Leaves of Absence/FMLA Law and Practice

On Thursday, February 25, 2016, the U.S. Department of Labor proposed new rules to implement Executive Order 13706, which requires certain federal contractors to provide qualifying employees with at least seven days of paid sick leave each year, including paid leave for family care. The Department of Labor intends to publish a final version of these rules by September 30, 2016, and employers who contract with the federal government should begin preparing for their implementation now. Noncompliance could result in suspension of federal payments or even termination of a federal contract.
Continue Reading New Mandatory Paid Sick Leave Rules Could Ensnare Unwary Federal Contractors

Armed Services Board of Contract Appeals logoThe Armed Services Board of Contract Appeals (ASBCA) recently granted a claim sponsored by the prime contractor for its subcontractor’s employee severance costs under a fixed-price contract. Appeal of Government Contracting Resources, Inc., ASBCA No. 59162 (March 12, 2015).

Government Contracting Resources, Inc. (GCR), sought additional compensation for severance costs it incurred, along with its subcontractor, upon expiration of its service contract with NASA for the distribution of mail at the Kennedy Space Center. A collective bargaining agreement (CBA) between GCR subcontractor Creative Management Technology Inc. (CMT) and the International Association of Machinists and Aerospace Workers (IAMAW) granted severance pay to CMT bargaining unit employees who were not rehired by a successor company at the end of the service contract. The provisions of the CBA had been incorporated, through a modification, into GCR’s service contract with NASA.


Continue Reading Sponsored Claim for Subcontractor Severance Pay Granted under Fixed-Price Service Contract

As of March 27, “spouse” under the Family and Medical Leave Act (FMLA) will include same-sex spouses for any legally recognized marriages based on the laws of the state of celebration. On February 25, as expected, the Department of Labor (DOL) published its final rules on the definition of spouse under the FMLA in light of the Supreme Court’s Windsor decision. Based on this final rule, the definition of spouse will be based upon the law of the jurisdiction where the marriage was entered into (place of celebration) rather than based on the law of the state of the employee’s residence (or work) “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.”
Continue Reading DOL Issues Final Rule Revising the Definition of “Spouse” Under the FMLA

Some employers believe that an employee who is out on FMLA cannot be disciplined or terminated. More savvy employers know that such a broad application is not quite accurate, as an employee’s request for or taking FMLA leave does not give the employee any greater rights than if the employee were actively at work. This case, here, is a prime example.

What happened?  The employee requested leave for birth of her child, and the leave was granted. While on leave, however, the employee visited the employer’s premises. While there, she took home 6 cases of sample baby formula (yes, the employer produces baby formula), and doing so was a clear policy violation (think – stealing). A co-worker reported the misconduct, and an investigation resulted in the employee’s termination. The employee then sued, claiming that she was terminated while on FMLA leave and thus the termination was unlawful.
Continue Reading Termination During FMLA Leave Not Unlawful

The Supreme Court’s Defense of Marriage Act (“DOMA”) ruling will impact the “spouse” definition in the Family and Medical Leave Act (“FMLA”) (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.

It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do “in the meantime?”
Continue Reading DOMA and the FMLA – What Should Employers Do “In the Meantime”?

The Department of Labor recently issued new FMLA regulations. The new regulations will take effect March 8, 2013. The regulations will have limited impact on most employers. However, the new regulations will require employers to obtain and post a new poster with the revised language contained in the regulations.

The other, more substantive impact is

The EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).

Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.


Continue Reading EEOC Continues Aggressive Look at Employer Leave Policies

The Equal Employment Opportunity Commission (EEOC) has approved its strategic plan for fiscal years 2013 to 2016 to set the agency’s national enforcement priorities. The Plan identifies the following six national priorities: eliminating barriers in recruitment and hiring; protecting immigrant, migrant, and other vulnerable workers; addressing emerging and developing employment discrimination issues; enforcing equal pay

Under the Family and Medical Leave Act (“FMLA”), employers face significant challenges in understanding how much information from an employee is considered sufficient to trigger the employer’s duty to follow up. Courts have routinely found that minimal information will trigger an employer’s duty to ask if the employee needs leave and the corresponding duty to seek more information to determine if the FMLA applies. Knowledgeable employers know that an employee does not have to use any “magic language” and does not have to even mention the FMLA or even a need for “leave.” Rather, the employee must provide sufficient information “for an employer to reasonably determine whether the FMLA may apply.”

Some recent decisions address this important issue. In a recent case decided in Michigan, Byron v. St. Mary’s Medical Center, U.S. District Court – Eastern District Michigan, Sept 11, 2012, an employee’s telling her supervisor that she was “too sick to work” and was “going to the emergency room” were sufficient comments to put the employer on notice that the FMLA may be in play. Interestingly, the employer noted that although the employee had pancreatitis, her absences were never more than three consecutive days, meaning that the absences did not qualify anyway. However, the Court noted that given the condition, and the employer’s duty to gather more information, the employer would have learned that the condition was such that her not obtaining treatment would have led to absences in excess of the three-days requirement.


Continue Reading FMLA – What Information is Sufficient to Trigger Employer’s Duty to Follow Up

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave. 
Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination