“Five New Year’s Resolutions for Employers,” written by Employment & Labor Law Department Directors Kelly Bird and Carla Dorsi, was the featured cover story in this month’s Metropolitan Corporate Counsel. The article outlines the following five employment practices for clients to focus on in 2015. Resolution #1: I will review my company’s arbitration agreements. Resolution #2: I will examine my company’s hiring practices, from job postings through background checks. Resolution #3: I will ensure my company’s paid time off policies and practices are compliant with paid sick leave laws. Resolution #4: I will rethink my company’s policies and practices concerning pregnant employees. Resolution #5: I will equip my employees with the knowledge and ability to comply with and enforce my company’s policies and our legal obligations.
Category: Family Leave
In a recent case decided by the United States Court of Appeals for the Third Circuit, Lupyan v. Corinthian Colleges Inc., an employee who did not return to work until after her 12 weeks of leave under the Family and Medical Leave Act (FMLA) had expired was able to avoid summary judgment against her because her employer was unable to come up with any hard evidence that she had actually received the FMLA notices mailed to her while on leave. The decision is a clear warning to employers that they run a real risk in FMLA litigation that notices sent by ordinary mail to an employee on leave may not carry the day.
Keeping track of all of the state and federal family and medical leave laws, paid family leave laws, and workers’ compensation and disability laws is difficult for any business owner or HR professional. Properly determining leave eligibility and ensuring that leave is not abused is even harder and generates the most mistakes and lawsuits.
Windsor Decision Brings Equal Benefits to Some Same-Sex Couples and Compliance Concerns to Employers
The U.S. Supreme Court’s landmark decision in United States v. Windsor, which struck down the Defense of Marriage Act provision limiting the federal definition of marriage to legal unions between one man and one woman, has left employers and employees alike scratching their heads regarding what the ruling means for family and medical leaves and employee benefits. Will compliance with Windsor require a bit more work for in-house counsel and human resources professionals? In the short term, yes. And given the likelihood of further changes in state marriage laws and federal agency guidance on numerous issues stemming from the Windsor ruling, continued monitoring and future adjustments are to be expected. But when the full impact of the Windsor decision shakes out, the end result should be equal treatment of same-sex couples with regard to leaves and employee benefits and fewer administrative burdens for companies in managing these benefits – changes that should be welcome to same-sex couples and employers alike.
A Family and Medical Leave Act (“FMLA”) plaintiff’s leave was proven fraudulent through her Facebook postings, resulting in summary judgment for her employer, dismissing her complaint. The Federal District Court for the Eastern District of Michigan concluded that the employer’s reason for her termination was legitimate and unrelated to her exercise of FMLA rights.
On February 6, 2013, the United States Department of Labor (DOL) published final regulations that amend the Family and Medical Leave Act’s (“FMLA”) military leave provisions and eligibility requirements for pilots and flight crews. Other changes impacting the minimum increments of time allowable for measuring FMLA leave and recordkeeping requirements are also part of the final regulations. The new regulations take effect on March 8, 2013, giving employers only a few weeks to ensure that their policies and forms are updated.
Are employers required to provide reasonable accommodations to an employee to facilitate his or her return to the same or equivalent position at the conclusion of an FMLA leave? According to a recent decision from the Third Circuit Court of Appeals, the answer is no, provided the employee is unable to perform the essential functions of his job position. The case, Macfarlan v. Ivy Hill, provides important guidance for employers who must make such determinations upon an employee’s return from FMLA-protected leave.
Without any substantive changes, new updated model Family and Medical Leave Act (FMLA) forms have been issued by the United States Department of Labor (DOL) website and are available on the DOL website (in the section for Wage and Hour Division Forms). Employers using the former model FMLA forms on the DOL website should replace their prior versions, which expired on December 31, 201, with the new versions. Employers using their own FMLA forms should include appropriate language to prevent employee disclosure of genetic information prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Such language should generally be included in the employer’s FMLA policies and other employee communications. The Equal Employment Opportunity Commission regulations suggest a “safe harbor” notice to include in such communications to effectively lessen the chance of an inappropriate disclosure of genetic information.
In a case of first impression, the Third Circuit Court of Appeals held that a supervisor may be individually liable for violating the Family and Medical Leave Act (“FMLA”). While noting that individual liability is not recognized in some Circuit Courts, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole reached a contrary conclusion.
On Monday, January 28, 2012 the United States Department of Labor (DOL) announced that it would publish a Notice of Proposed Rulemaking addressing statutory amendments to the Family and Medical Leave Act (FMLA) provisions concerning military family leave and flight crew eligibility. The proposed rules will be published in the Federal Register and interested parties may submit written comments within a defined period of time, which has not yet been specified.