FMLA Back Pay Includes Overtime

In Pagan-Colon v. Walgreens of San Patricio , 2012 U.S. App. LEXIS 18595 [ enhanced version available to Lexis.com subscribers ], the First Circuit held as a matter of first impression that an award of back pay under the FMLA includes overtime. A jury entered judgment in favor of the plaintiff on his...

DOL Issues Guidance on FMLA for Adult Children

Most people know that FMLA covers leave to care for a son or daughter who is under 18 and has a serious health condition. But, did you know that FMLA also covers a child who is "18 years of age or older and incapable of self-care because of a mental or physical disability?" Last week...

Employer's Bane: Unpredictable FMLA Leave. Is There a Solution?

Employers, has this ever happened to you? An employee in a critical-but-inflexible position -- say, a customer service representative -- asks for "intermittent" leave under the Family and Medical Leave Act. If the intermittent time off is "scheduled," it's usually not too...

FMLA Compliance Is Not as Easy as the DOL Says [Poll Results]

In celebration of the FMLA's 20th anniversary, the Department of Labor released the results of a survey of employers on their experiences managing the statute. According to the DOL, " employers generally find it easy to comply with the law , and ... the vast majority of employers, 91 percent...

Posting Vacation Pics on Facebook While on FMLA Is a Bad Idea

The FMLA turned 20 last week and there has been a flurry of articles and posts discussing how the FMLA has changed the workplace, whether it imposes too high of a burden on employers, and predicting how it will likely continue to evolve. Academic commentary aside, though, we all know that the FMLA...

It's Time to Fix the Family and Medical Leave Act -- Here Are Some Suggestions

Dear Congressperson: I know you are busy, but I am hoping you can take a few minutes out of your sequester stuff to help with the Family and Medical Leave Act, as amended by the National Defense Authorization Act of 2008, as amended again by the National Defense Authorization Act for Fiscal Year...

Family and Medical Leave Act Amendments May Impact Company Policies

Family and Medical Leave Act (FMLA) policies have been the subject of many changes over the past several years. The FMLA entitles an eligible employee to take up to 12 weeks (and in some situations 26 weeks) of unpaid leave during a 12-month period for a qualifying reason. The addition of the military...

Is This the Worst Fake Doctor’s Note Ever? And What Could You Do About It?

Buzzfeed recently published this note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with...

DOL Guidance Clarifies FMLA Rights for Same-Sex Couples

It has been nearly two months since the U.S. Supreme Court nullified Section 3 of the Defense of Marriage Act ("DOMA"). Yet, the Administration has been largely silent on its interpretation of how the Supreme Court's decision affects the 1,100 plus federal laws that use the term "spouse...

Enforce Your Employee Call-In/Notice Requirements -- Even for FMLA Leave

In that handbook of yours should be a page -- maybe a few lines -- on an employee's responsibility to notify you if they are going to miss work. Who to call, when to call, that kind of stuff. A recent case from the Sixth Circuit ( this one ) [ an enhanced version of this opinion is available to...

FMLA Now Covers Same-Sex Spouses (Sort Of)

Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor [ an enhanced version of this opinion is available to lexis.com subscribers ], there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws. Windsor held that DOMA’s...

TX: Court Affirms Retaliatory Discharge Judgment

A Texas appellate court recently affirmed a judgment on a jury verdict of more than $100,000 in favor of a former employee who filed a retaliatory discharge action against the former employer. The employer contended the employee was terminated pursuant to a “uniformly enforced, cause-neutral absence...

When an Extended Leave of Absence is NOT a Reasonable Accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason . For one, the EEOC says that hard-capped leave of absence policies violate the ADA . For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s...

Steptoe & Johnson PLLC: FMLA Misstep Proves Costly to Energy Employer

By Lindsay M. Bouffard An oil and gas support services company recently paid more than $43,000 in back wages and agreed to reinstate a terminated employee after a Department of Labor (DOL) investigation revealed the company terminated an employee in violation of the Family and Medical Leave Act...

Is An “Unlimited” Leave Policy Good Business For You?

by Annemarie Cleary A growing number of businesses are considering “unlimited” leave policies for their exempt employees. Unlimited leave policies are excellent recruiting and retention tools that can foster a culture of trust and productivity at the right business. But, the anticipated...

New Bill in Congress Will Revamp FMLA to Cover Smaller Employers

How about cutting the 50-employee requirement for covered employers in half? So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act. And that's just part of the Family and Medical Leave Enhancement...

Firing a Sick Employee Just Before She Is FMLA-Eligible Is Very Risky

So, check this out. I read this case yesterday about an employee who provided her company with a November 12 doctor's note, requesting that her hours be reduced due to her high-risk pregnancy. The employee would have become eligible for coverage under the Family and Medical Leave Act on November...

The Importance of Communication During FMLA Leave

How many times has an employee provided you with an incomplete Family and Medical Leave Act certification? Oh, I don't know, maybe a missing return date... If the FMLA leave is foreseeable , then the employee must provide the employer with the anticipated timing and duration of the leave. However...

Changes Ahead for FMLA Spouse Definition

The Department of Labor (DOL) will soon publish a Notice of Proposed Rulemaking regarding the definition of "spouse" under the Family and Medical Leave Act (FMLA). The new rule will enlarge the definition of spouse and likely simplify administration for employers. In August 2013, the DOL issued...

Third Circuit: Mailing FMLA Notice Not Enough for Summary Judgment?

Sometimes the most mundane tasks can make or break your case. Here's something I never thought I'd say: Big decision from the Third Circuit about how to mail FMLA notices! Read the opinion in Lupyan v. Corinthian Colleges, Inc. (for my Pennsylvania readers, the Third Circuit is our jurisdiction...

FMLA 101: Don't Make an Employee Work During Leave. Just Don't.

Really. It's a bad idea. Like my youngest son using chopsticks and a fork at the same time to eat pho . Ok, not that bad. But, definitely blogworthy. I read this case over the weekend about an employee who, while on maternity leave under the Family and Medical Leave Act, was required to...

Foley & Lardner LLP: Cherry-Picking: 7th Cir. Criticizes Lawyers' Summary-Judgment Practice

By Thomas L. Shriner Jr. Two weeks ago, in an order given wide publicity nationally, federal District Judge Mark Bennett of the Northern District of Iowa issued sanctions in Security National Bank v. Abbott Laboratories , addressing what Judge Bennett perceived as abusive discovery conduct in a case...

Here's Why You Provide a List of Essential Job Functions When Approving FMLA

The FMLA's return-to-work requirement. Under the Family and Medical Leave Act , an eligible employee has the right to take up to twelve workweeks of covered leave for, among other things, for the employee's own serious health condition. The FMLA prohibits an employer from interfering with...

Questioning an Employee’s FMLA Leave? Require Certification.

by Kaitlin L. Hillenbrand Allowing employees to take FMLA leave is good for employees, it’s good for families, and, of course, it’s required by law. But what if you have an employee who takes FMLA leave when nothing seems to be wrong? For example, you could have an employee who reports...

HR Cheatsheet: When an Employee Texts You From an Ebola Quarantine Tent

Five minutes ago, after taking the obligatory selfies and between games of Candy Crush, one of your employees texted (because, calling in, as if!) from an Ebola quarantine tent to alert you that she will be out of work for 21 days, while under observation for Ebola. As an employer, what are your obligations...