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Total Articles: 204

What Am I Doing Wrong?? Common FMLA Mistakes (November 15, 2017)

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eleventh in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

At last! Not One, But TWO Court Decisions That Scale Back an Employee's Right to Take Additional Leave After FMLA is Exhausted

There may not be an issue that strikes more fear in the land of HR than how to deal with an employee who cannot return to work after FMLA leave expires. Is some additional leave beyond 12 weeks required? The answer is almost always ‘yes.’

When You Don't Train Your Managers About the FMLA, You're Begging for This Kind of Smackdown

When a manager learns that one of his employees is in the hospital for several days, that’s almost always enough information for the employer to have an inkling that the employee may need FMLA leave.

Massachusetts Federal Court Decision Highlights the Importance of FMLA Training and Compliance

Navigating leave issues can be difficult: There are several statutes that provide employees with different, yet sometimes overlapping rights, and every situation is unique. Employers must ensure that members of management and those responsible for addressing leave situations are aware of the applicable legal requirements and trained on them.

What Am I Doing Wrong?? Common FMLA Mistakes (October 4, 2017)

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the tenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Contacting Employees on FMLA Leave: Answers to 4 Inevitable Questions

Navigating employee leave issues can be a daunting feat for in-house counsel and human resources departments. One challenging and oft-overlooked situation rife with the potential for legal issues involves contact between employers and employees who are out on leave under the Family and Medical Leave Act (FMLA).

If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?

Imagine marketing director, Michelle, jamming to this Beyonce song in the middle of AT&T Stadium in Dallas. On that very day, however, she’s supposed to be recuperating at home after suffering a panic attack at work.

FMLA Causation Standard Slides Down

Navigating the waters of employee leave is tricky business for employers. At the federal level, FMLA requires “covered” employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. The question of the appropriate causation standard that must be proven in an FMLA claim is not unanimous among the Circuit Courts. In Woods v. START Treatment & Recovery Centers, the Second Circuit put its stake in the ground.

How to Bungle an FMLA Policy in 10 Easy Steps

The Family and Medical Leave Act (FMLA) has been around since 1993. And while there are a lot of requirements and regulations for employers to navigate, the basic obligations of the law are well known for the most part, and there is plenty of information and guidance available to help make FMLA compliance manageable. Despite this, employers continue to make easily-avoidable errors. Here are 10 ways an employer can bungle its FMLA policy and practices.

Hurricane Harvey and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?

Our thoughts and prayers are with those in Texas and Louisiana who are in the dangerous path of Hurricane Harvey. Join us sending a donation to those organizations performing rescue operations and providing much needed help to our fellow Americans in need.

Poorly Implemented FMLA Policies and Procedures are Killing Employers. Don't Be That Employer.

Poorly implemented FMLA policies and procedures are in the spotlight this week. And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.

What Am I Doing Wrong?? Common FMLA Mistakes (July 10, 2017)

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the ninth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

There's No Crying at Work! But if an Employee Does Cry, Is That Sufficient Notice of the Need for FMLA Leave?

Reports of my capture by a Sri Lankan sloth bear in the dry forests of Sri Lanka are greatly exaggerated.

Think Tanks Release Compromise Proposal for Paid Parental Leave

The American Enterprise Institute (AEI)-Brookings Working Group on Paid Family Leave has issued a new report analyzing the costs and benefits of implementing a national paid leave program, and laying out a compromise proposal for lawmakers to consider.

What Am I Doing Wrong?? Common FMLA Mistakes. (5.23.17)

"What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Sixth Circuit Extends "Cat’s Paw" Liability Theory to FMLA Retaliation Claims

Properly identifying the decisionmaker in an employment discrimination case is important because it is the intent of the decisionmaker that determines whether an adverse employment action was motivated by a discriminatory or retaliatory animus. Where an employer can show that the decisionmaker was free of such animus—either because the decisionmaker was not aware of the employee’s protected status or engagement in protected activity—the employee’s claim should fail.

What Should I Tell Employees on Leave About Their FMLA Usage? Everything!

When it comes to FMLA leave administration, “don’t sweat the details” is rarely a wise axiom. Details matter. A lot.

What Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the seventh in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Manager's Thoughtless Comment Resurrects Poor Performer's FMLA Claims

There may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut.

Fear of Failure – Terminating Employees with Extensive FMLA and non-FMLA Absences

It’s a scenario that frustrates many employers. An employee with extensive intermittent FMLA absences, possibly including absences for different covered reasons, is also absent for many unspecified or unprotected reasons which lead to progressive discipline. The employee’s absences eventually reach the point of warranting termination and the employee does not provide additional medical information to address the unprotected absences. The employer is prepared to proceed with termination but is concerned about whether it did enough to track protected absences and communicate with the employee to avoid FMLA interference and retaliation claims.

Can We Lawfully Terminate an Employee After He Submits a Vague Doctor's Note Seeking an Extension of Leave? In a Word, Yes.

An employee’s 12 weeks of FMLA leave has exhausted, and over the past several weeks, he’s provided you a series of vague doctor’s notes typically containing nothing more than a one-liner extending his medical leave of absence until his next appointment.

Do You Have a Gap in Your Benefit Eligibility Procedures? Issues Raised by Non-FMLA Reduced Schedules and Leaves of Absence

Most employers have procedures in place to ensure that an employee who takes leave under the Family and Medical Leave Act (FMLA), whether as a reduced schedule or an extended leave of absence, retains his or her eligibility under the employer-sponsored health plan. But many employers have gaps in their procedures when an employee’s reduced schedule or leave of absence occurs when the employee is not yet eligible for FMLA leave or after FMLA leave has been exhausted. Typically, the gap in procedures exists when the non-FMLA reduced schedule or extended leave arises from a work injury or as an accommodation under the Americans with Disabilities Act (ADA).

These Three Key FMLA and ADA Resources Will Help You Conquer the World

If you have any interest in vastly improving your FMLA and ADA mojo, here are three can’t miss resources you need to make part of your professional reading and education each spring:

Think Before You Call: Contacting Employees On FMLA Leave

How many employers have had this situation arise? An employee requests and receives FMLA leave. While they are out, the employee’s supervisor needs to locate a document, find out the status of a project the employee was working on, or a crucial question comes up that only the employee on leave can answer.

Trump Administration May Expand Proposal for Paid Maternity Leave to Fathers

During his campaign, President Trump proposed a plan to offer six weeks of paid maternity leave to mothers who give birth. The program would be funded through the unemployment compensation system. The Family and Medical Leave Act provides unpaid job protection, but it does not provide for paid leave. Earlier this week, President Trump and his daughter, Ivanka Trump, who has been a proponent of expanding paid maternity benefits programs, reportedly participated in a roundtable discussion with Canadian Prime Minister Justin Trudeau regarding women in the workforce.

Is Federal Paid FMLA Any Closer to Reality?

On Tuesday, February 7, 2017, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rosa DeLauro (D-Conn.) reintroduced the Family And Medical Insurance Leave (FAMILY) Act, which would create a national system of paid leave for employees. This is the third attempt in the last five years by these same legislators to create federal paid leave. But, with Republicans in control of the Executive and Legislative branches of our government, does the FAMILY Act stand a chance of becoming reality?

What Am I Doing Wrong?? Common FMLA Mistakes. No. 5

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fifth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Disclosing an Employee's Medical Condition May Result in an Automatic FMLA Violation

This is a story about Scott. He has a medical condition affecting his genito-urinary system. In the words of my two-year old, Maggie, this condition sounds yucky.

Should Employers Make Paid Parental Leave a Basic Employee Benefit? Considerations for Drafting a Parental Leave Policy

Netflix. Google. Proctor & Gamble. Accenture. IKEA. Greensboro, North Carolina. What do these have in common?

Does Paid Leave Become Reality in a Trump Administration? And Who is His Likely Choice to Head the Department of Labor?

Every other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical leave, of course!

What Am I Doing Wrong?? Common FMLA Mistakes.

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the second in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

FMLA Leave Not a Bridge to European Vacation

On October 31, 2016, the Fourth Circuit Court of Appeals issued a decision that confirmed an employer’s right to take adverse employment action against an employee who fraudulently uses FMLA leave. In Sharif v. United Airlines, Inc., Case No. 15-1747 (4th Cir., Oct. 31, 2016), the Court upheld United Airlines decision to discharge Masoud Sharif for fraudulently using FMLA leave, finding that “[t]o hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.”

