LexisNexis® Legal Newsroom
Does the Time I Worked as a Temp Count Towards My FMLA Entitlement?

Yes it does. See Miller v. Defiance Metal [ an enhanced version of this opinion is available to lexis.com subscribers ], a 1997 case out of the Ohio Federal Court, which provides an excellent discussion on why temp agencies and employers are considered "joint employers." What does...

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...

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...

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...

Family and Medical Leave, Doctor's Notes, and Employee Preferences

It has been a long time since we talked about the Family and Medical Leave Act, but a couple of interesting and noteworthy decisions came out this week from Way Out West. Our first case, from a federal district court in Oregon, answered the following question: Can an employer require a doctor's...

The Ninth Circuit Said What About Designating FMLA Leave?

Ok, I will admit it. I have read the FMLA regulations from front to back…several times. An even bigger admission – I actually enjoy reading the regulations. While managing FMLA leave is not exactly a walk in the park, the regulations are actually quite refreshing. They make sense. They...

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...

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...

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...

“Honest Belief” Isn’t a Defense to an FMLA Claim, Says Federal Court

The honest-belief rule is one of most effective shields available to employers in discrimination cases: As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it...

Telling an Employee Returning From Open-Heart Surgery, "Don't Die at the Desk" Is Bad. Very Bad.

Also, threatening to drag that employee outside and throw him in a ditch. Yeah, that may fracture a law or two. I'm thinking the Family and Medical Leave Act. Heck, even the Taliban would frown on that. Terry Baier worked at an auto dealership in Illinois. In 2011, he suffered chest pains and...

An Employee Must Ask for ADA Accommodation to Receive It

By now, hopefully everyone reading this blog knows that the expiration of an employee’s 12 weeks of annual FMLA leave is not necessarily the end of that employee’s unpaid leave of absence for his or her own medical issues. Under the ADA, an employer must consider granting unpaid leave the...

New Department of Labor Regulations for Same-Sex "Spouse" Under FMLA

Tomorrow, the Department of Labor will publish a Final Rule to Revise the Definition of “Spouse” Under the FMLA (including links to additional information). Per the DOL, the "major features" are: • The Department has moved from a “state of residence” rule...

Marriage Equality and the FMLA

The Supreme Court’s 2013 ruling in United States v. Windsor created a lot of uncertainty in the area of federal employment benefits. Because the federal government’s definition of marriage as being between one man and one woman was held to be unconstitutional, the decision left open the question...

FMLA’s “Same-Sex Spouse” Rule On Hold, For Now

Today, the new rule that would permit FMLA benefits for same-sex spouses was to take effect. However, late yesterday, a federal judge in Texas granted a preliminary injunction [pdf] temporarily halting the rule . The plaintiffs—the attorney generals of four states that do not recognize same...

Five FMLA Facts That May Surprise Even the Most-Seasoned HR Pros

How do I top yesterday’s FMLA cluster ? That’d be like asking a pitcher who just threw a no-hitter to get back out there and pitch another one. Well, gimmee a second to limber up, grab my rosin bag, and, Imma start dealing a few FMLA curveballs. (See what I did there?) A private...

Amendments to California Family Rights Act Regulations Provide Some Clarity to Employers

by Lisa Harris and Dorna Moini The California Fair Employment and Housing Council (FEHC) has issued amended regulations clarifying the California Family Rights Act (CFRA). The amendments will go into effect on July 1, 2015, and are intended to clarify previously confusing rules and adopt regulations...

“FMLA” Is Not A Magic Word

Does an employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or, what if an employer fires an employee who misses work because of an FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer violated the statute? In Festerman v. County of Wayne...

Court Imposes FMLA Catch-22

If you arrive at a friend's house at 12:05 a.m. and leave 14 hours later, would you say you stayed overnight? Of course you would. It's common sense. But common sense is sadly lacking in employment law many times. In a case where an employee faced a FMLA Catch-22 , the Third Circuit said that...