Thursday, February 23, 2017

Focus on the FMLA: Part III

Today we come to the third and final post in our series about the Family and Medical Leave Act (FMLA). We’ve tried to address FMLA issues that, in our experience, pose particular challenges for employers. Over the past two weeks, we’ve taken a close look at intermittent leave, recognizing a FMLA request, and maintaining appropriate records. Now we’re going to address the thorny issue of coordinating FMLA leave with other types of time off.
Overview. As an initial matter, employers need to recognize that there are a number of federal, state, and local laws governing leave. In addition to the FMLA, the Americans with Disabilities Act (ADA) and Title VII can impact employees’ leave rights. State and local laws, including workers compensation laws, may impose requirements related to an employee’s absence from work due to an injury, disability, or illness. When multiple laws apply, federal regulations direct an employer to provide leave under whichever statutory provision provides the greater rights to the employee.
FMLA + ADA Reasonable Accommodation. It can be confusing to coordinate FMLA leave with the ADA’s requirement to provide reasonable accommodation to employees with a disability. The two laws are triggered by different circumstances and qualifications, even though both may apply to a particular circumstance. A “serious health condition” that qualifies for protected leave under the FMLA may or may not be a “disability” requiring reasonable accommodation under the ADA. Leave related to an employee’s own medical condition may be required by the ADA, the FMLA, and state or local laws, but leave requested in connection with the serious medical condition of an employee’s family member is only required by the FMLA and some corresponding state laws. The FMLA requires 12 workweeks of leave in a 12-month period, while an employee with a disability may be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation under the ADA. The best approach is to independently evaluate the requirements of each applicable law, establish what is required to comply, and then assess how the requirements overlap.
FMLA + Employer Leave Policies. In addition to navigating federal, state, and local regulations, covered employers must integrate FMLA requirements with their own leave and attendance policies, such as policies on paid time off (PTO), vacation, sick, short-term disability, and long-term disability. A sick or PTO policy is an obvious place to start, but make sure to consider whether conflicts lurk in policies such as those governing attendance, leave requests, leave scheduling, calling-in absences, and documentation of leave requests. Although an employee generally must comply with company policies when requesting FMLA leave, such policies must be in compliance with the law’s requirements. A company prohibition on using PTO during the busy season, for example, may conflict with an employee’s need to take leave under the FMLA. In such cases, the company policy may need to be modified, or be subject to exceptions, to comply with the requirements of the FMLA. An employer’s requirements for documentation of the reason for taking sick leave may not track the documentation requirements of the FMLA. Many employers have chosen to add a disclaimer to their leave policies, stating that conflicts between policies and federal, state, or local laws will be resolved in favor of compliance. 
Employers also need to understand if and when employees can be forced to use up accrued paid leave while on FMLA leave. The FMLA generally permits employers to require the use of accrued paid time off during a leave. This means that the employee receives pay pursuant to the employer’s paid leave policy during a period of otherwise unpaid FMLA leave. There is one exception, however:  employers may not require employees who are eligible for FMLA leave due to their own “serious health condition” to use accrued paid time off if the employee also qualifies for disability benefits under an employer disability plan or a state disability insurance plan.
Finally, the existence of short or long-term disability benefits does not alter a covered employer’s obligations to abide by the FMLA, and employers cannot refuse to allow FMLA leave just because STD and LTD are available. Employers must also make sure that third-party administrators processing leave requests understand and comply with the FMLA.
FMLA + Benefits. The FMLA requires employers to maintain an employee’s health insurance coverage during FMLA leave, but employers are permitted to suspend the accrual of benefits such as PTO as long as they carry out any suspension in a non-discriminatory manner and the suspension policy applies to employees on all forms of leave.

Tuesday, February 21, 2017

That is SO last week

Over the weekend, a female Uber employee published a blog post that accuses the company of systemic sex discrimination and harassment. Uber quickly reacted, hiring former Attorney General Eric Holder to perform an “urgent investigation” of the allegations. Commentators have been quick to point out that Uber isn’t the only company in Silicon Valley with a sexual harassment problem, and have noted that Uber’s gender diversity figures are abysmal even by Silicon Valley’s low standards.
  • Washington state’s highest court upheld a fine against a florist who refused to provide flowers for a same-sex wedding.
  • The EEOC sued three related Hawaiian tour companies for allowing ongoing sexual harassment of male employees by the companies’ president for more than a decade.
  • Inc. recognized Valentine’s Day by rounding up five stories of workplace sexual harassment.
  • A Michigan medical services provider agreed to pay $21,500 and furnish additional relief to resolve a disability discrimination lawsuit in which the EEOC alleged that the medical services provider fired an employee based on a perceived medical condition.
  • Consultants and tech developers are marketing “sentiment analysis” software that can be used by employers to assess employee engagement by scanning internal communications.
  • HR analytics may not be as hard as it first appears.
  • According to Bloomberg Businessweek, sensors are used in many offices to collect data on everything from temperature and energy use to employee whereabouts and behavior patterns.
  • TechCrunch identified several ways in which office technology is vulnerable to cyber attacks that can compromise employees’ personal data.
In Other News
  • Andrew Puzder withdrew his nomination for Secretary of Labor, and Alexander Acosta, a Florida law school dean and former assistant attorney general, was nominated instead.
  • Employees across the United States were fired for missing work as part of the nationwide “Day Without Immigrants” protest last week.
  • A survey revealed that 84% of small business owners plan to move forward with salary and employee classification changes as though the DOL’s new overtime rule had taken effect.
  • Forbes offered six principles to consider when implementing an office dress code.
  • Health insurance, flexible scheduling, and vacation time are among the most desirable employee benefits, according to a study covered by Harvard Business Review.