FMLA Fraud Finding Leads To Employer Court Victory

An employer recently claimed a significant victory in a case brought by a former employee who believed he had been unfairly targeted for termination because of his Family and Medical Leave Act (FMLA) leave request. The federal court of appeals decision is significant because it provides support for those employers who wish to root out fraudulent abuse of FMLA leave from their workplaces, offering a blueprint for how to navigate such a situation.

Department of Labor to Seek Feedback Regarding the Family and Medical Leave Act

The U.S. Department of Labor (DOL) is looking to collect data from employers and employees regarding their respective “need for” and “experience with” the Family and Medical Leave Act (FMLA). The data collection period is expected to occur in 2017 and 2018. From employees, the survey will seek information regarding “use of leave, need for leave, and [] experience with FMLA-eligible leave.” For employers, the surveys will seek information regarding “employee use of leave and [] experience managing FMLA leave.”

Paid Family Leave Programs Get Competitive

When Deloitte, the national auditing, tax and consulting firm, recently announced its new paid family leave policy, HR professionals took notice.

What Am I Doing Wrong?? Common FMLA Mistakes

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. Over the upcoming months, we are going to highlight some of the more common mistakes employers can inadvertently make regarding FMLA administration.

When Employers Don't Recognize an Employee's Notice of the Need for FMLA Leave, They Pay the Price

As employers, we face a sobering reality: at every turn, the FMLA sets us up to fail.

Drafting Enforceable Separation Agreements and Releases Under the FMLA

Can you ask employees to waive FMLA rights? Depending on whether those rights are “prospective” or not, the answer might be “Yes,” at least in Eleventh Circuit. The Eleventh Circuit recently issued a decision interpreting, for the first time, the meaning of the term “prospective” as applied to the Family and Medical Leave Act’s (FMLA’s) prohibition of the waiver of prospective FMLA rights. In the past, when clients would ask about having an employee waive their FMLA rights in a separation agreement or settlement agreements, we would tell them, “Yes…but…you would arguably have to have it approved by the Department of Labor (DOL) or a court” for the release to be truly valid and not subject to being voided.

Sweet Justice! Dismissal of Bully's FMLA Claim Proves Employers Can Safely Terminate an Employee on the Heels of FMLA Leave

Such is the story of Tim, a manager for Tyson Foods. Over the course of several years, Tim had all the makings of a bully: in 2010, he was disciplined for intimidating a subordinate; in 2011, he was disciplined for openly harassing another employee; in 2012, he again was admonished for threatening an employee with termination for their (legitimate) use of overtime.

When Patient Care Needs and Employee FMLA Demands Conflict

A healthcare employer’s primary mission is to provide appropriate medical care and treatment to patients. In order to provide such care, healthcare companies rely on the steady and committed presence of competent, licensed professionals who are ready, willing, and able to perform the tasks necessary to make sure patients’ needs are met.

Why Should Employers Take Pregnancy Discrimination and Accommodation Seriously? Here Are More Than 500,000 Reasons Why.

Doris worked for the Chipotle restaurant chain. And she was pregnant. After she announced her pregnancy to her supervisor, Doris claimed her boss began monitoring her bathroom breaks (then berated her for taking too long), required her to “announce” her bathroom breaks to others, prohibited her from taking shift breaks, denied access to water, and eventually terminated her employment in front of other employees because she attended a prenatal doctor’s appointment.

Controversial Judicial Estoppel Ruling Overturned – But the Risk Remains

A former employee who the Alabama Department of Labor had ruled in an unemployment hearing was fired lawfully for misconduct was not precluded, or estopped, from later claiming she was fired unlawfully in retaliation for taking Family and Medical Leave Act leave, the U.S. Court of Appeals for the Eleventh Circuit has held. Simmons v. Indian Rivers Mental Health Ctr., No. 15-11658, 2016 U.S. App. LEXIS 10663 (June 13, 2016) (unpublished).

Watch Out – Human Resources Personnel Might be Found Individually Liable under the FMLA

In a recent decision, Graziadio v. Culinary Institute of America, the Second Circuit held that a Director of Human Resources could potentially be individually liable to a former employee for Family Medical Leave Act (“FMLA”) violations.

Chronic Conditions: Can an Employer Deny FMLA Leave When an Employee Does Not Attend Two Doctor Visits in One Year?

Frank, your night custodian, reports that he suffers from Crohn’s disease, a chronic condition that will cause him to miss work when the condition flares up from time to time, including his absence yesterday. Cleaning floors causes him a great deal of stress, which in turn exacerbates his medical condition, and yesterday was one of those days.

Department of Labor Releases New FMLA Poster

You may have heard the Department of Labor (“DOL”) released a new version of the Family Medical Leave Act (FMLA) poster on April 26th along with an updated Employer’s Guide to the FMLA.

USDOL Publishes New FMLA Employee Guide and Poster

As employers covered by the Family Medical Leave Act (FMLA) can attest, administering the FMLA’s regulatory framework at the employee level can consume substantial time and resources. Despite the expense associated with applying the complex and often counterintuitive regulations, the U.S. Department of Labor takes the position that “[t]he FMLA is working.”

DOL Releases Updated FMLA Resources

The US Department of Labor (DOL) has released an Employer Guide to assist employers in complying with the Family and Medical Leave Act (FMLA). In addition, the DOL has released a new version of the FMLA workplace poster. However, an employer that continues to post the February 2013 version of the poster will remain in compliance.

DOL Issues New FMLA Poster and Publishes Guide to Help Employers Administer FMLA

Earlier today, the Department of Labor announced that it soon will require employers across the country to post a new DOL general FMLA Notice in their workplaces. In issuing this new directive, the agency also unveiled a new guide to help employers navigate and administer the FMLA. Here’s the scoop:

Facebook + FMLA Leave = Termination

Had a great vacation? Post it on Facebook. Fun surfing? Post that too. Swam some laps while on FMLA leave due to a shoulder injury? You should probably keep that one to yourself. Employers continue to struggle with balancing their own marketing interests with the interests of employees in maintaining a social media presence. Of course, an employee’s use of social media may not always comport with an employer’s interests as identified in its social medial protocols or otherwise conflict with accepted practices. Take for example the recent decision from the Middle District of Florida.

PSL: How Does the Patchwork Grow? (Alabama)

Alabama is now a kibosh state, joining about a dozen others that prohibit municipalities from passing a law requiring employers to provide employees with paid or unpaid leave. The Alabama law, HB 174, also bars municipalities from requiring employers to pay employees for any leave required by federal law, e.g., the Family and Medical Leave Act.

Note to Self: Posting My Beach Vacation Photos on Facebook During FMLA Leave is Not a Good Idea

I always love a good social media FMLA smack down. It’s even better when the employer handles the situation in textbook fashion. Today’s installment offers both, while also providing a road map for employers when investigating suspected FMLA abuse.

ABA's Summary of 2015 FMLA Cases an Outstanding Resource for Employers, Attorneys

This is one of the most exciting days of the FMLA year for me. Literally, one of those Steve Martin “The phone books are here!” days.

A Big Yawner? DOL Issues FMLA Fact Sheet Regarding Joint Employers

Joint employer issues are all the rage right now. Recently, the National Labor Relations Board (NLRB) put the screws to McDonald’s in finding that the Company is liable “jointly” along with their franchisees for alleged labor violations. So, it’s not shocking to learn that the U.S. Department of Labor recently jumped on the bandwagon, putting in its two cents on joint employers.

FMLA FAQ: How Do Snow Days Affect FMLA Leave?

Q. Like many east coast employers preparing for the impending blizzard, we want to know how we calculate FMLA leave if our office is closed due to the weather. I have an employee out on FMLA. Do I count the snow day against this employee’s 12-week leave entitlement?

FMLA FAQ: Should an Employer Invite to the Holiday Party an Employee out on FMLA Leave ?

‘Tis the season for employer-sponsored holiday parties. And I’ve been queried several times about whether an employer should invite to the annual holiday party all of those employees who presently are on FMLA leave.

Employee Tells a Co-Worker That He Plans to Misuse FMLA Leave. Court Says It's OK to Demote 'Em!

