Labor and Employment Law

Recent Posts

Posting Vacation Pics on Facebook While on FMLA Is a Bad Idea
Posted on 13 Feb 2013 by Margaret (Molly) DiBianca

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... Read More

It's Time to Fix the Family and Medical Leave Act -- Here Are Some Suggestions
Posted on 6 Mar 2013 by Robin Shea

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... Read More

Third Circuit: Mailing FMLA Notice Not Enough for Summary Judgment?
Posted on 8 Aug 2014 by Philip Miles

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... Read More

Amendments to California Family Rights Act Regulations Provide Some Clarity to Employers
Posted on 28 Apr 2015 by Sheppard Mullin

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... Read More

Firing a Sick Employee Just Before She Is FMLA-Eligible Is Very Risky
Posted on 27 May 2014 by Eric Meyer

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... Read More

Associational retaliation is not the FMLA's peanut butter cup
Posted on 9 Jul 2012 by Jon Hyman

In Thompson v. North Am. Stainless , the Supreme Court held that Title VII prohibits associational retaliation; an employer cannot retaliate against an employee by taking an adverse action against that employee's close family member. The FMLA permits... Read More

No call, no show, no FMLA
Posted on 21 Sep 2012 by Jon Hyman

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer's attendance policies. According to section 825.302(d) the FMLA's regulations : An employer may require an employee to comply... Read More

HR 101: Don't suggest "No More Hysterectomies" to a woman on FMLA
Posted on 16 Jul 2012 by Eric Meyer

In my years of practicing employment law, I've drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough. But just the other week, it occurred to me that I should probably... Read More

FMLA 101: Don't Make an Employee Work During Leave. Just Don't.
Posted on 11 Aug 2014 by Eric Meyer

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... Read More

Enforce Your Employee Call-In/Notice Requirements -- Even for FMLA Leave
Posted on 29 Aug 2013 by Eric Meyer

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 ) [... Read More

VanDeusen on Coleman v. Maryland Court of Appeals
Posted on 21 May 2012 by Darrell VanDeusen

In Coleman v. Maryland Court of Appeals [ an enhanced version of this opinion is available to lexis.com subscribers ], the Fourth Circuit joined five other appellate courts in holding that the self-care provision of the Family and Medical Leave Act... Read More

EEOC to Consider the Use of Leave as a Reasonable Accommodation
Posted on 6 Jun 2011 by Jon Hyman

I have previously discussed how the ADA may require that employers provide unpaid leaves of absence to disabled employees of more than 12 weeks: Has the ADA swallowed the FMLA for employee medical leaves? ADA may require leaves of absence... Read More

Tags: FMLA , ADA

New Department of Labor Regulations for Same-Sex "Spouse" Under FMLA
Posted on 24 Feb 2015 by Philip Miles

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... Read More

Five FMLA Facts That May Surprise Even the Most-Seasoned HR Pros
Posted on 28 Apr 2015 by Eric Meyer

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... Read More

Physician, Heal Thyself! Good Lessons For Employers from AMA Case
Posted on 21 Oct 2011 by Robin Shea

It could be that the purpose of your life is only to serve as a warning to others. In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical... Read More

  • Blog Post: Department of Labor's 'Bridge to Justice' Will Likely Lead to More Lawsuits Against Employers

    Effective December 13, 2010, an unprecedented joint "Bridge to Justice" initiative between the U.S. Department of Labor and the American Bar Association will assist plaintiffs in obtaining legal counsel for claims under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act...
  • Blog Post: EEOC to Consider the Use of Leave as a Reasonable Accommodation

    I have previously discussed how the ADA may require that employers provide unpaid leaves of absence to disabled employees of more than 12 weeks: Has the ADA swallowed the FMLA for employee medical leaves? ADA may require leaves of absence beyond FMLA mandates Later this week, the EEOC...
  • Blog Post: Timing Is Everything: FMLA Protection in the Face of Discharge

    Scene: Employee has performance issues. Employee notifies his supervisor that he needs leave for a medical condition. Employee calls in sick for two consecutive days, a Thursday and Friday, and returns to work the following Monday. Upon return, the employee tells the supervisor that he will need additional...
  • Blog Post: When the FMLA Does Not Apply: Making the Hard Decision the Right Way

    Imagine you have 40 employees and operate a vocational training school. One of your employees who has worked with you for a year advises you that her son needs a kidney transplant; that she is a match as a donor; and that she would like a leave to undergo surgery. She said the doctors have told her that...
  • Blog Post: USERRA Requires Employer to Provide Returning Employee Equivalent Amount of Pay Rather than Equivalent Rate of Pay

    In a case of first impression, the United States District Court for the Second Circuit recently held that the law requires an employer to pay an employee returning from military service to a commission-based job the same total amount of pay he or she received prior to activation- the employer violates...
  • Blog Post: Employer Alert: FMLA for Domestic Violence Victims

