BizLawBuz …. The Power of Know

Determining Whether Your Business is Covered
Few pieces of federal employment legislation have proven more difficult to untangle and to administer than the Family and Medical Leave Act of 1993 (FMLA). At its core, the FMLA allows eligible employees to take as much as twelve weeks of unpaid leave to deal with their own or a family member’s medical needs with the assurance that their jobs will be held pending their return. That sounds simple enough, but administering FMLA leaves with your work force can be a real challenge. And if you run afoul of the FMLA’s requirements, your business can face a claim for back pay, future pay, liquidated damages (basically a penalty), mandatory interest and attorney fees. For all of these reasons, it is imperative that covered employers understand and comply with the FMLA.

Who is a Covered Employer?
An employer is covered by the FMLA if it has employed at least 50 employees for each work day of 20 or more workweeks in the current or prior calendar year. This includes all full or part-time employees on the payroll, including unpaid employees (e.g., someone out on an unpaid FMLA leave still counts toward the 50). It does not include employees who work outside of the United States or its territories.

Notice that the test is not whether the employer currently has 50 employees. It is based on the current or prior calendar year, and it is based on any twenty weeks in that year. The weeks need not be consecutive.

Joint Employers and Integrated Employers Beware!
More than once, I have had clients tell me they needn’t worry about the FMLA since they lease their employees from a Professional Employer Organization (PEO). In most of these instances, the business will be deemed a “joint employer” along with the PEO and will be equally responsible for assuring compliance with the FMLA.

Likewise, two or more businesses with closely entwined ownership or management may be deemed “Integrated Employers” whose workforces will be counted collectively to test the 50 employee FMLA threshold. According to the applicable federal regulations, courts will analyze the following factors to decide whether multiple employers are integrated under the FMLA: (1) common management; (2) the interrelationship between the companies; (3) whether control of labor relations is centralized; and (4) the degree of common ownership or financial control. Typically, courts will be especially influenced by common management and shared control of the labor force.

You Can’t Comply if You don’t Know Your Obligations
Though cumbersome, compliance with the FMLA can be managed effectively with proper attention and planning. The first step is determining whether your business is covered and conducting periodic checks for any change in its status. If you need help, please feel free to give us a call.

Dirk A. Beamer

Amendments to Family Medical Leave Act (”MFLA)

On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (”NDAA”). Although the NDAA is a defense appropriations law, it includes amendments to the family military leave provisions of the Family and Medical Leave Act (”FMLA”). These recent changes to FMLA deal primarily with qualifying exigency leave and military caregiver leave.

Qualifying Exigency Leave
The NDAA expands the exigency leave available under the FMLA to eligible family members of active-duty service members, and also amends the FMLA to provide eligible employees with up to 12 workweeks of leave during the designated 12-month FMLA leave year when the employee’s son, daughter or parent (who is a “covered military member”) is on active duty or call-to-active-duty status for one or more qualifying exigencies. Prior to these amendments, FMLA qualified exigency leave applied to Reserve and National Guard members only, and not members of the regular Armed Forces. Qualifying exigency leave includes: short-notice deployment; military events and related activities; child care and school activities; financial and legal arrangements; counseling, rest and recuperation; post-deployment activities; and any other event the employer and employee agree is a qualifying exigency.

Military Caregiver Leave
Additionally, the NDAA extends eligibility for military caregiver leave to the families of veterans, not just current members of the Armed Forces. Caregiver leave provides eligible employees, who are the spouse, son, daughter, parent or next of kin of covered military members of the Armed Forces, including members of the National Guard or Reserves, 26 workweeks of leave during a 12-month period to care for that military member, who because of a serious injury or illness, is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is otherwise on the temporary disability retired list. The law extends the 26 weeks of leave to family members of veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness at any time during the period of five years preceding the date on which the veteran undergoes that treatment. Therefore, the caregiver would be able to take up to 26 weeks of leave to care for a veteran for up to five years after the military member leaves military service.

These changes, presumed to be effective immediately, will once again require employers to update their FMLA policies and inform proper personnel accordingly.

Julie Pfitzenmaier

Two recent decisions from the 6th Circuit Court of Appeals in Cincinnati show how careful employers must be to avoid discrimination claims and violations of the Family and Medical Leave Act (FMLA). In the first case, Sanford v. Main Street Baptist Church Manor, Inc., the Court found that the employer had not taken sufficient steps to protect against sexual harassment in the workplace. In the second, Hunter v. Valley View Local Schools, the federal appeals court ruled that an employee may bring a claim under the FMLA so long as she can show that her use of FMLA leave was at least a “factor” in the employer’s decision to take adverse action against her.

In Sanford, the Plaintiff-employee sued the employer for an alleged sexually hostile work environment. As a defense, the employer argued that it had exercised reasonable care to prevent and correct any sexual harassment that the employee might have suffered. Normally, if supervisors and superiors take appropriate action, the employer will not be held liable based on inappropriate remarks or comments “on the floor” that might be offensive to other co-workers. But the decision in Sanford makes clear that employers cannot escape liability if they have not taken actual steps to weed out and discourage intimidating or harassing behavior. Specifically, the judges from the 6th Circuit were concerned that the employer’s handbook did not force supervisors to report harassing conduct. Nor did it offer a process for informal or verbal complaints. Nor did it give the employee the option to bring a complaint to someone else in management where the supervisor was the alleged harasser. Finally, the Court took note of the fact that the employer had not conducted any sexual harassment training in the workplace. For all of these reasons, the Court determined that the employer had not shown “reasonable care” to prevent sexual harassment in the workplace.

In Hunter, the Plaintiff-employee had returned to work with certain medical restrictions after being out on FMLA leave. The employer forced her to take an unpaid medical leave for up to one year. She sued, arguing that the forced leave was unlawful retaliation for her exercising her right to leave under the FMLA. The employer argued that, even if her FMLA leave had been one reason for forcing her to take unpaid medical leave, it was not the only reason. Because the medical restrictions limited her ability to perform, the employer claimed it had a legitimate reason to require the medical leave.

In a significant ruling, the 6th Circuit determined that a plaintiff may bring a claim for retaliation under the FMLA if his use of FMLA leave was one of the factors that caused the employer to take an adverse employment action – even if the other factors were lawful. Thus, in “mixed motive” cases under the FMLA, employers will not be able to defeat claims simply by showing they had a legitimate basis for their decision where improper bases also entered the decision-making process.

In difficult economic times, employees are more likely than ever to pursue any plausible basis for economic recovery. Employers should review their employee handbook and their employment practices very carefully to minimize the risk of unwanted and unintended employment claims.

Dirk A. Beamer