Keith was a manager for Costco. By all accounts, he wasn’t a very good employee. The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.

DOL Continues to Warn Employers of Investigation of Systemic FMLA Issues

Edepartment-of-labor-300x300arlier this month, I had the pleasure of presenting on complex FMLA issues at the American Bar Association’s Annual Labor and Employment conference. During the session, entitled “The FMLA 20 Years Later,” we covered key FMLA notice and medical certification issues and other difficult FMLA scenarios.

FMLA FAQ: Can an Employer Require That an Employee Sign a Form Confirming He Took FMLA Leave for the Reason Provided (To Combat FMLA Abuse)?

Q. In trying to reduce the amount of FMLA abuse in our Company (about 30% usage), we are contemplating having employees returning from FMLA leave complete a form that asks why they were out, had they been out for this reason before (and when), and that they took leave for the reason they provided. Can we implement this procedure without violating the FMLA?

After He Allegedly Showed Up Drunk to Practice, Should Former USC Football Coach Steve Sarkisian Have Been Placed on FMLA Leave instead of Being Terminated?

A question was posed to me on Twitter this past week: Shouldn’t former University of Southern California (USC) football coach Steve Sarkisian have been placed on FMLA leave to get treatment for apparent alcoholism instead of getting sacked by USC? [Pun intended, of course.]

The FMLA Marriage Penalty: When Spouses Work for the Same Employer

One FMLA rule that tends to fly under the radar is the amount of FMLA leave available to married couples who work for the same employer.

When a Manager Makes Even One Stupid Comment after an FMLA Request, the Employer Pays the Price

How would you like to work alongside Jim, who engages in the following behavior:

DOL and EEOC Explain How They Will Approach FMLA and Reasonable Accommodation Enforcement

This week, I had the pleasure of presenting with Department of Labor and EEOC officials on key developments out of Washington with respect to leave management and accommodations. Our presentation was part of the annual conference of the Disability Management Employer Coalition. If you’re an employer and not a member of DMEC, you’re doing yourself a disservice. Find out more about the organization here.

Requesting FMLA leave does not give an employee greater protection against firing for reasons unrelated to FMLA.

The 8th U.S. Circuit Court of Appeals has determined that a customer service representative who was fired for performance issues during the same period of time in which she requested leave under the Family and Medical Leave Act (FMLA) to care for her child could not support her FMLA discrimination claim. Burciaga v. Ravago Americas, LLC, 8th Circ., No. 14-3020, July 2, 2015. The court’s dismissal of the claim was based on the fact that the employee was unable to show that the reason set forth by the company for her discharge — multiple shipping errors within a 17 day period – was a pretext for discriminatory treatment based on her request for leave.

FMLA Compliance Tips to Steer Clear of Trouble

The Family and Medical Leave Act continues to bedevil many employers. On this podcast, Ogletree Deakins employment attorney Steven Luckner discusses common FMLA pitfalls and how to avoid them.

Now That Same-Sex Marriage is a Constitutional Right, How Do Employers Administer FMLA Leave?

On Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution.

Paid Leave Expansion Funds Offered by DOL

In support of the Obama Administration's commitment to expand American workers' access to paid leave, the US Department of Labor (DOL) announced this week that it is offering $1.25 million in grants to help state and local policymakers study the feasibility of developing paid leave programs on a national scale. So far, California, Connecticut, Massachusetts, New Jersey, Rhode Island, the District of Columbia and several cities have passed laws allowing paid family and medical leave or earned sick days. While this may indicate an emerging trend, the US still lags far behind most other industrialized nations.

Policy Manual Update: DOL Issues Final Rule Revising Definition of Spouse Under the FMLA

On February 23, 2015, the U.S. Department of Labor (DOL) issued a Final Rule updating the Family Medical Leave Act's (FMLA) regulatory definition of "spouse" to include same-sex couples. Previously, the definition of "spouse" did not include same-sex spouses if the employee resided in a state that did not recognize his or her same-sex marriage. Now, eligibility for FMLA protections shall be based on the "place of celebration," or the location where the individual was married. This means that a couple married in Illinois, a state that recognizes same-sex marriage, would be entitled to spousal FMLA leave even if they later reside in a state that does not recognize the union.

DOL Defines a Married, Same-Sex Partner as a "Spouse" under the FMLA

Executive Summary: Effective March 27, 2015, the Family and Medical Leave Act (FMLA) is revised to define a "spouse" to include married, same-sex partners regardless of the state in which they reside. This change gives same-sex couples the same FMLA rights and protections as heterosexual couples.

Texas Court Puts a Halt on DOL Enforcement of the New FMLA Rule Extending Leave Rights to Same-Sex Couples

A federal judge in Texas granted an injunction on Thursday that (for the time being) has stopped enforcement of the DOL’s final rule regarding the definition of spouse.

Check Out ABA's Summary of 2014 FMLA Court Decisions -- An Excellent Resource for Employers

Want to read about nearly FMLA case that was either dismissed or allowed to advance toward trial? Want a snapshot of what employers got right and what they got wrong in the land of FMLA?

Same-Sex Spouses to be Covered by FMLA as of March 27, 2015

On February 25, 2015, the U.S. Department of Labor (DOL) finalized a new rule (which was published in the Federal Register) expanding protections under the Family and Medical Leave Act (FMLA) for same-sex married couples.

It's March 2015. The DOL's Model FMLA Forms Expired Just Days Ago. Now What?

On February 28, 2015, the DOL’s recommended FMLA forms expired. And on March 1, the sun still rose in the east. Life, as we know it, forged on.

DOL Issues Final Rule Extending FMLA Leave Rights to Same-Sex Couples: Here's Everything Employers Need to Know

The Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status. This rule change will impact the manner in which employers administer FMLA leave, so I’ll quickly get down to the details:

Resource Update: Parental Leave Laws in the U.S. and Abroad: Evolving International Standards

Parental leave laws can vary greatly from country to country. Multinational employers must be aware of the parental leave laws of all the jurisdictions in which they have employees and may need to modify their policies as one policy may not accommodate the requirements of all jurisdictions. Tiffany Downs and Scott Wagner, attorneys in FordHarrison's Employee Benefits practice group, compare parental leave laws in the U.S., UK, Italy and Brazil and discuss several action items for employers in Parental leave laws in the U.S. and abroad: Evolving international standards, a two-part article published by InsideCounsel magazine. The article is available on FordHarrison's Knowledge Base here (part 1) and here (part 2).

Want to Drastically Improve Your FMLA and ADA Expertise? My Recommendations on the Top FMLA/ADA Conferences to Attend

Throughout the year, HR professionals and attorneys ask me for my recommendations on the very best conferences to learn more about the FMLA and ADA. The “best,” of course, is in the eye of the beholder. In my humble opinion, however, the conferences highlighted below are can’t miss seminars if you want to expand your knowledge of the FMLA and ADA or if you spend much of your professional lives in these areas:

Employer's Poorly Drafted FMLA Policy Allows Employee to Advance FMLA Claim (That Should Have Never Seen the Light of Day)

If this story won’t cause you bring your FMLA policy up to snuff, then I’ve lost all hope.

President Obama Pushes Employers to Provide Paid Leave to Their Workers; What is the Impact on Employers?

Yesterday, President Barack Obama took the most significant steps yet to push for federally mandated paid leave for all American workers. In addition to signing a presidential memorandum directing federal agencies to advance up to six weeks of paid sick leave to federal employees with a new child, he also called on Congress, states and cities to pass legislation to allow millions of workers to earn up to one week of paid sick time each year. He also plans to ask Congress for more than $2 billion to encourage states to create paid family and medical leave programs.

FMLA FAQ: How Do I Calculate FMLA Leave Where My Employee's Work Schedule Varies From Week to Week?

Q: Several of my employees’ workweeks vary from week to week. Some might work 30 hours one week and 40 hours the following week. How do I calculate their intermittent FMLA leave in any given week?

The Best of 2014: Sending FMLA Notices by Mail/Email, Requiring Doctor's Notes for Intermittent FMLA Absences Among Most Popular Posts This Year

It’s the final week of the year, so while everyone else in the world is playing with their latest version of iPhone and other new electronic gadgets, I spend my time analyzing this year’s FMLA blog posts and agonizing over how I can deliver the FMLA to your virtual door in an even more efficient and effective way in 2015. [In light of this revelation, I trust you all would jump at the chance to spend time with me during holiday break. Right?]

