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Leigh Anne defends claims on a wide range of employment laws and issues, including discrimination, retaliation, the Family and Medical Leave Act, the Fair Labor Standards Act and other wage and hour laws, as well as labor arbitrations and unfair labor practice charges.

Last Friday, Sept. 11, 2020, the U.S. Department of Labor (DOL) issued new temporary rules on the Family First Coronavirus Response Act (FFCRA) to address certain previously-implemented rules the Southern District of New York recently struck down. As background, check out our post from Aug. 6, 2020, describing the decision from the Southern District of New York. And by address, the DOL in fact decided to, as they put it, “reaffirm and provide additional explanation” for its position on furloughs and intermittent leave, which, on the whole, benefit FFCRA-covered employers.

Continue Reading These new rules look a lot like the old ones: DOL stands firm in response to SDNY decision in its revised FFCRA rules

Conventional understanding of unemployment benefits leads to the logical conclusion that when employees are capable of working and offered suitable employment, they are not entitled to collect unemployment benefits. But like many other things in the post-COVID-19 world, conventional thinking no longer rules the day.

Last week, on June 16, 2020, Gov. DeWine issued an Executive Order addressing unemployment benefits eligibility during the COVID-19 epidemic. It provides that when an employee is called back to work in the same position as before the Director of Health’s special orders, there is a presumption that the position is considered “suitable work” under the Ohio unemployment insurance program. However, an employee may refuse to return to work and still be eligible for unemployment compensation if “good cause” exists for the refusal.
Continue Reading When can an employee in Ohio refuse to return to work and still get unemployment?

On April 1, 2020, the Department of Labor (DOL) issued a temporary rule interpreting the paid leave provisions under the Families First Coronavirus Response Act (FFCRA). We will follow with more detailed thoughts on the rule, but the highlights include:

  • Key definitions, including “child care provider” (defined as including unpaid family caretakers in addition to paid child care settings) and “telework”
  • Discussion of interplay between “stay at home” orders and “isolation or quarantine” orders, and the availability of paid leave in connection with those orders
  • Clarification on employees’ options and employers’ ability to require use of paid time off concurrently with expanded FMLA leave for school closures
  • Key information for employers on determining exemptions for employees who are health care providers or emergency responders, and who therefore can be exempted from FFCRA coverage
  • Instructions on counting employees for purposes of FFCRA coverage
  • Elaboration on the exemption for employers with fewer than 50 employees
  • Documentation retention requirements and content for claiming the tax credits associated with the FFCRA
  • Clarification that employers not covered by the traditional FMLA are not subject to a private right of action from an employee under the expanded FMLA


Continue Reading Department of Labor issues “temporary rule” interpreting paid leave under FFCRA

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

We are seeing more and more employers receive electronic notice of new EEOC charges through the EEOC’s new “digital charge” system. This system was piloted in certain EEOC districts starting last May. Starting Jan. 1, 2016, all EEOC offices will notify employers via email of new EEOC charges filed against them. However, this last month and a half we have continued to see a few new charges come in the traditional way via snail mail.

What happens when you receive a digital charge? The EEOC will send an email to the email address on file for the employer. The EEOC does not provide much guidance on how it determines which email address to use, but encourages employers to update their contact information with the EEOC by contacting their local EEOC office. Ask yourself who in your organization you want to receive first notice from EEOC that a charge has been filed, then make sure the EEOC has that person’s contact information. For employers in Columbus and points generally east and north, the appropriate local office is the EEOC Cleveland Field Office. For employers everywhere else in Ohio, your local EEOC office is the EEOC Cincinnati Area Office. Have operations outside Ohio? The EEOC’s local offices are listed here. We strongly recommend employers ensure the EEOC has the right contact information so that charges are routed appropriately within their organizations. If the EEOC local office sees that the employer has not logged into the system within ten days of the EEOC’s email notice, the local office is instructed to attempt to notify the employer again of the charge.
Continue Reading The EEOC enters the digital age with electronic notice of charges