Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:

It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].

The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:

• she had progressed rapidly from entry level to Vice President within two years;
• there were no written warnings for performance issues;
• there were numerous written positive comments from various members of management about her performance;
• although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
• the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.

Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.

Domestic VIolence - a Lurking Issue

Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens.

Violence in the workplace is the most horrific aspect, but I can't help think that productivity issues are more prevalent. Many of the potential amendments to the FMLA include domestic violence as a trigger. When legislation starts recognizing it as an employment issue, may be the time it starts being more visible. If you haven't given it any thought, it might be a good idea.

FMLA Coverage by Estoppel - Via State Law Claims

I have posted before about the dangers of creating coverage by estoppel relying in part on the Supreme Court decision in Arbaugh v. Y & H Corp. See The Progeny of Arbaugh and Danger for the Small Employer.

Without mentioning Arbaugh, the 7th Circuit points out that there are state court theories that could result in coverage under the FMLA. In its handbook, and repeated in its letters to an employee who requested FMLA leave, the employer used the following language about eligibility:

To be eligible for FMLA benefits, an employee must have worked for a covered employer for a total of 12 months and have worked at least 1,250 hours over the previous twelve months.

What was missing was the so called 50/75 exception, that an employee is not eligible if they are at a worksite with less than 50 employees within a 75 mile area.

Unfortunately, that was exactly the situation in Peters v. Gilead Sciences Inc. (7th Cir. 7/14/08) [pdf]. Peters was at a work site where the 50/75 exception would have been applicable. When FMLA protection became an issue, Peters lost at the trial court.

Without addressing the concept of equitable estoppel, the Court found that the Indiana state law claims of contract law (based on the handbook) and promissory estoppel might be enough to create coverage and reversed the trial court's grant of summary judgment. It also said that whether equitable estoppel ( where Arbaugh might make a difference) might also be available, remained an open question under 7th Circuit law and one that they need not decide now.

Word to the wise, words matter. If you intend to rely on a 50/75 exception, you should say so.

5th Circuit Limits "Associational Rights" Under the FMLA

There has been a recent spate of activity about associational rights under various statutes, with most of them taking a relatively broad view of expanding protection for those who have been discriminated/retaliated against because of their association with an employee who had a substantive claim. See for example the Laconic Law Blog's post on Associational Discrimination or the Ohio Employer's Law Blog post on an April decision by the 6th Circuit.

Which makes Friday's decision by the 5th Circuit in Elsensohn v. St. Tammany's Parish Sheriff's Office (5th Cir. 6/6/08) [pdf] interesting because the 5th Circuit refused to do so under the FMLA. Elsensohn's wife, who was formerly employed by the Sheriff's office had an FMLA claim against it. Elsensohn was a sergeant. According to his complaint, "at all times Elsensohn attempted to not involve himself in his wife's FMLA claim except to give her moral support."

After she settled her FMLA claim, Elsensohn claimed he was denied a promotion and was transferred to a less favorable position. He sued under FMLA saying he had been retaliated against because the employer knew if her case went to trial he would testify on her behalf.

However, he did not fit under the literal language of the statute of being one who "had given, or was about to give" any information in connection with a proceeding, nor had he "testified, or was about to testify in any inquiry or proceeding." The district court found his potential participation with his wife's claim was not enough to bring him literally within the wording of the FMLA's protective ambit.

The 5th Circuit while agreeing that some other courts had expanded laws to cover such claims, noted it had refused to do so under the ADEA, and since it appeared the protection there was even broader than that afforded to individuals under the FMLA, declined to do under the FMLA as well.

In the greater scheme of things, not a huge decision, but certainly an interesting one in a unique niche that seems to be getting some attention of late.

There is FMLA Expansion and Then There Is FMLA Expansion

As I mentioned in an earlier post, I am doing a speech at the SHRM national convention on the potential impact of the 2008 elections. One of the areas I will be covering is possible expansion of the FMLA. But those bills are pikers compared to what was offered in the Connecticut legislature. Thanks to Daniel Schwartz at the Connecticut Employment Law Blog for his post, The Right to Attend Opening Day at Yankee Stadium...and Get Paid by Your Employer.