FMLA FAQ: Is An Employer Required to Pay a Prorated Amount of Annual Bonus after Employee Takes FMLA Leave?

It’s the end of the year. And with the end of the year comes questions from my clients about whether they need to account for an employee’s FMLA leave when doling out year-end bonuses. In other words, is an employer obligated to pay a bonus based on a “goal” when the employee missed the goal because he took FMLA leave during the year?

FMLA Leave for Headache Effectively Converts Full-Time Position into Part-Time Position; Employers' Shrieks Heard Across the Country

This one is a real headache.

Happy Thanksgiving from my Lovable FMLA Abuser, Albuquerque Turkey

There is much to be thankful for this Thanksgiving, and I continue to be humbled by your support of this crazy, little FMLA blog. I am entirely grateful for your willingness to read and ponder my continued FMLA ramblings.

Managing FMLA Red Flags and Staying Ahead of the Trends: A Recap of our Webinar

Thanks to those who attended my webinar last week with Ellen McCann on “Managing Red Flags and Staying Ahead of the Trends.” If you missed the program, you can access the webinar and materials here.

"I Got Stuck in the Blood Pressure Machine at the Grocery Store and Couldn't Get Out!": How Employers Deal with the Most Outrageous Excuses for FMLA Leave

Don’t you hate it when someone glues your windows and doors shut so you cannot make it to work? Hasn’t happened to you? According to a recent CareerBuilder survey, this may very well have happened to one of your co-workers the last time he was absent from work.

When an Employee Requests FMLA Leave for a Workplace Injury, Is the Employer Required to Report it as an OSHA Event?

An issue that implicates both the FMLA and OSHA? Normally, I’d yawn and take a cat nap along with you.

What Employers Can Learn from Physicians When It Comes to Administering the FMLA

Earlier this month, I took one for the team. And I survived. I had the privilege of presenting to a number of employers and health care providers at the annual “Impairment Without Disability” conference, an event sponsored by Mayo Clinic which brings physicians and employers together to share their common knowledge, experiences and goals, and work together to improve and eliminate unnecessary disability.

FMLA FAQ: Can We Terminate an Employee for Working a Second Job While on FMLA Leave?

Q: One of our employees has taken FMLA leave for anxiety attacks. Recently, we found out that she is working a similar job for another employer at precisely the same time she should be working for us. Can we deny her the right to return and terminate her employment because of this leave abuse?

Did a Court Just Allow an Employee FMLA Leave to Care for Her Grandchild?

Grandparents across America are celebrating this week. And they have Suzan Gienapp to thank.

Think Like a World Cup Goalie to Avoid the Paralysis of FMLA Abuse

If you’re anything like me, you’ve been swept up in the excitement of the World Cup over the past couple of weeks. However, now that we have entered the Round of 16, one thing leaves me both fascinated and unsettled about the game: how the art of penalty kicks can decide which team advances and which one goes home.

Family Medical and Leave Act Violation Costs Employer $536,000

An employee who was replaced by an outside consultant while on medical leave and later discharged recently won nearly $103,000 plus 100% liquidated damages, attorney’s fees and prejudgment interest for violations of the federal Family and Medical Leave Act (“FMLA”). This is a costly reminder that employers must take care when dealing with employees who go on leave.

Obama Administration Announces Proposed Rule Extending FMLA Leave Rights for Same-Sex Couples

The Department of Labor announced today a proposed rule that would allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.

Are Inflexible Leave Policies Lawful After All? One Court Leaves Employers Salivating

When it comes to leave as a reasonable accommodation after FMLA leave is exhausted, employers have been conditioned to simply believe: inflexible leave policies bad, flexible leave policies good. In fact, many of us have become so good at this conditioning it would make Ivan Pavlov proud [you know, the guy who conditioned his dog to salivate when food was presented].

FMLA FAQ: Am I Required to Pay My Employee for Holidays Occurring During FMLA Leave?

There must be something in the water, but several clients have asked me this week whether they are required to pay an employee for the Memorial Day holiday even though the employee was out on FMLA leave. Interesting question, and the answer is fairly straightforward: treat them the same way you would treat another employee on non-FMLA leave. This issue is governed by 29 C.F.R. § 825.209(h), which states:

New DOL FMLA Branch Chief: Expect Even More On-Site FMLA Investigations and Focus on Systemic FMLA Compliance Issues

This past December, the Department of Labor quietly turned its FMLA enforcement over to a new leader. After the retirement of FMLA Branch Chief Diane Dawson, who led the DOL’s FMLA enforcement for several years, the DOL turned to longtime DOL FMLA policy guru Helen Applewhaite to head up the agency’s FMLA efforts.

Can an Employee Decline FMLA Leave Even though the Absence is Covered by the Act?

What do you do when one of your employees has informed you of what clearly is an FMLA-triggering event (she needs to care for her dad who is seriously ill in the hospital), but then tells you she doesn't want the absence designated as FMLA leave?

The Lesson of EEOC v. UPS and Automatic Termination Provisions: Engage in the ADA Interactive Process

Let me share a story about UPS, although in the end, this story has nothing to do with UPS.

ABA's Summary of 2013 FMLA Cases a Critical Resource for Employers, Attorneys

Calling all FMLA nerds! You'll want to read this.

What Happens in Vegas . . . May Be Protected FMLA Leave

On January 28, 2014, the Seventh Circuit Court of Appeals agreed with a district court and found that an employee’s trip to Las Vegas with her terminally-ill mother qualified as leave under the Family and Medical Leave Act (FMLA). See Ballard v. Chicago Park District, No. 10-C-1740, January 28, 2014.

A Triple Dog Dare: Take These Five Steps in 2014 to Drastically Improve Your FMLA Compliance

It's 2014. And I'm so cold, I can barely peck at the keyboard to type this post. Nevertheless, it's time to get back to work in the New Year, which always is an ideal time to review and button up your FMLA practices. Let's face it: before we know it, six months will have passed and summer vacation will be luring us away from work. Will you really want to audit your FMLA practices then? Only if you're me.

Happy Festivus...uh, I mean, Happy Holidays...and a Happy New Leave Year!

Many years ago, on December 23, Frank Costanza introduced Festivus to us. Whether it was the Airing of Grievances, Feats of Strength, or the aluminum pole, yet another Seinfeld episode had us in stitches.

"Eating Turkey Made Me Fall Asleep and I Missed my Shift": How Employers Can Deal with the Most Outrageous Excuses for FMLA Leave

According to a recent CareerBuilder survey, nearly one-third (32 percent) of your employees have called in sick when they're not actually sick. Perhaps just as notable, 30 percent of your employees admit that they have reported to work despite actually being sick. The reason? So they can save their sick days for when they’re feeling well.

Employee with Crying Spells after Daughter's Sexual Assault Has Viable FMLA Claim

Kris was forced to endure the unthinkable: her daughter had just become the victim of a sexual assault. In the weeks that followed, Kris alerted her employer of the assault and the care her daughter would require in the time ahead. Kris suffered too. As her doctor would later report, she had crying spells, a lack of energy and an inability to focus or concentrate.

Calculating FMLA Leave: What Employers Need to Know

The Family Medical and Leave Act (FMLA) provides job security to employees who require time away from work due to illness or the need to care for family. By some accounts, the FMLA is one of the most difficult employment laws for an employer to administer and therefore is a risk management “legal labyrinth.” In particular, the seemingly simple task of calculating the duration of FMLA leave can be daunting.

Legal Alert: Employers Should Be Aware of the Risks of Unexpected FMLA Liability

Executive Summary: While most companies are aware of the liability they may face if they violate the FMLA, a recent decision from the Eleventh Circuit serves as a reminder of just how important it is for employers to train human resources personnel, as well as managers and supervisors, on how to properly handle leave requests. In Dawkins v. Fulton County Gov't, (11th Cir. Sept. 30, 2013), an employee sought to bring a claim of FMLA retaliation based on a manager's one word response of "Approved" to an e-mail requesting both emergency and FMLA leave, even though she did not comply with the employer's medical certification requirements.

DOL Issues ERISA Guidance on Same-Sex Marriage; Is FMLA Guidance Next?

We have been sitting on the edge of our seat [ok, perhaps I'm on the seat alone] as we await the Department of Labor's anticipated regulations interpreting how the Supreme Court's DOMA decision impacts the definition of "spouse" under the Family and Medical Leave Act.

What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave

Hello...hello...hello...is there anybody in there? Just nod if you can hear me. Is there anyone home?

Positive performance reviews do not negate employer's ability to fire employee upon discovery of previously unknown poor performance.

According to the 4th U.S. Circuit Court of Appeals, evidence of previously unknown poor performance is sufficient basis for an employee’s, even if that evidence is discovered during that employee’s Family and Medical Leave Act (FMLA) leave.Mercer v. The Arc of Prince Georges County, Inc., 4th Cir., No. 13-1300, unpubl., July 11, 2013.

DOL Updates Guidance on FMLA and Same-Sex Marriage

Of course, this kind of stuff happens while I'm on vacation and away from my computer. Last week, the Wall Street Journal created a bit of an uproar when it reported that the Department of Labor had just issued "regulatory guidance to affirm that same-sex married couples can take a leave from their jobs to care for an ill spouse." This comes as a result of the Supreme Court's Windsor decision, which I previously highlighted here.

FMLA Policy Changes Employers Should Make in Light of Windsor and the DOL’s New Guidance

On June 26, 2013, the Supreme Court of the United States struck down the Defense of Marriage Act’s (DOMA) provision defining marriage as between one man and one woman. Following the United States v. Windsor decision, President Obama directed all federal agencies to “swiftly” review all federal statutes impacted by the decision and “smoothly” implement changes to the thousands of federal laws impacted.

Let's Pretend Prince William Worked in the United States. What are His Paternity Leave Rights under the FMLA?

Fess up and raise your hand. How many of you were on the edge of your edge of your seat awaiting news of William and Kate's new arrival? I can picture you now, feverishly refreshing your Facebook and Twitter pages to catch a glimpse of the latest heir to the British throne.

Failing to Recognize an Employee's Need for FMLA Leave Can be A Costly, Painful Mistake

Employers, can we have a heart to heart? I need to get something off my chest. You see, I've witnessed a disturbing trend lately in the court cases I'm reading and in your FMLA practices: too many of you are not recognizing when an employee's leave request may be covered by the FMLA.

How Does the Fall of DOMA Impact the FMLA?

Unless you've been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Supreme Court Decision on DOMA Clears Way for FMLA Application to Same-Sex Spouses

In a landmark decision today, United States v. Windsor, the Supreme Court decided by a 5-4 decision that § 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional as a deprivation of the liberty of the person protected by the due process and equal protection clauses of the Fifth Amendment.

Fisher & Phillips Introduces New FMLA Leave App

Fisher & Phillips LLP announced today that it has developed a Smartphone and Tablet app that allows employers to calculate certain FMLA leaves of absence. The Beta FMLA Leave Calculator app will allow human resource professionals and other managers to calculate basic leave requests and determine how much FMLA leave an employee has available. This Beta version of the iPhone and Android app will be introduced during the SHRM Annual Conference and Exposition in Chicago June 16-19.

Yahoo's Sweetened Parental Leave Policy Raises Practical FMLA Certification Issues for Moms and Dads in the Workplace

It seems that what Yahoo CEO Marissa Mayer taketh, she giveth back. Or something like that.

Facebook Foils FMLA Faker

The legitimate and beneficial purposes of the Family and Medical Leave Act (FMLA) are undeniable. The law provides employees who have a serious health condition, are caring for a family member with a serious health condition, or are undergoing certain major life events such as the birth or adoption of a child, a safety net in the form of job-protected leave.

Department of Labor to Increase Frequency of FMLA On-Site Investigations

For employers who have been involved in an FMLA investigation conducted by the U.S. Department of Labor, the process can be a bit of a head-scratcher because no two investigations look the same.

DOL Publishes PowerPoint Presentation to Help Train Employees about FMLA

This week, I had the privilege of presenting on the "Nuts and Bolts" of the FMLA with Department of Labor Branch Chief for FMLA, Diane Dawson. Our presentation was part of an FMLA/ADAAA compliance conference hosted by the Disability Management Employers' Coalition (DMEC). [My unsolicited opinion: DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers. Any employer should consider joining if they want to improve their integration of disability/absence management.]

Are Additional FMLA Military Family Leave Amendments in the Works?

Is Congress poised to amend the Family and Medical Leave Act again? Late last month, legislation was introduced in the U.S. House of Representatives that would allow employees who work part-time or for small employers up to two weeks of leave in connection with a family member’s military deployment, thereby expanding the qualifying exigency provisions of the FMLA.

Court Rules That Third Party Administrators Can Be Held Liable for FMLA-Related Violations

Employers often outsource to third party administrators the task of managing their FMLA processes. Under this model, the TPA handles FMLA requests, paperwork and approvals instead of the employer's human resources or benefits department. TPAs often utilize case managers to help make leave determinations, and they generally oversee the FMLA administration.

Changes to FMLA Poster and Forms Go Into Effect

The DOL updated its mandatory workplace poster and optional employer forms to reflect some of the changes.

Facebook postings showing misuse of FMLA leave can form sufficient legal basis for termination.

Based on the number of “Facebook” decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute “protected activity” under the National Labor Relations Act, the postings can be legally protected. However, the FLSA is not the only federal law that can be implicated in Facebook-related firings. A federal district court in Michigan recently held that a hospital that fired an employee while she was on medical leave did not violate the Family and Medical Leave Act (FMLA), because the employee had posted - on her Facebook page - photos and text about vacation activities that were inconsistent with her medical restrictions, and then lied about those activities. Lineberry v. Richards, E.D.Mich., No. 2:11-13752, February 5, 2011.

FMLA's Twentieth Birthday

On February 5, the Family and Medical Leave Act (FMLA) turned 20 years old. Pomp and circumstance aside, the FMLA has certainly been a significant development in employment law over the past two decades. Although the U.S. Department of Labor reports that recent survey results indicate that “85% of employers report that complying with the FMLA is very easy, somewhat easy, or had no noticeable effect,” and that “misuse of the FMLA is rare,” administering the FMLA’s regulatory framework at the employee level can consume substantial amounts of an employer’s time and resources.

How Can Congress Improve the FMLA? Let's Count the Ways...

Over the past month, as we recognized the 20th Anniversary of the Family and Medical Leave Act, advocates for employees and employers have been clamoring for changes to the Act.

Expanded FMLA Rules Take Effect March 8, 2013: Get Your New Poster and Know the Rules

On February 6, 2013, the U.S. Department of Labor issued its final rule, implementing two important areas of expansion in the Family Medical Leave Act (“FMLA” or “the Act”). The final rule was entered in conjunction with the 20th anniversary of the signing of the Act. Because the effective date for the final rule is March 8, 2013, it will be imperative that all entities covered by the FMLA are aware of the changes and timely adjust their policies for compliance.

Legal Alert: New FMLA Poster Required by March 8, 2013

As more fully explained in our previous Legal Alert, DOL Issues Final Rule Implementing Statutory Amendments to the FMLA, http://www.fordharrison.com/9011, the U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations that take effect on March 8, 2013. Most of the new regulations relate to the FMLA's military leave provisions and the Airline Flight Crew Technical Corrections Act and make other minor changes and clarifications. The regulations also require covered employers to post a new, updated poster by March 8, 2013.

Employers Must Begin Using Updated FMLA Forms and Poster Starting March 8, 2013

Earlier this month, the Department of Labor issued final new rules regarding the amendments to military family leave, flight crew eligibility and a handful of other relatively minor issues. At the time, I covered those changes at some length here.

ABA's Summary of 2012 FMLA Cases a Valuable Resource for Employers, Attorneys

As always, 2012 was an active year for cases involving the Family and Medical leave Act. Remember the manager who gave his employee the book "No More Hysterectomies" when she asked for leave because she had to undergo a hysterectomy? We covered that one here. Or how about the employee who sought leave to care for her mom...on a vacation in Las Vegas? We covered that one, too.

