Wednesday, June 1, 2016

By now, you’re likely aware (and if you’re not, you should be) that, in April, the U.S. Department of Labor (“DOL”)issued a new “Employee Rights Under The Family And Medical Leave Act” poster, to replace the prior poster on this subject.

The DOL has made clear that the old poster (revised Feb. 2013) is still sufficient – until further notice – to meet the posting requirement under the FMLA regulations. Thus, you’ve probably already given some thought as to whether and when to proceed with updating your posters.

As you consider this step, however, have you also considered whether the new poster impacts your policy?

The FMLA regulations provide that, if an FMLA-covered employer has any FMLA-eligible employees, and if the employer has a written policy on the subject of leave/benefits, then the employer must ensure that its policy contains the same information that is in the FMLA poster. (The notice requirements are discussed at pp. 12-13 of the helpful new publication from the DOL, “The Employer’s Guide to The Family and Medical Leave Act”.)

Accordingly, now is a good time to review your FMLA policy to ensure that it contains all of the information that is in the new poster. Of course, it is to your benefit to include additional provisions in your policy, such as a prohibition on the misuse of FMLA leave. But at a minimum, all of the information that is in the poster must be included.

Note that “all” means “all”; your policy must include, for example, not only information about the employee’s rights and responsibilities, but also the information in the poster regarding the employer’s responsibilities, along with enforcement information such as the employee’s right to file a complaint with the U.S. Department of Labor (“DOL”) and the DOL’s contact information.

For this reason, some employers choose to comply with the FMLA notice regulations by attaching a copy of the FMLA poster to their handbook, instead of incorporating all of the language in the poster into their policy. If that’s your approach, just ensure that you update the attachment in light of the new poster.

Either way, however, you should make sure that your policy is compliant.  And because the information in the poster represents basic FMLA information, you should take steps to review and, if necessary, revise your FMLA policy now, even if you wait to hang up the new FMLA poster.

Tuesday, January 26, 2016

ThinkstockPhotos-496854082This last post in our three-part series on managing FMLA fraud is about how negative commentary – including emails with smiley face emoticons – can subvert an effort to show that a termination decision was based on an honest belief that the employee was misusing FMLA leave. (The first two posts in our series are available here and here.)

The case of Apatoff v. Munich Re Am. Servs., No. 11-7570, 2014 U.S. Dist. LEXIS 106665 (D.N.J. Aug. 1, 2014), involved an employee who took extended FMLA leave for asthma. Over the holidays, video surveillance showed the employee shopping on more than one occasion and carrying boxes as she moved into a new home. Based on this evidence, she was terminated for abusing FMLA leave.

During the ensuing litigation, the employee provided evidence that her physician had instructed her to engage in exercise and stay active, and had told her to remain on leave to determine whether airborne material in the workplace triggered her asthma. In its summary judgment motion, the employer argued that, even though it may have been mistaken, the employee’s FMLA retaliation claim should fail because the employer honestly believed the employee was misusing her leave.

The court rejected this argument, noting that the employer had failed to obtain information about the parameters of the employee’s medical restrictions before terminating her. Added to this fact was evidence that the employer’s management staff had sent email messages to each other that included comments like, “Nice. Where do we go from here,” in connection with information about the surveillance results, and had used smiley face emoticons when discussing the employee’s termination. This email commentary combined with the lack of follow-up during the investigation suggested that the termination was retaliation for the inconvenience caused by the employee’s FMLA absence.

Unfortunately, negative and snarky remarks like those involved in Apatoff are all too common in the workplace. Even leave administrators and supervisors who generally recognize the value of the leave rights and protections provided by the FMLA may find themselves inadvertently creating “Exhibit A” for a trial by expressing frustrations with employees’ use of FMLA and perceptions of FMLA fraud orally or in writing.

Lesson to learn: Avoid negative and emotional commentary in both general communications concerning the FMLA and communications about investigations into potential FMLA fraud. Employers should stick to the facts and conduct a proper investigation to avoid undermining efforts at managing the FMLA in the workplace.