Actually it was better than just opening day, it was also for the first day of summer, and also "the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes." But apparently it was more of a satirical offering by some Republicans opposed to paid leave than a serious offer.

I think what is scary is that I wasn't sure that it was not a serious offer until I read Daniel's post.

Initial Reactions to the New (Proposed) FMLA Regs

Apparently some folks did some reading over the weekend, as the first reactions to the Bush proposed FMLA regulations are beginning to trickle in. In early comments, two business trade organizations were tentatively pleased --

• The National Retail Federation:

  The proposed changes to the current FMLA regulations provide additional clarity to a law that has helped millions of workers and their families," NRF Vice President for Government and Political Affairs Rob Green said. "Pending a thorough review of the proposed regulations, our initial analysis indicates that the new rules will help modernize a confusing and contradictory FMLA regulatory system that is often challenging for employees to understand and difficult for employers to administer. This long-overdue update will help restore FMLA regulations to the intent Congress had when it passed the original law 15 years ago.

• The National Association of Manufacturers:
  

  We welcome the Department of Labor’s decision to address the way the Family and Medical Leave Act is applied in the workplace. Today’s action is the result of tens of thousands of comments to the federal government from both employers and employees, and it builds on a decade-long record of congressional testimony and legal decisions that reached the Supreme Court, all pointing to the practical challenges involved in granting family and medical leave. Over the course of the regulatory process, the NAM looks forward to reviewing the proposal thoroughly to ensure it upholds the benefits outlined in the law, while addressing critical administrative problems.

Not unexpectedly, Senator Hillary Clinton's campaign was not :

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

The Family and Medical Leave Act makes it possible for people to meet their responsibilities at work and at home. I have advanced a positive agenda to move our nation towards this goal. The President's proposed regulations, unfortunately, are a harmful step back.

Daniel Schwartz at the Connecticut Employment Law Report not only has a new job, but also has an initial survey of how this issue is being treated among the blogging community in his Wrapup.

And one of my Washington colleagues, Al Robinson who has long been monitoring developments in this area has pointed out that we may get some initial congressional reactions in hearings that were already scheduled to commemorate the 15th anniversary of the FMLA's passage:

• The Children and Families Subcommittee of the Senate Health, Education, Labor and Pensions (HELP) Committee will hold a hearing on Wednesday, February 13, at 3:00pm; and


• the Workforce Protections Subcommittee of the House Education and Labor Committee will hold its hearing on Thursday, February 14, at 10:00am.

For those who prefer a pdf link to the new regulations as opposed to the text link that was available in my Saturday posting (where you can see some early thoughts on the regs) go here. And yet another link -- an e-alert from my firm with more thoughts can be found here.

Based on the early returns, it's too early to project a winner, but I think you are safe in saying that there will be a contested battle.

Waiting with Bated Breath - the Proposed New FMLA Regulations Coming Monday

It probably won't quite stack up with the drama of the Patriots v. Giants classic of a week ago, but the suspense this week end waiting for the release of the proposed FMLA regulations may be intense. U.S. Department of Labor proposal will clarify FMLA rules for workers, employers and military families. Or maybe not.

Just in case you wondered how much anticipation you should have, the typed version apparently comes in just under 500 pages.

Update Saturday morning: For those who just can't wait until Monday morning, here's the link to the new regulations. Happy reading.

Some brief highlights:

• The definition of "serious health condition" would be modified to require that the 2 or more treatments must occur within a 30 day calendar period and for chronic conditions the employee would have to see a physician for the condition at least twice a year;


• There is no change in the time increments in which intermittent leave can be taken, which is something the employer community really would have liked. The proposed regulations would require that an employee using intermittent leave utilize the employer's regular call in procedure except under "emergency" situations, which is a plus.


• There are numerous changes to medical certification provisions which would allow an employer to obtain more information from health care providers;


• One of the best examples that has been used to bash the FMLA would be changed, the employee on FMLA leave would no longer be entitled to receive a "perfect attendance" or similar bonus as long as all types of leave are treated the same;


• Employer and employee notification requirements are also changed. Employers would be required to provide annual notice of FMLA rights and responsibilities to employees but would get five days rather than the current two to provide an employee notice of eligibility for FMLA leave and designate a leave as FMLA; and


• there's a change in the 12 month service rule for eligibility to exclude a break in service of more than 5 years, subject to exceptions for military, authorized educational or childrearing leaves, or where intent to rehire are covered by a collective bargaining agreement.