You Know It When You See It: Company "On Notice" Of Employee's Need For FMLA Leave

The Family and Medical Leave Act (FMLA) entitles an employee with a serious health condition to 12 workweeks of job-protected leave during any 12-month period. The employee may sue if the employer interferes with the employee’s leave or reinstatement.

DOL Issues Final Rule Implementing Statutory Amendments to the FMLA

Executive Summary: The Department of Labor (DOL) published a Final Rule implementing the changes to the Family and Medical Leave Act (FMLA) made by the 2010 National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The AFCTCA amended the FMLA to incorporate a special eligibility provision for airline flight crewmembers and flight attendants.

The FMLA Turns 20 Today; The DOL Celebrates with Curious Survey Results About the Use of FMLA

Happy 20th Birthday, FMLA! On February 5, 1993, President Bill Clinton signed the Family and Medical Leave Act, making it the very first piece of legislation he signed into law as President.

Why Must Employers Train Their Managers About the FMLA? Here are 1.2 Million Reasons Why

I came across an interesting FMLA case this past week, and the facts are simple enough that it kept my attention. [In the age of Twitter and Facebook, anything beyond a 30-second sound byte and you might as well give me a blanket for a long-winter's nap. Right?] However, the lesson from the case should be enough to grab the immediate attention of any in-house counsel or HR professional.

How a Natural Disaster Impacts Leave Taken under the Family and Medical Leave Act

Jeff Nowak authored the article "How a Natural Disaster Impacts Leave Taken under the Family and Medical Leave Act" that was featured in the January 2013 issue of the American Bar Association Section of Labor and Employment Law FLASH newsletter. The article focuses on whether an employee has a right to take FMLA leave, as well as whether an employee can be charged for FMLA leave during the days an employer suspends its operations, as a result of a natural disaster.

Can Brent Musburger Take a Leave of Absence from ESPN for Work-Induced Stress?

Feel free to call me out for shamelessly piling on veteran broadcaster Brent Musburger. But by now, you know that issues arising under the Family and Medical Leave Act are part of the American fabric as much as baseball and apple pie, right? Well, at least on this blog it is.

A Couple Quick Tips to Fight FMLA Abuse Around the Holidays

Have your employees' absences from work been a bit more frequent lately? And are you tired of the lame excuses they're providing? After all, there are only so many times your employee's dog can knock over the Christmas tree....on top of your employee, right?

Best Practices for Employers When Administering FMLA Leave: A Recap of our Webinar

Thanks to those who attended my webinar last week with Matt Morris and Tamika Lynch on "FMLA Made Easy: Effectively Managing Difficult FMLA Issues." If you missed the program, you can access the webinar and materials here. As the survey feedback indicated, this webinar was a great opportunity to discuss common issues that arise in the administration of FMLA leave and how employers can best address them.

Facebook Festival Frockling = FMLA Fraud Firing?

You be the judge. Read the facts and then issue your ruling in this real-life case below.

Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims

Employers and fellow FMLA nerds, consider this an early holiday present: courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.

Hurricane Sandy and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?

Our thoughts and prayers are with those on the east coast who are attempting to return to some sense of normalcy in the wake of the devastation left behind by Hurricane Sandy.

Dads Need Lovin' Too! Father Can Proceed with FMLA Retaliation Claim in "Macho Culture" Lawsuit

Dads need lovin' too. So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer's "macho man" culture was a culprit in his ouster.

EMPLOYMENT LAW MADE UN-SCARY: FMLA

Everything you really need to know about the FMLA in one handy post

Overtime Included in Back-Pay Award Under FMLA

While we generally look at overtime as a “wage and hour” issue, I am once again reminded of how overtime is connected to other employment statutes.

Employee's FMLA Leave Requires an Employer to Adjust Performance Standards

When an employee takes FMLA leave, is an employer obligated to adjust its performance standards so as to avoid penalizing the employee? According to a recent federal court decision, the answer is Yes. And failing to do so sets the employer up for an FMLA interference claim.

The FMLA in Plain English?

The DOL has published a new guide with flowcharts, maps, etc. designed to make the FMLA understandable. Your employees are reading it - are you?

Employer's 'Honest Suspicion' of FMLA Abuse Enough to Dismiss FMLA Claims

Carrier Corp. had enough of its employees abusing FMLA leave, so it played the ultimate trump card -- the Company hired a private investigator to conduct surveillance on 35 employees who were suspected FMLA abusers. One of the 35 was Daryl Scruggs, who served as a brazier (one who torches parts into fan coils) for the Company.

DOL publishes its "plain language" explanation and guidebook for the FMLA.

The Family and Medical Leave Act (FMLA) entitles eligible employees to twelve weeks of unpaid leave each year for certain medical issues for themselves or immediate family members. Employers are prohibited from discriminating or retaliating against an employee who exercises FMLA rights.

DOL to Host a Complimentary Webinar Tomorrow to Discuss Basics of FMLA

On Wednesday, June 27 (tomorrow!), the Department of Labor will host a complimentary webinar to assist employers and employees in better understanding the Family and Medical Leave Act.

DOL to Host Webinar on FMLA

The Wage and Hour Division of the Department of Labor (DOL) has announced that it will host a free webinar on June 27, 2012 at 2:00 pm EST to help workers and employers understand the Family and Medical Leave Act (FMLA). According to the DOL, participants will have the opportunity to submit questions that will be answered by an FMLA expert from the department. Those who wish to participate can register on the agency's web site at: http://www.dol.gov/whd/fmla/ (click on the FMLA Webinar Page).

DOL Extends Comment Period for Proposed FMLA Regulations to April 30, 2012

On February 15, the Department of Labor published proposed regulations to the Family and Medical Leave Act in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.

FMLA FAQ: Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave?

We have an employee who works four days per week. He regularly calls off work one day every other week due to his chronic bad back. Can we require that he "make up" his day off later in the workweek?

U.S. Supreme Court Rules That State Employees Cannot Sue under "Self-Care" Provisions of the FMLA

That pesky State of Maryland! (Not that I hold grudges all these years after your Maryland Terapins beat my Indiana Hoosiers for the 2002 NCAA basketball championship!)

Supreme Court Rules "Self-Care" Provision of FMLA Does Not Allow State Employees to Sue States

On March 20, 2012, the Supreme Court held that Congress exceeded its authority in subjecting the States to private lawsuits under the self-care provision of the Family and Medical Leave Act (FMLA).

Summary of 2011 FMLA Cases: Valuable Resource to Employers

Each year, the American Bar Association's Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year. 2011 proved to be an active year for cases involving the Family and Medical leave Act, and this year's report captures nearly all of them. It is a great reference for me throughout the year, and I highly recommend it to HR professionals and employment attorneys.

Giants Beat Patriots in the Super Bowl! Can I take FMLA Leave Today?

Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere. Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI. For these employers, however, many of their employees won't be at work Monday morning. The reason? In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late. Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million.

DOL Proposes FMLA Regulatory Changes Regarding Military Family Leave, Flight Crew Eligibility and How Employers Calculate FMLA Leave

On January 30, 2012, the U.S. Department of Labor announced proposed changes to Family and Medical Leave Act regulations (pdf) in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave. Rules for the first two have been expected for some time, but the proposed rule on calculating increments of FMLA leave is a bit unexpected and essentially seeks to revert back to pre-2009 regulations on this issue.

Reports: FMLA Regulatory Changes To Be Announced Later Today regarding Military Family Leave?

Various news outlets and web sites, including the Washington Post, Fox News and MilitaryFamily.com, have reported that the Department of Labor will propose various changes today to Family and Medical Leave Act regulations regarding military family leave. Fox reports that Secretary Hilda Solis will make the announcement with First lady Michelle Obama.

DOL Proposes New FMLA Rules

Everything you could ever want to know about the DOL's new proposed FMLA rules.

The Best of FMLA from 2011 and What's In Store for Employers in 2012

In 2011, our most popular blog entries involved two general topics: 1) employers' best practices for FMLA administration; and 2) leave as a reasonable accommodation under the ADA when FMLA leave ends. We share these posts again below, since we believe the guidance is valuable as we enter a new year.