Thursday, February 16, 2017

Focus on the FMLA – Part II

Last week, we wrote about some of the Family and Medical Leave Act (FMLA) requirements that can be particularly challenging for employers. This week, we’re going to focus on an aspect of FMLA entitlement that causes employers a lot of confusion: intermittent leave.  The FMLA provides that qualified employees of covered employers may take a few hours a day, a few days a week, or any other configuration of leave that a health care provider determines is necessary to allow the employee to manage a qualifying condition or circumstance. 
Here are some things to keep in mind about intermittent leave:
Qualifying for intermittent leave under the FMLA is essentially the same as qualifying for FMLA leave of a longer duration. The FMLA specifically allows employees to take unpaid, protected leave on an intermittent basis, or work a reduced schedule, when they are affected by their own or a family member’s serious health condition. Intermittent leave can also be used for child care for a newborn or after the placement of an adopted or fostered child. A request for intermittent leave deserves no more or less scrutiny than a request for a leave of longer duration.
Employers cannot require a doctor’s note for every instance of intermittent leave. A health provider’s initial certification of the need for intermittent leave can be required, and just as with other forms of FMLA leave, employers can request a health provider’s recertification of the need for intermittent leave every 30 days, any time circumstances change, or when the employer reasonably suspects the certification may no longer be valid.
  • Calculating leave entitlement for non-exempt employees or employees who work a varying schedule can be a particular headache. Employers should calculate the number of leave hours an employee is entitled to based on the employee’s regular workweek. Even when an employee’s workweek varies, the employer can generally calculate leave entitlement based on the number of hours the employee is scheduled in a particular week. For a truly varying workweek, when it is nearly impossible to determine with certainty how many hours the employee would have worked but for the leave, employers should average the hours the employee was scheduled to work over the 12 months prior to the beginning of the leave period and use that average to determine leave entitlement.
  • An employer can require that any available paid leave and intermittent FMLA leave be taken concurrently.  The employer can also require that intermittent leave be taken in increments determined by the employer’s paid leave policy. For example, if an employee needs to take two hours off work for a medical appointment and the employer’s leave policies require that paid leave be taken only in full-day increments, the result will be that the employee uses up both a full day of paid leave and a full day of FMLA leave. In such circumstances, the employee must actually be given the entire day of leave.  An employee always has the option to take only unpaid FMLA leave for the medical appointment, and an employer can choose to make an exception to its policy and allow the employee to take paid leave in a smaller increment.
  • Intermittent leave can be managed to minimize the impact on operations. Employees are required to consult with their employers to schedule foreseeable medical treatments to minimize the impact of their absences. An employer can temporarily transfer an employee on intermittent leave to minimize the impact of absences on operations, but only if it does not adversely affect the individual. Be cautious here—it is all too easy for a transfer to convey the appearance of punishing an employee for taking intermittent leave or trying to discourage the use of intermittent leave.
We had hoped to cover coordination of FMLA leave with other types of leave in this post, but we’ve decided to leave that for next week. Watch this space for Focus on the FMLA – Part III.
Posted by Laura Bartlow