There is also a request for input on how the DOL should handle the recent expansion of the FMLA related to military leaves.

These proposed rules are not nearly as dramatic as the ones that were originally proposed to the white collar regulations which set off a legislative and political uproar. It will be interesting to see what happens to these. Although there will no doubt be comments from both sides, my initial thoughts are that if anyone should be howling for more, it should be employers.

A good example is intermittent leave. If you have any doubts that it is a real problem in need of a solution, consider what is happening to the Hillsborough Transit Authority in the Tampa area. It is currently faced with a $2.1 million cost because 42% of HART's 364 bus drivers have filed for intermittent medical leave. See, Family medical leave usage bloats HART's overtime.

According to the article,

HART executives are being forced to budget 18 percent more drivers to cover the daily workload. Those extra drivers report to work and wait for assignments to cover workers who call in sick.

Unscheduled absenteeism is on the rise among the drivers, up 34 percent since 2005. Nearly 40 percent of the HART bus driver absenteeism is a result of workers claiming intermittent time off under the Family Medical Leave Act.

It seems unlikely that the proposed changes in the regulations will help address these types of problems.

The new regulations have a 60 day comment period. Although it is not uncommon for those periods to be extended, I wouldn't count on it in this case as no doubt the folks at the DOL are well aware that the sand in the hourglass on the Bush administration is rapidly running out.

FMLA Expansion - Maybe Not So Quick

Dan Schwartz's Connecticut Employment Law Blog has been one of 2007's leading entries into the employment law blog arena. An example why is that even while vacationing he was keen enough to pass along a caution that the FMLA expansion that has been mentioned in several blogs recently (including this one), seems to have hit a Presidential snag. President to Veto Bill with Expanded FMLA Benefits to Military Families.

What's more impressive is that Dan is apparently the first to make the connection between the well publicized veto and the hit to the FMLA expansion, as my google news search a moment ago for "fmla and veto" came up with no hits. A huge tip of the hat for a scoop not only in the (relatively) small world of employment law blogging, but of the big time media as well.

It seems that the offending clause in a 1000+ page bill is § 1083 which provides in part:

Chapter 97 of title 28, United States Code, is amended by inserting after section 1605 the following:
`Sec. 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

`(a) In General-

`(1) NO IMMUNITY- A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

That particular provision was of great concern to the Iraq government and the concerns have convinced the White House of the need to take action.
,
Since the pocket veto (last heard about in your high school senior civics class) is causing some political waves for President Bush, see In Surprise Step, Bush Vows Veto of Military Bill, and the bill was passed overwhelmingly by both the Senate and the House, it seems quite likely that after the first of the year everything will be worked out and the expansion will go through.

But as Dan says, "it's fair to say that this situation is fluid."

FMLA Expanded with Passage of Department of Defense Funding Bill

More action on the legislative front as Congress today adopted the first expansion of the Family and Medical Leave Act since its original passage. Although for a limited (and good) cause, the expansion is a big one.

It encompasses two kinds of leave --

• 12 weeks where "the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation; and

• 26 weeks where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. This is apparently a one time leave.

In short, the expansion which is part of the Department of Defense funding bill is designed to provide possible leave for families of servicemen for both active duty call ups and cases of injury.

Although it is part of a much bigger bill, the relative portions expanding the FMLA can be found here. President Bush is expected to sign the bill.

It is unclear when it will be effective, although arguably it could be as soon as it is signed by the President which should be in the next few days, even though obviously there will be no regulations for some time.

Stay tuned for more details.

The Progeny of Arbaugh - Coverage by Estoppel

Maybe it's just the law of unintended consequences, or perhaps more fairly for the Court, the law of unanticipated consequences, but when the Supreme Court held in Arbaugh v. Y & H Corp. that the 15 employee limit was not jurisdictional it barely got more than a ho-hum, at least from me.