HR Director's Alleged Comments Prove Costly

A federal appellate court recently held that remarks allegedly made by a law firm's human resources director could be "direct evidence" of pregnancy discrimination and a violation of the Family and Medical Leave Act (FMLA). According to the Seventh Circuit Court of Appeals, such evidence falls outside of the "hearsay" objection that might otherwise keep it from being presented to a jury. Makowski v. SmithAmundsen LLC, No. 10-3330, Seventh Circuit Court of Appeals (November 9, 2011).

Employees Take Note: Showing Pictures of Your Boyfriend's Privates Will Doom Your FMLA Lawsuit (or Any Other Lawsuit)

Cynthia Adams was a registered hospice nurse for Fayette Home Care and Hospice. According to one of her hospice patients, Adams apparently showed him and his wife three pictures of her boyfriend's genitals, the photos of which were stored on her cell phone. Not surprisingly, the patient told another nurse from Fayette about the incident and asked that Adams not come back.

Manager's Loose Lips Sinks Employer's Chances of Dismissing FMLA Claim

When making difficult decisions about eliminating jobs, senior management surely may disagree as to "who" is cut and how it's done. However, after the decision is made, it is critical that management collectively support the decision and refrain from public dissension. When that dissension is shared publicly or with the affected employee, it can spell disaster.

Calculating FMLA Leave for Holidays, Breaks and Plant Shut Downs

'Tis the season already, as I am starting to receive telephone calls from employers with questions about how they calculate an employee's FMLA leave during a holiday week or when the employer is closed for a period of time (e.g., winter break for schools, plant shut down). As we prepare for the holidays, here are a few basic rules to have handy next to your payroll sheet:

Ruh Roh Raggy! A Leave of Absence to Care for Your Pet?

I love my Golden Retriever, Abby. I really do. But this development below is a bit too much, especially for this management-side attorney.

Life After Wal-Mart v. Dukes: Is the FMLA the New Breeding Ground for Class Actions?

For several weeks now, attorneys and legal academics across the country have dissected the U.S. Supreme Court's Wal-Mart v. Dukes (pdf) decision, which shut the door to a 1.5 million class of current and former female Wal-Mart employees who are claiming that they were denied pay increases and promotions because of their gender. In striking down class certification, the Supremes held that there was no commonality among the member of the class, that is, no "glue" that tied all of their discrimination claims together.

Parental Bereavement Act Would Amend FMLA to Provide Leave Upon Death of a Child

arlier this month, Sen. Jon Tester (D-Mont.) introduced the Parental Bereavement Act (S. 1358), which would expand the Family and Medical Leave Act to provide job-protected leave due to the death of an employee's son or daughter. In a press release, Sen. Tester said he introduced the bill because the "last thing [parents] should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss." The Act would allow leave "because of the death of a son or daughter," and it assumes leave would be taken in one block. Like bonding leave, bereavement leave could be taken intermittently only if the employer agrees. Like the FMLA itself, the bill would apply only to employers of 50 or more employees.

Will Employers Soon Use GPS to Catch FMLA Abuse?

Earlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement's placement of a GPS devise on a suspect's vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment. This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act.

U.S. Supreme Court to Decide Whether States Are Immune from Certain FMLA Claims

Print Comments Share LinkOn June 27, 2011, the United States Supreme Court agreed to review an FMLA case in which the Court will decide whether a State can be sued under the Family and Medical Leave Act where the employee is seeking leave due to his or her own serious health condition. In lawyer-speak, the question specifically involves "whether Congress constitutionally abrogated states’ 11th Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act." Although the issue may at first blush appear to be rather dry and inconsequential to the FMLA practitioner, the decision clearly will impact whether a State can be sued under the FMLA where the issue involves one of "self-care" under the Act.

Baseball's First Player Takes Paternity Leave

Here's a shout out to all the dads out there who have a leg up on major league baseball players in at least one area -- paternity leave.

Cat's Paw Already Impacting FMLA Claims

Last month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue. Known as the “cat’s paw” theory, it already is having an impact on claims brought under the Family and Medical Leave Act.

Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

In this opening weekend of major league baseball, hope springs eternal for every baseball fan. In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year.

An Employer's FMLA Nightmare? Hooters Offers Fake "Doctor's Notes" to Skip Work During NCAA Tourney

Over the upcoming weeks, when Carl the Custodian is missing from your workplace, you may want to give your local Hooters Restaurant a call. He just might be there watching the NCAA tournament.

Summary of 2010 FMLA Cases Provides Valuable Resource to Employers and Employment Attorneys

Every February, the American Bar Association's Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.

Mishandling FMLA Leave for Alcohol Treatment Causes Employer to Fall Off the Wagon

An employee enrolled in an addiction treatment program need not be under a doctor's care or actually staying at a rehab institution to qualify for FMLA leave, according to a federal court in Texas. Picarazzi v. John Crane, Inc. (pdf)

Podcast No. 19: An Employer's FMLA "To Do" List for 2011

In this month's podcast, we propose a "to do" list of items employers should consider to ensure their FMLA policies and practices are effective in the New Year.

Suffering from Super Bowl-Induced FMLA Leave?

This morning, the sound of the morning alarm was harsh reality for scores of employees throughout Wisconsin. After celebrating a Packers Super Bowl victory late into the night (a bitter pill for this Bears fan to swallow!), they have no interest in dragging themselves out of bed and heading into work. For employers, you need not be located in Wisconsin to suffer the effects of the Super Bowl. Case in point -- I was talking with an HR professional (located outside of WI.) last week who was not looking forward to the day after Super Bowl Sunday, when she spends much of her day processing leave of absence requests -- nearly all of which come from employees who called off right before the Monday morning shift started.

Lessons From The Jewel-Osco / EEOC Settlement.

On January 5, the EEOC announced a $3.2 million settlement in a lawsuit against Jewel-Osco parent company Supervalu Inc., alleging that Jewel-Osco fired disabled employees at the end of medical leaves rather than returning them to work with reasonable accommodations. (Details are available in the Chicago Sun Times, and the EEOC has issued its own press release.) The settlement does not constitute an admission of liability by the company, and as reported by the Sun Times Supervalu denied any wrongdoing.

Policies, Practices and More: An FMLA "To Do" List for 2011

FMLA developments in 2010 came fast and furious: the DOL's interpretation clarifying the definition of in loco parentis, GINA's impact on the FMLA, an impending DOL survey on how families use medical leave, and a number of new court cases giving guidance (and in some cases, muddying the waters) on important issues such as FMLA eligiblity and notice, abuse of FMLA leave, medical certification, caring for a family member and FMLA retaliation.

The DOL's Holiday Gift for the Plaintiff's Bar.

Shortly before the Thanksgiving holiday, the Obama administration's "Middle Class Task Force" announced a new program in which the U.S. Department of Labor will partner with the American Bar Association to refer complaints under the FMLA and federal wage and hour laws to private plaintiffs' attorneys.

Senator Dodd's Legacy: The Family and Medical Leave Act.

In the upcoming weeks, the halls of Congress will welcome a number of new faces and bid farewell to many other personalities. One of those personalities riding into the sunset is the longtime Senator Christopher Dodd of Connecticut. Putting aside for now whether you love him or hate him, Senator Dodd leaves at least one significant legacy behind -- passage of the Family and Medical Leave Act. As the author of the FMLA, which was passed in 1993, and sponsor of several bills pending in Congress that would expand the FMLA, Senator Dodd clearly has been a strong voice for employees in the workplace.

Webinar on Identifying, Managing and Preventing FMLA Abuse.

The 90-minute Webinar and presentation materials (both of which are complimentary) can be accessed at: http://www.franczek.com/fmlawebinar.

Where, and Where Not To Get FMLA Information

Occasionally I spot a piece of FMLA "advice" on the Internet that just makes me chuckle - and that makes me confident that the FMLA will remain a terrific source of business for employment lawyers for a long time to come. Much of it isn't outright wrong, but ends up being so superficial that it completely misses the mark. Take a recent post on ehow.com for example.

Our Favorite FMLA Tweets (and What To Do About Them)

Have you ever searched Twitter for the term "FMLA"? I have. Some of what you find is insightful and informative information for employers, but you will also run across some interesting commentary from employees. Here are a few of my favorite employee FMLA tweets from the past few months:

FMLA Poster In Other Languages?