Monday, February 13, 2017

That is SO last week

Last week, in her first public comments since her appointment, new EEOC Chair Victoria Lipnic indicated that the agency will focus on age discrimination, equal pay, and job growth.  Lipnic also indicated that the agency will re-evaluate the costs and benefits of the modified EEO-1 report, which was released last September and takes effect for the March 2018 deadline for reporting 2017 pay data.  The new EEO-1 form was intended to collect summary pay data as well as demographic information from reporting employers, and received a negative reaction from some commentators and employer groups.
  • A federal judge approved a settlement between a health center and the EEOC to resolve allegations that a nursing assistant was fired because he disclosed that he was HIV-positive.
  • New Jersey’s attorney general sued a Hilton hotel, alleging the hotel paid a female employee less than her male counterparts and then fired the female employee for complaining about the pay disparity.
  • The NFL issued a warning that a transgender bathroom bill under consideration in Texas may affect future Super Bowls in the state.
  • Twitter’s head of diversity is leaving and its HR director has already left.
  • Wired told us that coding is the next blue-collar job.
  • Facebook announced that it is expanding its paid leave policies to allow employees up to 20 days of paid bereavement leave and up to six weeks of paid leave to care for a sick relative.
  • Employers considering using wearables in the workplace need to consider the privacy implications.
  • The startup Jolt is pioneering an employment experiment involving no perks, lower pay, and a two-year employment period, designed to appeal to the habits and desires of tech workers.
  • HR recruiting and hiring technology containing personally identifiable information of employees and applicants is becoming a major target for cyber thieves.
In Other News
  • The Atlantic asked whether the president’s pick for Labor Secretary will ever be confirmed.
  • A U.S. federal judge upheld the legality of the Department of Labor’s fiduciary rule for retirement advisors, becoming the second court to uphold the rule.
  • SHRM rounded up the impact of the current hiring freeze in the federal workforce.
  • The New York Times suggested that allowing employees to control their schedules will help to close the workplace gender gap.
  • A former New York Post sports columnist sued the newspaper claiming he was wrongfully fired for posting a personal tweet that was critical of the new president.
  • SHRM covered Philadelphia’s new ordinance banning private-sector employers from asking job applicants about their salary history, the first of its kind passed by a U.S. city.

Thursday, February 9, 2017

Focus on the FMLA – Part I

This post is the first of two about the Family and Medical Leave Act (FMLA)—and more specifically, about aspects of the FMLA that may be less familiar and seem to be sticking points for employers’ compliance efforts.
In general, the FMLA provides that private employers with more than 50 employees must provide 12 weeks of unpaid, job-protected leave and continued health benefits to certain employees who are affected by a serious health condition, the birth or adoption of a child, or the serious health condition of a spouse, child, or parent. In addition to the granting of leave and reinstatement after a leave, the FMLA requires that covered employers provide employees with information about their FMLA rights, and dictates the nature and handling of medical information obtained from employees. The Department of Labor has issued a fact sheet that provides a good basic outline of FMLA coverage and mandates.
FMLA compliance can be complicated and challenging. Here are some of the issues and requirements that seem to cause employers particular headaches:
  • What constitutes a “serious health condition”? Remember that a serious health condition can be physical or mental. Whether or not a condition qualifies for FMLA leave is not left to the subjective judgment of the employer or the employee. Generally, the law defines a serious health condition as a period of incapacity or treatment that is (1) connected with inpatient care, (2) requires an absence of more than three days from work and involves care from a health care provider, (3) is due to pregnancy or the need for prenatal care, or (4) involves a chronic, serious health condition. This is a broad definition, and employers should be thoughtful in assessing whether or not an employee’s circumstances present a covered condition.
  • What triggers FMLA rights? A request for leave or formal notification of an employee’s serious illness, injury, or pregnancy always requires that a covered employer review the employee’s eligibility for FMLA leave. In addition, however, employers have a responsibility to recognize facts and circumstances that could reasonably trigger FMLA eligibility, even if an employee does not specifically refer to FMLA leave or formally request time off. 
  • What proof of the need for leave does the employee have to provide? Employers may require that a request for FMLA leave be supported by certification from a health care provider. Health care providers who can certify the need for leave include doctors of medicine or osteopathy, dentists, psychologists, chiropractors, nurse practitioners, and others who are authorized to provide health services by state law. Employees have to be given at least 15 calendar days to obtain medical certification. Employers should be careful to limit requests for medical information and avoid requesting or obtaining unnecessary details of an employee’s (or family member’s) health history or health status. If an employer is not satisfied with the certification provided by the employee’s health care provider, the FMLA specifies a process through which the employer can obtain a second opinion.
  • What recordkeeping does the FMLA require? The Department of Labor requires that employers make and preserve detailed records relating to FMLA leaves “for no less than three years.” The dates and hours of leave, copies of employee leave notices, copies of notices of FMLA rights given to employees, and records of disputes related to FMLA leave, among other things, must be retained and made available to the DoL on request. The statute also specifically requires that records relating to medical certification and medical history of employees or employees’ family members be maintained as confidential medical records and kept separately from other personnel records.
Next week, we’ll focus on two more thorny issues: intermittent leave and the coordination of FMLA leave with other forms of time off. 
Posted by Judy Langevin