Monday, January 25, 2016

On January 20, 2016, the federal Department of Labor (“DOL”) issued guidelines to employers on the subject of “joint employment.” Most of the buzz regarding the DOL’s publications centers around the new “Administrator’s Interpretation” of joint employment under the Fair Labor Standards Act (“FLSA”) and the resulting implications for joint liability under federal wage-and-hour laws.

However, the DOL didn’t stop with the FLSA. Instead, the DOL also issued a new “Fact Sheet”, Fact Sheet #28N, addressing joint employment principles under the Family and Medical Leave Act (“FMLA”).

Joint employment exists when an employee is employed by two or more employers, such that both employers have responsibilities under the FMLA. Fact Sheet #28N does not provide a detailed discussion of when joint employment will be found to exist for FMLA purposes, noting instead that the analysis is the same under the FMLA as under the FLSA. Importantly, however, Fact Sheet #28N provides a “staffing company” example, thereby reminding employers that joint employment will often be found to exist when a staffing company places employees at client sites.

In a joint employment situation under the FMLA, it is necessary to identify which employer is the “primary” employer and which employer is the “secondary” employer. Fact Sheet #28N discusses the factors that will be considered in this analysis, including:

  • who has authority to hire and fire, and to place or assign work the employee;
  • who decides how, when and the amount that the employee is paid; and
  • who provides the employee’s leave or other employment benefits.

Importantly, both the primary and secondary employer must count the jointly-employed employee in determining employer coverage and employee eligibility under the FMLA. In addition, both employers have obligations to avoid FMLA interference and discrimination, and to comply with certain record-keeping requirements.

Otherwise, however, the responsibilities of the employers are different. The primary employer is responsible for giving required notices, providing FMLA leave, maintaining group health insurance benefits, and restoring the employee to his or her job following leave.

While the secondary employer generally does not have those responsibilities, the secondary employer is responsible for job restoration in certain circumstances, such as “when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer.”

Fact Sheet #28N includes a comparison chart to help employers identify their FMLA responsibilities in a joint employment situation.

A final important point, albeit one that is not discussed in Fact Sheet #28N: It is not uncommon for companies to directly hire individuals who were previously assigned to them through a staffing agency. Assuming a joint employment relationship existed during the staffing agency assignment, the company which is now the individual’s direct employer may be obligated to count the individual’s period of service (months and hours) through the staffing agency when determining the individual’s FMLA eligibility.

Tuesday, January 19, 2016

ThinkstockPhotos-112707613Continuing our three-part series on managing FMLA fraud (see our initial post here), this post addresses the importance of conducting a reasonable investigation, prior to taking adverse action, to develop a supportable “honest belief” of FMLA fraud.

The case of Hosler v. Fulkroad, No. 13-cv-1153, 2015 U.S. Dist. LEXIS 80801 (M.D. Penn. June 23, 2015), provides an excellent example of this principle. The employee requested leave for surgery and recovery, and submitted a doctor’s note in support of the request. The employer purportedly doubted the need for leave and terminated the employee while she was out.

Not only did the jury find in favor of the employee on her FMLA interference claim, but the court awarded liquidated damages, finding no credible evidence that the employer had a reasonable, good faith basis for its interference with the employee’s FMLA rights.

The court pointed out that the employer could not provide any factual basis for his personal opinion that the doctor’s note was fraudulent. Indeed, despite supposedly believing that the note did not come from the doctor’s office and that someone had forged the doctor’s signature, the employer failed to make any kind of reasonable inquiry with either the employee or her doctor concerning the validity of the note. Thus, the court imposed “significant consequences” for the employer’s “arbitrary, erroneous, subjective, and uninformed” action.

