04/26/2011 10:36:00 AM EST
Foley & Lardner Labor and Employment Law Weekly Update (Week of April 25, 2011)
Tips For Managing Intermittent Leave
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.
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.
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.
medical certification and recertification as often as permitted under the
should have to provide a certification when they initially request FMLA
certification can then be required once every new leave year and every
time the leave reason changes or the employee requests additional leave.
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
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.
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.
substitution of paid leave for unpaid leave.
employees to schedule treatment, when possible, in a way that does not
unduly disrupt operations.
whether a temporary transfer of the employee to a position with equivalent
pay and benefits will better accommodate the employee's need for
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
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
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.