Just to prove my point I quote myself from my initial post on Arbaugh:

"In a case that is of more importance to the technicalities of the legal process than to employment law, the Supreme Court yesterday held that the requirement of 15 employees for coverage of Title VII is an element of the plaintiff's case, not a jurisdictional prerequisite."

And I finished off with this —

"All in all a tidy summary of federal courts law and the principle that federal courts are courts of limited jurisdiction --- but not an employment law blockbuster."

— which could prove yet another faulty prediction on my part.

That will certainly be true if a trend that I first noted last month in Danger for the Small Employer: 'Estopping' yourself into coverage where the 6th Circuit held that there were circumstances where an employer with fewer than 20 employees could create coverage by its actions, continues.

It did continue on Friday the 13th, when Judge Mark Bennett of the Northern District of Iowa, in a 26 page opinion, based in part on Arbaugh, held it is possible that an employer with fewer than 50 employees within a 75 mile radius, could still find themselves "required" to grant FMLA leave, based on their conduct, even though not technically within the coverage of the statute. Myers v. Tursso Company Inc.

Many large companies have taken the position that they would treat all employees the same under the FMLA, even though some might not technically qualify because of the 50 employees within 75 mile requirement. Their lawyers have often gone along, thinking that in a pinch they could still use the requirement as a defense if an issue arose. That may still be viable in some cases, but the Arbaugh based estoppel decisions make clear it is not always a hands down winner.

Hat tip to the folks at Employment Law 360 for the tip to the Myers decision.

FMLA Feedback, Not Regulations — And Another Prediction

Information, but no proposed regulations — that seems to be the result of the DOL's request for feedback on how the FMLA is working. See the full report at Family and Medical Leave Act; information request; report.

According to the DOL the main areas of response were about three primary topics:

1. gratitude from employees who have used family and medical leave and descriptions of how it allowed them to balance their work and family care responsibilities, particularly when they had their own serious health condition or were needed to care for a family
   member;
2. a desire for expanded benefits--e.g., to provide more time off, to provide paid benefits, and to cover additional family members;
3. frustration by employers about difficulties in maintaining necessary staffing levels and controlling attendance problems in their workplaces as a result of one particular issue--
   unscheduled intermittent leave used by employees who have chronic health conditions.

The AP story as printed on the Seattle Post-Intelligencer website summarizes the report as Medical leave program generally popular, which I don't think really reflects the view of most major employers.

Senator Chris Dodd one of the original authors of FMLA is teaming with Senator Ted Stevens from Alaska to offer a proposal that would create an insurance fund to allow 8 weeks of FMLA leave to be paid. Anyone who says that paid FMLA leave would not result in considerable more use and a multiplication of current employer problems, is either not being realistic or honest, or both.

Still, the political reality is that there is not going to be any "fix" for the foreseeable future that is not accompanied by some sort of expansion in benefits — be it paid leave, more employers covered or longer unpaid leave. And to make matters even worse for employers — if I had to choose which was more likely, expansion of benefits with or without a fix for employers, I would place my money on the latter.

From the Mouth of -- Wage/Hour Investigator, Retired

The coordinater of FMLA investigations in Salt Lake City before her retirement in 2002, minces few words in responding to a writer who refers to the FMLA as the "Ultimate Slacker's Law". To quote:

I wish I had a dime for every employer who said they couldn't afford to let someone have a few weeks "unpaid" time off because they needed the person at work. However, they had a new vehicle sitting in the parking lot, a motor home parked at their six-bedroom house for a family of four and were building a mountain home as a "getaway."

I am sure she was more restrained in expressing her viewpoint, pre-retirement.

And On the FMLA's 10th Anniversary - Why It Is Not Enough

From supporters of the FMLA, what is lacking: Paid family leave is what workers need.

Don't Forget the Cake With 10 Candles Tomorrow

The first employment law initiative passed under the Clinton Administration, the Family & Medical Leave Act, turns 10 tomorrow. Signed by President Clinton in February, 1993 it was effective on August 5 of that same year. The Society of Human Resources Management marks the anniversary with a continuing initiative seeking clarity on some of the more troublesome provisions. See the story here. For more in depth information see the website of the FMLA Technical Corrections Coalition, a group of corporations seeking similar changes.