Employer Law Report

Tag Archives: FMLA

Are changes coming to the FMLA?

By Rachel Burke on

It has been a decade since the United States Department of Labor (DOL) made any changes to the FMLA regulations, but we now have an indication that the DOL is at least willing to consider issuing new regulations at some point in the next few years. The United States Office of Management and Budget announced that, by April 2020, the DOL will “solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”

Employers interested in offering suggestions for the DOL’s …

Court orders plaintiff in FMLA lawsuit to produce private social media content in discovery

By Brian Hall on

In many employment cases, the parties engage in a battle over content in the plaintiff’s private social media accounts. The recent decision from the U.S. District Court in Eastern District of Michigan in Robinson v. MGM Grand Detroit, LLC, Case No. 17-CV-13128 (E.D. Mich. 1/17/2019) illustrates well how an employer can demonstrate its right to this discovery. In Robinson, the plaintiff, a valet attendant for the defendant employer, filed a complaint alleging race and disability discrimination under Title VII, the Americans with Disabilities Act, and in retaliation for taking medical leave under the Family and Medical Leave Act …

New tax credit rewards companies that offer paid FMLA leave in 2018 and 2019

By Arslan Sheikh on

The federal Tax Cuts and Jobs Act of 2017 contains an often-overlooked tax credit for employers that provide qualifying types of paid leave to their full- and part-time employees. The credit is available to any employer, regardless of size, if:

  • The employer provides at least 2 weeks of paid family and medical leave annually for employees who have been with the company for at least 12 months
  • The paid leave is at least 50 percent of the wages normally paid to the employee

The IRS has issued a set of frequently asked questions and a notice to help employers understand …

U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues

By Brian Hall on

On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that
…

New DOL opinion letter may provide clarity as to when FMLA-mandated breaks are paid and when they are unpaid

By Porter Wright on

As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid.…

Sunday deliveries of FMLA paperwork: A recipe for disaster

By Rebecca Kopp Levine on

A recent case highlights the intersection of FMLA and workers’ compensation laws. Angela Samuel (Samuel) was employed by Progressive Casualty Insurance Co. (Progressive) as a retention specialist and primarily worked out of her home. While on a leave of absence covered by the Family Medical Leave Act (FMLA), Progressive notified Samuel that she needed to submit documentation in support of her FMLA request. Previously, Samuel’s documents in support of her FMLA leave were either never received or misplaced by Progressive.

On a Sunday evening, Samuel hand-delivered the paperwork to an unattended reception desk outside of a human resources department at …

DOL issues updated required posters for FLSA and EPPA

By Porter Wright on

The federal Department of Labor (DOL) has issued an updated poster for the “Employee Rights Under the Fair Labor Standards Act” poster, which is a federally required poster. The updated poster adds information on the rights of nursing mothers (to lactation breaks) under the FLSA, misclassification issues related to independent contractors and tip credits. In an effort to move forward with technology, the new poster also includes a scannable QR code which take employees to the DOL website for information on compliance with the FLSA as well as instructions on how to file a complaint. The poster is available here…

Director of human resources may be personally liable for FMLA violations

By Mike Underwood on

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, …

DOL joins NLRB in making joint employment an enforcement priority

By Rachel Burke on

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 …

UPDATE: Same sex marriage rule for FMLA halted in only four states

By Porter Wright on

We reported in February on a Department of Labor (DOL) rule permitting same sex partners who are legally married to take FMLA leave to care for their spouse, regardless of whether they live in a state that recognizes same sex marriage (so long as they were legally married in a state that recognizes same sex marriage). The law was set to go into effect March 27, 2015. On March 26, 2015, however, a group of attorneys general from Texas, Nebraska, Arkansas, and Louisiana obtained a preliminary injunction that delayed the rule’s implementation until the court considers the full merits of …

Handbook and other statements made about the availability of FMLA leave may be binding

By Rachel Burke on

In a decision issued by the United States Court of Appeals for the Sixth Circuit (the “Court”) on January 26, 2015, an employee who, but for statements made by his employer, would not have been eligible for leave under the FMLA was nevertheless found to be entitled to it. The Court’s opinion in Tilley v. Kalamazoo County Road Commission, et al. should serve as a warning to all employers that statements made to employees about their FMLA eligibility may be binding, even if the employees do not meet the eligibility criteria required by the statute.

The FMLA provides that an …

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

By Porter Wright on

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 …

Don’t Play Fast and Loose with FMLA rights!

By Porter Wright on

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 …

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

By Porter Wright on

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 …

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

By Brian Hall on

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 …

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

By Brian Hall on

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 …

No One Said Anything About Light Duty!

By Porter Wright on

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 …

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

By Porter Wright on

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 …

‘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”

By Porter Wright on

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, …

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

By Brian Hall on

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 …

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

By Porter Wright on

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 …

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

By Brian Hall on

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 …

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

By Brian Hall on

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 Oktoberfest by several of …

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

By Porter Wright on

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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