The importance of asking questions was also demonstrated in Dandridge v. N. Am. Fuel Sys. Remfg., No. 13-cv-573, 2015 WL 1197541 (W.D. Mich. Mar. 16, 2015). Video surveillance of an employee who called in an intermittent FMLA absence for migraines showed him entering and leaving a commercial property he owned during the time he was supposed to be at work. Relying on the video and the fact that the employee had, on four prior occasions, taken leave at the same time as another employee with whom he co-owned the property, the employer had the employee come in to the workplace and, without giving him a chance to explain, told him to resign or be fired for abusing FMLA leave.

In rejecting the employer’s motion for summary judgment on the employee’s FMLA retaliation claim, the court noted the employee had an explanation for the situation: he had received notice that the property had been burglarized and the police were involved, so he went to the property despite continuing to suffer from his migraine. The court faulted the employer for failing to investigate further before concluding that the employee was not incapacitated and unable to work, stating that while an investigation does not have to be “optimal,” this investigation failed because it was limited and singularly focused on the video recording.

The bottom line: While the legal standard for demonstrating an “honest belief” of FMLA fraud to defeat an FMLA claim varies by jurisdiction, it is always a good idea to avoid acting rashly or based on assumptions. To greatly increase chances of prevailing, employers should ensure that they conduct a reasonable investigation that includes gathering information from the employee and/or the employee’s provider as appropriate, before taking adverse action.

Monday, January 11, 2016

ThinkstockPhotos-466150788This post is the first in a three-part series of posts on managing FMLA fraud with tips from recent cases. In Alexander v. Bd. of Educ. of City Sch. Dist., No. 14 Civ. 8553, 2015 WL 2330126 (S.D.N.Y. May 14, 2015), for example, the court provided guidance on how FMLA policies can help support a termination decision when an employee misuses FMLA leave.

The employee in Alexander told her employer she needed intermittent FMLA leave to take her child to physical therapy appointments. Her request was approved after a doctor’s note confirmed the need for leave. Subsequently, the child refused to attend the appointments. Rather than update her employer about the situation, however, the employee attended classes while on leave during the scheduled appointment times. Trouble arose for the employee when she submitted a tuition reimbursement request for the course, and her employment was terminated for abuse of FMLA leave after she admitted these facts during the employer’s investigation.

Summary judgment for the employer on the employee’s FMLA retaliation claim – the obvious result – was granted. In doing so, the court rejected the employee’s argument that the motivation for her termination could not have been her abuse of FMLA leave, because she was “never advised that she had to apprise her employer of the need to terminate her FMLA intermittent leave” when she no longer planned to attend the physical therapy appointments. The court noted that, to the contrary, information on the employer’s website pertaining to its FMLA policy expressly stated that if it became apparent that an employee could resume work earlier than originally anticipated, the employee must notify the employer as soon as possible.

Takeaway: It’s always helpful with employment disputes, including those involving FMLA retaliation claims, to be able to point to specific policy language that the employee violated. In this case, the express requirement for the employee to notify the employer of a change in her need for leave won the day.

While not at issue in this case, other helpful policy language could include a statement that the submission of false information in support of a request for FMLA leave, or the abuse or misuse of approved FMLA leave, may result in discipline, up to and including immediate termination.

Friday, May 8, 2015

FormsIf you are responsible for administering your company’s Family and Medical Leave Act (“FMLA”) policy, you know that the associated FMLA forms can be both your best friend and your worst nightmare.

On the one hand, proper use of the forms – such as the various Certifications, the Rights & Responsibilities Notice, and the Designation Notice – can provide valuable information to help you evaluate and manage employees’ leave requests. On the other hand, attempting to comply requirements surrounding the forms, not to mention trying to understand the meaning of information received from medical providers – can be an exercise in frustration.