Monday, February 6, 2017

That is SO last week

The challenge of diversity in the technology sector continues to make headlines. Last week, Apple’s shareholders said they will challenge the company’s diversity initiatives at an upcoming shareholder meeting because the company is not doing enough to increase diversity in its senior ranks. Fast Company covered Google’s efforts to improve diversity and reduce unconscious bias in its workforce. Fortune explained how tech companies can improve gender diversity, given that automation and technology disproportionately threaten jobs held by women. In a related development, ninety-seven tech companies joined an amicus brief filed in the State of Washington suit that challenges the president’s executive order banning immigration from seven predominantly-Muslim countries.  The amicus brief describes the executive order as illegal, discriminatory, and harmful to “American business, innovation, and growth.”
  • The EEOC sued a rural Mississippi health services company for disability discrimination, alleging that the company fired an employee who requested leave to recover from liver transplant surgery.
  • A federal judge declared a mistrial in the EEOC’s age discrimination case against Texas Roadhouse after a jury was unable to reach unanimous agreement on a verdict.
  • The EEOC extended the public comment period on its proposed harassment enforcement guidance to March 21.
  • Rooms to Go, a furniture store and distributor, agreed to pay $55,000 and provide other relief to settle a pregnancy discrimination lawsuit.
  • Fast Company covered new AI technology designed to improve how employers find and hire job candidates.
  • A fast-growing sector of the HR tech industry is building tools that focus on teams, feedback, continuous performance management, and data-driven recruiting.
  • Forbes identified six ways HR can leverage big data.
Wage and Hour
  • An Oregon federal court ruled that fast-food restaurant chain Jack in the Box is not a joint employer based on the “economic reality” test.
  • Uber sought court approval of an agreement to settle its worker classification suit for $1 per driver, giving drivers a total of $1.7 million.
  • Former NFL cheerleaders filed a proposed class action lawsuit against the NFL, alleging the league and its teams conspired to underpay the cheerleaders and prevent them from negotiating better salaries.
In Other News
  • The administration issued an executive order ordering the DOL to “halt work” on and review the fiduciary rule that was scheduled for implementation on April 10.
  • SHRM considered how the NLRB may shift direction under the leadership of the incoming Acting Chairman Philip Miscimarra.
  • SHRM offered advice for handling employees who drink on the job.
  • The president issued an executive order requiring federal agencies to repeal two regulations for every one they issue.
  • The Atlantic examined why workers aren’t sharing in the economic success of their employers.

Friday, February 3, 2017

OWBPA Basics

We have found that the Older Workers Benefit Protection Act (OWBPA) is a source of confusion and misunderstanding for some of our clients. Even experienced HR professionals and in-house counsel have questions about what it requires. Here are some basic facts about the 1991 amendment to the federal Age Discrimination in Employment Act (ADEA).
What’s it about? The OWBPA was passed to help protect workers over 40 from giving up their rights under the ADEA without fully understanding what they’re doing. It’s focused on situations in which employers ask employees to sign a release of claims in exchange for severance pay.
Who’s covered? Generally, employers with more than 20 employees.
Who’s protected? Employees over 40 who are being terminated voluntarily or involuntarily, and who are asked to release any age discrimination claims they may have in exchange for some consideration—usually, severance pay.
What does the law require? Quite a bit - and all its requirements are intended to ensure that any waiver of ADEA rights by a departing employee is “knowing and voluntary.” To accomplish that, the OWBPA insists that any release of ADEA claims:
  • Is written in plain language that can be clearly understood;
  • Specifically refers to ADEA rights or claims;
  • Advises the employee in writing to consult an attorney before signing the agreement;
  • Provides the employee with at least 21 days to consider the offer;
  • Provides the employee with at least 7 days after signing to change his or her mind (note that state law may require a longer revocation period);
  • Does not cover rights or claims that arise after the waiver is signed; and
  • Is in exchange for consideration that’s more than what the employee is already entitled to.
That’s complicated.  What else? There’s more required when a group termination occurs. If an employer carries out a reduction in force or offers a group of employees a termination incentive program, and even one of the affected employees is over 40, there are additional notice and consideration period obligations:
  • All of the requirements listed above have to be met;
  • Each employee, regardless of age, has to be given 45 days to consider the proposed release before signing it; and
  • Each employee must be given specific information about the titles and ages of both affected and unaffected members of the work group (“decisional unit”) involved in the group termination.
A “group” termination program subject to the OWBPA’s enhanced notice requirements occurs whenever more than one employee is terminated during a six-month period as part of the same decision-making process.
What’s the penalty for failure to follow OWBPA requirements? It’s an invalid, unenforceable release. If an employer neglects or fails to do what the OWBPA requires, any release signed by a protected employee is void as to ADEA claims. Non-ADEA claims are not affected, but an employer may face a federal age discrimination claim even though the employee has been paid to release such a claim. 
Is that it? Like all anti-discrimination laws, the OWBPA and the ADEA are dense, detailed statutory provisions. What we’ve included here are the basics, but you may need to know more if you’re facing a reduction in force or even the termination of a single employee over 40. It will be worth the effort to dig into the law or get expert advice, because the price of non-compliance can be very high.