In a recent post we reviewed the rules relating to posting and publishing the DOL's "General Notice" poster. Among other things, the FMLA rules require employers who have a significant number of employees who do not read English to publish the notice in a language in which the employees are literate. The DOL has a version of the poster available in Spanish, but (as I confirmed with a call to the Department today) not other languages. To make matters more difficult, so far I have not been able to find a vendor who can provide the poster in any other language.

FMLA FAQ - What's the Deal With the Poster?

I know we have to post the DOL's "general notice" poster somewhere, but what exactly are we required to do with it?

FMLA Inclusion Act Introduced in Congress...again.

Is the fifth time the charm? On July 30, 2010, U.S. Senator Richard Durbin introduced the Family and Medical Leave Inclusion Act, which would broaden the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who has a serious health condition. S.B. 3680 (pdf) is nearly identical to H.B. 2132, which has been pending in the U.S. House of Representatives, and that (based on our count) has been introduced in the House on four occasions. What's notable about S.B. 3680, of course, is that it now is on track to be considered by the Senate for the first time.

Employee's Headache No Excuse For Insubordination.

Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason.

He Shoots...and Misses! Does the World Cup Invite FMLA Abuse?

A couple weeks ago, as I was preparing a witness for his deposition (in a Title VII and FMLA case), it dawned on both of us that his deposition would take place mere hours after the deciding Game 6 of the Stanley Cup Playoffs.

Sec. Solis Says New Interpretation Expands FMLA

Well, we stand corrected. While we said in our summary of the DOL's new Administrator Interpretation (.pdf) on the issue of FMLA leave for those standing in loco parentis for a child that the new interpretation "arguably does not change existing law," Secretary of Labor Hilda Solis evidently thinks that it does. Writing in the Huffington Post, Secretary Solis had this to say about the new interpretation:

Inconsistent performance appraisal scores may support FMLA interference claim.

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals has held that an employee’s appraisal score, given during a Reduction in Force (RIF) review, that was significantly lower than an annual performance review score given only 20 days earlier might support a jury’s finding that the true reason for the employee’s layoff was her requested FMLA leave.

New FMLA Amendments Create "Exigencies" for Employers—Part Two.

This two-part article analyzes the new military family leave provisions of the Family and Medical Leave Act (“FMLA”), as amended in 2008 and again in 2009. The first installment explored the “Active Duty Family Leave” for employees who experience a “qualifying exigency” arising out of the fact that a family member has been called to active duty. This second installment analyzes the leave available for an employee to care for a military family member who is injured in the line of duty and, specifically, how this “Injured Service Member Leave” compares with the traditional FMLA leave to care for a family member with a serious health condition.

New FMLA Amendments Create "Exigencies" for Employers.

The Louisiana Army National Guard’s 3,000-member 256th Infantry Brigade Combat Team is preparing for a 12-month deployment to Iraq. On January 6, 2010, the Louisiana National Guard held a deployment ceremony in White Castle, Louisiana, for its 256th Brigade Special Troops Battalion. The ceremony was reportedly attended by hundreds of family members and friends—and those family members were likely eligible for leave under the Family and Medical Leave Act’s new military leave provisions for their attendance at the deployment ceremony. The Battalion will train in Mississippi for six to eight weeks, after which they will have four days of leave to return home before flying to Iraq. Their family members may also be entitled to FMLA leave for that four-day leave period. In light of the increased troop deployments to Afghanistan and Iraq, it is critical for employers to understand the new military leave provisions of the FMLA.

FMLA's administrative complexities create challenges for employers.

The U.S. District Court for the Middle District of Pennsylvania recently re-visited a case on remand from the Third Circuit, and allowed an insurance company employee’s claims of FMLA interference and retaliation to go forward. Erdman v. Nationwide Insurance Co., M.D. Pa., No. 1:05-cv-0944, 1/15/10. The case is noteworthy on more than one point: first, the 3d Circuit remanded the case on a finding that the employee’s hours worked at home might be counted toward the 1250 minimum hours needed to be eligible for FMLA leave; second, that evidence of ongoing “antagonism” between the company and the employee might form the basis of FMLA retaliation; and finally, that a request for FMLA leave may be viewed as a “protected activity” under Pennsylvania’s Human Relations Act.

New Law Expands Military Leave Entitlements Under FMLA.

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 Fiscal Year, which includes provisions that expand the military leave entitlements of the federal Fam-ily and Medical Leave Act (FMLA). The NDAA amends both the "qualifying exigency" and military caregiver leaves that became effective in January 2008.

Congress Looking to Overhaul FMLA: Proposed Legislation Could Present New Compliance Challenges.

Although sometimes lost in the buzz over health care reform and union card-check legislation, over the past several months, Congress has also been considering a slew of aggressive proposals designed to expand various aspects of the Family and Medical Leave Act (FMLA). While these changes could affect employers in all industries, retailers should be especially concerned due to the possible lowering of requirements for coverage of part-time employees.

Congress Considers Paid FMLA Leave – And New Taxes To Pay For It.

On March 25, 2009, four House Democrats introduced a bill that would create a new federal insurance fund to provide employees with up to 12 weeks of paid family and medical leave each year.

Education Update: A Refresher Course On FMLA Leaves.

A teacher approaches you at the beginning of the school year and tells you that she is pregnant and will be needing time off in early April for the birth of her baby. She plans to return for the last two weeks of the term. Another employee, your football coach, approaches you and states that his father, an Army Sergeant Major, suffered a serious injury while in Iraq and he needs one day off each week for the next eight weeks to assist in his father's planned medical treatment. What are the school's obligations in these situations?

Employer's Daily Call-In Policy Found Not To Violate FMLA.

A federal appellate court recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA.

Employer Does Not Violate FMLA by Having Daily Call-In Policy.

The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA.

Seventh Circuit Finds Surveillance Proper In Fraud Investigation.

A federal appellate court recently dismissed a lawsuit brought by an employee who was working at her husband's lawn-mowing business while on intermittent medical leave from her employer. According to the Seventh Circuit Court of Appeals, the employer did not violate the Family and Medical Leave Act (FMLA) by terminating the employee because it had an "honest suspicion" that she was misusing her FMLA leave.

Proposed Amendments to the FMLA Regulations will affect Physicians (pdf).

The U.S. Department of Labor has proposed amendments to the Family and Medical Leave Act (FMLA) regulations, some of which will impact physicians. Public comment on the proposed amendments ended on April 11, 2008. The Department has not announced when the regulations will be finalized and published, although it is expected to occur before the end of the Bush Presidential term of office.

Seventh Circuit Awards FMLA Rights to Ineligible Employee.

In today's workplace, employees are increasingly looking for opportunities to telecommute. Whether based on a desire to balance family and professional responsibilities, or more recently, to save money at the gas pumps, a rapidly growing number of employees would prefer to work from home. According to a recent Dice Holding study, nearly 40% of information technology workers would accept up to a 10% reduction in salary for the opportunity to work from home. This trend shows no signs of letting up any time soon.

Employer's Inclusion of FMLA Benefits In Handbook May Bind Company, Even Without the Requisite 50 Employees (7th Cir.).

Under the Family and Medical Leave Act (FMLA) a qualified employee is one who has worked for at least 1250 hours during the previous 12 months. In addition, an employer is subject to the FMLA if it has at least 50 employees within a 75 mile radius. Recently, the 7th U.S. Circuit Court of Appeals held that an employee can proceed with state-law claims for breach of contract or promissory estoppel based on handbook language granting FMLA-type leave, even though the employer had less than 50 employees.

FMLA Blues.

Most dealers know that in order to be eligible to request the Family and Medical Leave Act (FMLA) employees must meet three initial conditions: They must work for an employer who employs at least 50 employees within a 75-mile radius; They must have been employed by the employer for at least 12 months; and They must have worked at least 1,250 hours in the twelve months prior to requesting the leave. What many dealer do not know is that the 12 months of employment in #2 need not be consecutive. A dealer in Maine recently learned this the hard way.

Healthcare Update: FMLA May Require Treatment of Ailing Job Descriptions.

Does a charge nurse’s seizure disorder compromise patient safety? Can a nurse with a two-pound lifting restriction perform the essential duties of her job? These questions and others like them often arise in the healthcare industry and the wrong answer could trigger liability not only under the Americans with Disabilities Act (ADA), but also under the Family and Medical Leave Act (FMLA).
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