Below are some “best practices” relating to FMLA forms that may aid in the administration of your FMLA policy:

  • FMLA Employee Request Form: Although the Department of Labor (“DOL”) has not provided a template FMLA request form, employers are permitted to develop and use their own. While implementing such a form (including adding a reference to it in your policy) would not permit ignoring an oral request, requiring employees to submit requests in writing provides a clear method of requesting leave, establishes a record of what leave was requested and when, and creates an opportunity to reiterate expectations surrounding FMLA leave requests.
  • Deadlines: Become familiar with the deadlines for providing various notices to employees (e.g., Notice of Eligibility due within five days of being placed on notice that FMLA leave may be needed; Designation Notice due within five days receiving sufficient information to know whether the leave is FMLA-qualifying), and comply with them. Train supervisors to recognize and report a potential FMLA leave request so that you do not miss the deadlines.
  • DOL Templates: Use the template forms (notices, certifications) provided by the DOL. Doing so ensures that you meet all notice requirements as well as obtain all permitted information (and only such information). The forms can be found on the DOL’s website. Consider pulling the forms directly from the website each time you need them (as opposed to keeping copies in a file) to ensure that you are using the most up-to-date, non-expired form.
  • GINA Safe Harbor Language: Although the DOL is likely to revise the Certification forms at some point to include the GINA Safe Harbor language (essentially directing the medical provider to not provide genetic information), until then, the language should be added to (or included with) the forms and any other requests for medical information from providers.
  • Complete Forms: Ensure that all notices are appropriately completed. For example, if you will require a Fitness For Duty Certification in order for the employee to return to work at the end of the leave, you must inform the employee of this requirement in advance by checking the appropriate line on the Designation Notice.
  • Review Certifications Carefully: This is your opportunity to gather as much information as possible in order to confirm the need for leave, determine the type and amount of leave authorized by the medical provider, and identify the appropriate timing of a future request for recertification. So, take advantage of it by requiring that the Certification form be both complete (all applicable entries completed) and sufficient (responsive and not vague or ambiguous). If the Certification form has not been properly completed, return it to the employee with specific instructions about what information is needed, the deadline by which the information must be provided (allow seven days to cure), and the potential consequences for failing to comply.
  • Recordkeeping: Keep copies of all forms and other correspondence sent to and received from an employee relating to an FMLA request for at least three years. This will ensure that you not only comply with the recordkeeping requirements set forth in the FMLA and regulations, but that you have necessary evidence should an employee pursue an FMLA complaint.
Monday, April 20, 2015

On the eve of the March 27, 2015 effective date for the DOL’s final rule amending the definition of “spouse” under the federal Family and Medical Leave Act (“FMLA”), a Texas district court preliminarily enjoined the rule’s application to the states of Texas, Arkansas, Louisiana and Nebraska. The case is Texas v. U.S., No. 7:15-cv-0056 (N.D. Texas 2015) and the full opinion may be found here.

Under the final rule, employers must look to the state where the marriage was entered into (instead of the state in which the employee resides) to determine the employee’s spouse. The revised definition of spouse includes same-sex marriages, common law marriages, and same-sex marriages entered into abroad that could have been entered into legally in at least one state. The rule was enacted in response to the Supreme Court’s Windsor decision, which held that the definition of marriage (between one man and one woman as husband and wife) in Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. However, Section 2 of DOMA, the Full Faith and Credit Statute, which allows states to refuse to recognize same-sex marriages from other jurisdictions, was unaffected by the ruling.

In their pleading, the states argued that the final rule should be enjoined because it contradicted the Full Faith and Credit Statute, the statutory definition of marriage in the FMLA, and their individual state laws – which do not recognize same-sex marriages. The district court found that in issuing the final rule, the DOL had exceeded its jurisdiction and had improperly preempted state law. The DOL filed a motion to reconsider the injunction, but the district court denied the request on April 10, 2015.

The final rule is in effect for all other states. However, the Supreme Court will hear arguments later this month regarding the issue of whether states which do not recognize same-sex marriages should be forced to recognize unions performed in other jurisdictions. The outcome of that case may affect the Texas ruling and/or the FMLA obligations of employers in other states. Stay tuned…


Friday, April 3, 2015

BabyPreviously in this series of blog posts relating to the federal Family and Medical Leave Act (“FMLA”), we discussed which couples do not have FMLA rights under the definition of “spouse,” as well as the limitations that can be placed on couples’ leave rights when both spouses work for the same employer.

