decision in Obergefell v. Hodges  requiring that all states recognize same-sex marriages is one of the more significant constitutional law decisions from the Court in many years. The impact of the decision extends in some ways to the workplace and to the day-to-day responsibilities of human resource and benefits professionals.…

Finding that the circumstances surrounding the plaintiff’s initial absence from work and his doctor’s note were enough for a reasonable jury to find that his employer was on notice of a request for FMLA protections, the Sixth Circuit Court of Appeals reversed the district court’s decision granting summary judgment to the employer in Festerman v.