Foley & Lardner Labor and Employment Law Weekly Update (Week of April 25, 2011)

Tips For Managing Intermittent Leave
Written by: Carmen N. Couden

As most employers know, in certain situations, The Family and Medical Leave Act (FMLA) allows employees to take leave on an intermittent basis if requested by the employee and if intermittent leave is deemed "medically necessary" by the employee's doctor. Unfortunately, intermittent leave has the potential to be very disruptive to an employer's operations and can be difficult for employers to manage. Below are some tips for employers to keep in mind when dealing with intermittent leave issues.

• Make sure the requested intermittent leave is medically necessary. If the employee's doctor has not certified that intermittent leave is necessary, the employer has no obligation to provide leave on an intermittent basis.
• Modify policies to require written notice of leave and that such notice be provided to Human Resources in advance of the employee's shift unless there is an emergency or other unusual circumstances.
• Require medical certification and recertification as often as permitted under the FMLA. Specifically:
  • Employees should have to provide a certification when they initially request FMLA leave.
  • New certification can then be required once every new leave year and every time the leave reason changes or the employee requests additional leave.
  • Recertification can be required when the original certification expires or every 30 days, whichever period is longer. In all cases, regardless of the duration of the original certification, recertification may be required every six months.
  • In addition, recertification may be required in less than 30 days if the frequency and duration of leave is inconsistent with the medical certification, if there is a pattern of suspicious absences, or if the circumstances cast doubt on the validity of the original certification.
• Make sure to track all periods of intermittent FMLA used so that leave may be denied when the employee's 12 weeks of leave is exhausted.
• Require substitution of paid leave for unpaid leave.
• Require employees to schedule treatment, when possible, in a way that does not unduly disrupt operations.
• Consider whether a temporary transfer of the employee to a position with equivalent pay and benefits will better accommodate the employee's need for intermittent leave.
• Consider obtaining a second or third opinion in cases when abuse of intermittent leave is suspected.

Appropriately managing intermittent FMLA leave is a complex process full of traps for the unwary employer. Accordingly, employers would do well to contact legal counsel if they have questions regarding any of the items discussed above.

Secretly Conducting Criminal Background and Credit Checks of Prospective Employees Exposes Employers to Liability
Written by: Raymond J. Carey

A recent settlement of a class action lawsuit alleging violations of the Fair Credit Reporting Act (FCRA) reinforces why employers should ensure all aspects of their hiring practices are compliant with the FCRA, as well as other applicable federal, state, and local employment laws. Hall v. Vitran Express, Inc. (N.D. Ohio) (the enhanced version this opinion is available to lexis.com subscribers). The lead plaintiff in the case claimed the prospective employer's failure to seek or receive appropriate approval from job applicants before obtaining criminal background reports and its failure to provide pre-adverse action notice to job applicants, including a copy of the applicant's criminal background report and a statement of the applicant's rights, constituted "willful, wanton and reckless" violation of the FCRA. The court certified a nation-wide class that included all applicants about whom the prospective employer obtained criminal background reports or other consumer credit reports without giving the written notice or obtaining the authorization required by the FCRA. The company settled the case for $2.6 million.

The FCRA requires that an employer provide written notification to an applicant that a consumer credit report may be obtained and used in conjunction with one's application for employment and to obtain the applicant's written authorization before requesting a consumer report.

Before relying on a consumer report to deny a job application, the employer must give the applicant a pre-adverse action disclosure that includes copies of the individual's consumer report and of A Summary Of Your Rights Under The Fair Credit Reporting Act as prescribed by the Federal Trade Commission. After the employer has denied employment to the applicant based on the report, the employer must give the applicant an adverse action notice that includes certain information. An employer that willfully fails to obtain an applicant's permission before requesting a consumer report or that fails to provide requisite pre-adverse or an adverse action notice is liable to the applicant for (1) actual damages or damages of not less than $100 and not more than $1,000, (2) court costs and reasonable attorney fees if the action is successful, and (3) punitive damages "as the court may allow."

It is apparent that plaintiff lawyers view class action litigation for violation of the FCRA as a lucrative source of fees. Several other class action lawsuits involving claims for violation of the FCRA are pending against employers around the country. In March, another company agreed to pay $5.9 million to settle two similar class actions premised on alleged FCRA violations brought against the company and its subsidiaries in Illinois.

Hence, employers should audit their hiring practices to ensure they not only comply with the FCRA but all other applicable state and local laws pertaining to use of criminal background and consumer credit reports when assessing an applicant's qualifications for employment. An increasing number of states and municipalities have enacted or are considering enacting laws or ordinances that impact whether an employer may permissibly use an applicant's criminal record or credit history to disqualify the applicant from employment or when during the hiring process it is permissible to inquire about these matters. Congress also is considering legislation that will amend the FCRA to limit employer use of consumer credit reports.

Notwithstanding, an employer that permissibly obtains and uses criminal background and consumer credit reports about applicants when determining their qualifications for employment should ensure consistency in its hiring decisions to avoid an inference of discrimination against racial or ethnic groups. It also should be prepared, if necessary, to demonstrate that any decision disqualifying an applicant from employment based on adverse criminal background or credit history is justified based on job-related requirements since the Equal Employment Opportunity Commission and plaintiff lawyers are increasingly scrutinizing and legally challenging such decisions depending on the circumstances.