    Last week, Rep. Lynn Woolsey (D-CA) reintroduced the Domestic Violence Leave Act , which expands paid leave options for victims of domestic abuse, sexual assault, or stalking. Details of the Domestic Violence Leave Act Here is a brief summary of the act, courtesy of this press release from Rep...
  • Blog Post: Winning the Battle but Losing the War in FMLA Cases

    The FMLA allows for two different theories of recovery-interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee's use of a protected FMLA right causes an employer's...
  • Blog Post: The ADA Does not Force Employers to Provide Indefinite Leave

    Back in June, I discussed here how the EEOC was discussing the use of leave from work as a reasonable accommodation under the ADA. The question I asked back then was how much leave is reasonable ? When is enough, enough? Well, I can tell you now -- and I suppose I could have told you then -- that...
  • Blog Post: Physician, Heal Thyself! Good Lessons For Employers from AMA Case

    It could be that the purpose of your life is only to serve as a warning to others. In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act. The case is well worth a post...
  • Blog Post: What You Need To Know About Missing Work Due to Illness

    Know your employer's sick leave policy. Most employers require that you call in as soon as you know you won't make it. No law requires paid sick leave. Family and Medical Leave: applies if you have a serious medical condition and need several days off, or need intermittent leave for...
  • Blog Post: Supervisors Could Be Personally Liable for Leave Interference

    by Phyllis Katz In a case decided in late August, Weth v O'Leary , a federal court in Virginia sent a wake-up call to all public employer supervisors when it held that the Treasurer of Arlington County could be held personally liable for interfering with the rights of an employee who was on...
  • Blog Post: Reminder: Include GINA "Safe Harbor" Language in FMLA Forms

    Employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors to covered employers, must comply with the Family and Medical Leave Act ("FMLA"). The FMLA requires covered employers to comply with various notification...
  • Blog Post: Ouch, That Hurts! Supervisors May Be Liable for FMLA Violations

    In this case of first impression in the Third Circuit Court of Appeals, which covers PA, NJ, DE, and USVI, the court ruled that a supervisor in a public agency may be subject to personal liability under the Family and Medical Leave Act . The court further emphasized that there is "no reason...
  • Blog Post: The FMLA and the Honest Belief Rule: Monitoring Leave of Absence Abuse

    Last week, I discussed the bounds of the "honest belief rule" as a defense to a discrimination claim. Yesterday, in Seeger v. Cincinnati Bell Telephone Co. [pdf] , [ an enhanced version of this opinion is available to lexis.com subscribers ]the 6th Circuit used that same defense to affirm...
  • Blog Post: VanDeusen on Coleman v. Maryland Court of Appeals

    In Coleman v. Maryland Court of Appeals [ an enhanced version of this opinion is available to lexis.com subscribers ], the Fourth Circuit joined five other appellate courts in holding that the self-care provision of the Family and Medical Leave Act does not apply to the states because Congress did...
  • Blog Post: Associational retaliation is not the FMLA's peanut butter cup

    In Thompson v. North Am. Stainless , the Supreme Court held that Title VII prohibits associational retaliation; an employer cannot retaliate against an employee by taking an adverse action against that employee's close family member. The FMLA permits an employee to take up to 12 weeks of annual leave...
  • Blog Post: Be careful what you ask for: retaliatory counterclaims under the FMLA

    Being sued by a current or former employee generally does not trigger many positive reactions from employers. A common question which is often asked is: can we counter-sue? When pressed by counsel for the basis of a counterclaim, the answers range from those with a colorable basis to those based on emotion...
  • Blog Post: HR 101: Don't suggest "No More Hysterectomies" to a woman on FMLA

    In my years of practicing employment law, I've drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough. But just the other week, it occurred to me that I should probably add some language to the effect that supervisors should...
  • Blog Post: Don't estop believing: employer backs itself into FMLA claim for ineligible employee

    I've written before about the FMLA's unique rules for when an employer is covered and when an employee becomes eligible to take leave. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding...
  • Blog Post: Horseshoes, hand grenades and....FMLA eligibility?

    And here I thought close only counted in the first two... Who knew that close enough is good enough under the Family and Medical Leave Act (FMLA) when meeting the 1,250-hour eligibility requirement? Apparently, the Second Circuit Court of Appeals in this recent decision . In Donnelly v. Greenburgh...
  • Blog Post: How long is too long for a medical leave of absence?

    Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves : The recently amended ADA is expansive enough to cover most medical conditions . If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during...
  • Blog Post: Is "casual conversation" of a parent's health enough to trigger FMLA?

    Last month, in this post , I addressed a recent opinion in which the court held that the words "Emergency Room," when uttered by an employee to his employer are enough to put the employer on notice -- at least initially -- that the employee needs leave under the Family and Medical Leave Act...
  • Blog Post: No call, no show, no FMLA

    Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer's attendance policies. According to section 825.302(d) the FMLA's regulations : An employer may require an employee to comply with the employer's usual and customary notice...
  • Blog Post: 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...
  • Blog Post: 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...