To wrap up this series, we ask a “couples” question that you may have been thinking but were afraid to ask: Do I have to let my employee take leave to care for a covered family member (such as a child or parent), when the employee has a stay-at-home spouse who may be available to provide the necessary care?

The bottom line: Yes.

The FMLA provides a right to eligible employees to take leave for qualifying reasons. In other words, if the employee is eligible for leave, the leave is needed for a reason covered by the FMLA, and the employee has leave time available, then the employee is entitled to take the leave.

There are no qualifiers on this right relating to whether the employee is the only person who can provide the necessary care. In fact, the DOL thought of this because the regulations expressly state that, “[t]he employee need not be the only individual or family member available to care for the family member or covered servicemember.”

Of course, if someone else is available to provide the care, an employee may choose not to take FMLA leave, especially when such leave will be unpaid. But that decision is the employee’s to make.

Tuesday, March 31, 2015

CoupleIn a prior post, we discussed which couples do not have federal FMLA rights under the new regulatory definition of “spouse.” Now that we know who can and can’t take FMLA leave as a husband or wife, the next question is: What limitations May an employer can put on FMLA leave when both spouses work for that employer?

  • Eligible spouses are entitled to a combined total of 12 weeks of leave (i.e., not 12 weeks each) during the applicable 12-month period for leave taken:
    • For the birth or placement of a child;
    • To care for the child after birth; and/or
    • To care for an employee’s parent with a serious health condition.

Note that this limitation applies only to the identified reasons for leave. This limitation does not apply, for example, with respect to leave to care for an employee’s child with a serious health condition. In that situation, both parents would be permitted to take up to 12 weeks of leave each to care for the child.

  • Eligible spouses are entitled to a combined 26 weeks of leave during the applicable 12-month period for leave taken for a combination of military caregiver leave and one of the foregoing reasons.
  • Where spouses use a portion of their entitlements for the foregoing reasons, they are each entitled to the difference between the amount of leave they have taken individually for such reasons and the 12 (or 26) weeks of leave for other purposes.

So, to look back at the example of the child with a serious health condition above, if both parents took six weeks to bond with that child after birth, each parent would still have six weeks of FMLA leave in the applicable 12-month period available to care for the child if the child became sick with a serious health condition.

In our next post: Does My Employee Get To Take FMLA Leave Even Though She/He Has A Stay-At-Home Spouse?

Friday, March 27, 2015

Couple with DogThe U.S. Department of Labor’s issuance of a final rule amending the definition of “spouse” in the federal Family and Medical Leave Act (“FMLA”) regulations has inspired us to prepare a new series of FMLA-related blog posts on the subject of “FMLA Rules for Couples.”

We start our discussion by asking what may not seem like the obvious question in light of the new rule: Which couples do not have FMLA rights under the new definition of spouse?

The answer is relatively straight-forward: Couples who are not legally married under U.S. laws, or whose lawful marriage outside the U.S. could not have been entered into in at least one U.S. state, are not considered “spouses” for purposes of the FMLA.

Thus, while opposite-sex couples in lawful marriages, same-sex couples in lawful marriages, and even couples married under common law all have FMLA rights as spouses, the FMLA does not provide the rights of a husband or wife to:

  • Individuals in a civil union;
  • Individuals who are domestic partners;
  • Individuals who are dating, living together, friends with benefits, etc. (i.e., not married).

Keep in mind, of course, that we are talking about the FMLA rights of spouses. The above rules do not mean, for example, that an unmarried parent (mother or father) would not be entitled to FMLA leave to bond with his or her newborn, or newly placed adoptive or foster, son or daughter (assuming the parent has a biological, legal, or in loco parentis relationship to the child). But the unmarried parent would not be entitled to FMLA leave to care for that child’s other parent.

Also, some state-law equivalents of the FMLA may have broader/different definitions and leave rights. So while the employee may not be eligible for leave under federal law, he or she may be entitled to leave under state law.

Up next: Leave Limitations when Spouses Work for the Same Employer