FMLA: "Eligibility" Ruling

Under the FMLA, an employee does not become eligible to take FMLA leave until such time that s/he has worked at least 1,250 hours and 12 months. However, according to the 11th Circuit (FL), being eligible to take leave is not the same as being eligible to request leave.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, submitted a request for FMLA leave. Prior to her one-year anniversary the employee was terminated. Pereda filed a two-count complaint alleging interference (count 1) and retaliation (count 2) under the FMLA. The district court held that because Pereda was not an eligible employee at the time she was terminated (she had not yet reached her one-year anniversary), she could not bring either claim under the FMLA.

The 11th Circuit Court had two issues to address: (1) Can the employee pursue a claim under FMLA and (2) was the employee protected by the statute?

Pereda argued that if the district court decision was allowed to stand, employees "will fear mentioning leave in anticipation of the birth of a child. Moreover, employees would cease to provide their employers with adequate notice of the impending absence in fear of retaliation."

To reach a decision the 11th Circuit had to determine whether the employee could be considered an "eligible employee" for the purposes of FMLA. The employer argued that the employee was not an "eligible employee" at the time she was terminated and therefore was not protected by the statute.

The 11th Circuit appeal: Whether the FMLA protects a pre-eligibility request for post-eligibility leave. The 11th Circuit answered that question in the affirmative.

The findings: The 11th Circuit determined that the eligibility "is determined" at the time the employee would have taken the leave. The employee would have been eligible for leave because she would have been employed for the full 12 months. "After examining the various elements of the FMLA regulatory scheme, such as the 30-day notice requirement and the DOL implementing regulations, we conclude that allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA."

As an employer I would want an employee to provide as much advance notice of FMLA leave as possible. This will allow me to make the necessary arrangements, to back-fill the position, etc., to ensure that the organization is not unduly impacted by the employees absence. What message do we send employees when we terminate an employee who gives advance notice of the need for FMLA?

DOL: Right to Know Rule Delayed

For the past two years the DOL has discussed revising its record keeping regulations under the FLSA. The revision? Requiring employers who classify an employee as exempt to prepare a written justification for the basis for the exemption. (The justification would further provide why an individual is classified as an employee or as an independent contractor and how their pay is computed.) This justification would then have to be provided to the employee and be subject to inspection by the Department of Labor. Many employers strongly disfavor this proposal.

Acting Wage and Hour Administrator Nancy Leppink called the Right to Know rule one of the Wage and Hour Division's priorities, stating "We're continuing to work on that regulation," and that "We're learning about what the issues are" from the Department's ongoing misclassification enforcement initiative. (Recent article in BNA's Daily Labor Report.)

The DOL continues to expand the number of jurisdictions and agencies with which it is collaborating to end employee misclassification. Recently the Colorado Department of Labor and Employment and the Louisiana Workforce Commission has joined the fray.

Employers don't have to worry about this particular issue just yet. It appears the DOL does not plan to take action on its Right To Know rules at least until January 20,2013.

DOL Update: Child Labor Regulations

The DOL has issued new regulations concerning child labor under the FLSA. The regulations are focused on the limitations as to both duties and work hours applicable to 14-15 and 16-17 year olds. The limitations are directed to those in the "non-agricultural" occupations. The regulations address in detail the types of machinery that minors are permitted to operate, as well as barred from operating, as part of their employment.

For additional department please view the DOL website.

EEOC: No Diploma Necessary (New Guidance)

The informal discussion letter that the EEOC issued in November 2011 raised a lot of questions and concerns. The EEOC (finally) released some additional guidance on when an employer may POTENTIALLY violate the ADA by requiring employee candidates to have a high school diploma.

According to the EEOC, "[t]here have been significant commentary and conjecture about the meaning and scope of the letter." To clarify the legality of requiring a high school diploma under the ADA, the EEOC has posted a series of questions and answers on its website. The EEOC explains that employers may continue to have the high school diploma requirements. However, the employer may have to allow candidates claiming to have a learning disability to "demonstrate qualification for the job in some other way." The EEOC further states that the employer is still permitted to hire the most qualified person for the job and does not have to give preference to an individual with the disability over someone who can perform the job better.

Proposed FMLA Regulations

The Department of Labor (last month) announced proposed changes to the FMLA. These proposed changes would impact regulations associated with Military Leave, Flight Crew FMLA Eligibility and the manner in which employers calculate increments of FMLA leave.

The proposed rule regarding employer calculations, if finalized, will require employers to calculate FMLA leave using the shortest increments they use to track time. Some of the key proposed changes include:

• Expands military caregiver leave to cover eligible employees whose family members are recent veterans with serious injury or illness;



• Allows FMLA military caregiver leave for eligible family members of veterans with serious injury or illness who were active members of the military (including National Guard and Reserves) within the past five years;



• Expands the definition of serious injury or illness for both current service members and veterans to include pre-existing conditions aggravated in the line of duty; and,



• Includes hours of service eligibility requirement for airline flight crew employees based on unique scheduling requirements of the airline industry.

On February 15th those proposed changes were published in the Federal Register which means that the public has 60 days (until April 16, 2012) to comment on them. I have provided the link to the Federal Register (below). But be prepared, it's a 61 page document.

Proposed changes can be found as follows:
Page 2 - D: Updates to the Military Family Leave Provisions
Page 3 - E: Amendments to Eligibility Criteria for Airline Flight Crewmembers and Flight Attendants.

http://www.fmlainsights.com/FMLA%20proposed%20regs%20Feb%202012.pdf

Probationary Employment Status

Probationary period. Introductory period. Trial period. No matter what you call it, the meaning is essentially the same. You have a new employee under scrutiny! (Personally I dislike the term "probationary." I recommend using "introductory." Some HR professionals, myself included, believe that there is a rationale that a probation period could imply that, once the "probation" period has been completed, some type of employee - employer relationship exists. )

There are no particular laws requiring employers to have an employee category identified as "probationary." Realistically, if the employer has an at-will employment relationship with its employees, the employer can terminate with or without cause (unless such decision is based on prohibited grounds). And yet, many employers have a time frame identified as a probationary period for new employees. Whether or not there is a benefit to having one, let's discuss the employer's purpose for the probationary period.

A probationary period allows a company to establish guidelines and performance expectations for a new employee and to determine if the employee will be granted continued employment. It allows the employer to answer the question: Is the individual suitable for the job? (Yes, there are those managers that use the probationary period to determine if THEY have made the right hiring decision.)

During the probationary period managers should continually evaluate the skills, progress and how well these individuals adjust to their cultural environment. The manager should foster a mutual understanding of expectations, standards of performance and ultimately the evaluation process. Remember to evaluate the employee's performance in accordance with applicable policies, procedures and contracts.

As an employer you should take the following steps for the new employee:

1. Provide continuing, ongoing feedback regarding performance.
2. Document the performance.
3. Provide the right training for their position.

In closing, another reason to use the term "introductory" is that probation can have another meaning. And, oftentimes, it’s not a pleasant one. The use of the term probationary period may relate to performance issues.

I'm going to step "off topic" here for just a minute. Wikipedia, please note. I take exception to your statement relating to employee probation that “Challenges or appeals to the human resource department by the worker are usually ineffective as human resource departments usually side with and support management.” No, we don't. HR professionals take the role of the mediator or negotiator. We consider what is in the best interest of the organization. Not the business, the manager, the owner or the employee. We are oftentimes between a rock and a hard place. Remember, we have to balance the needs of the organization, the employee and workplace legislation.

HIPAA

The Accountability Act of 1996 (HIPAA) requires that at least once every three years, each health plan as defined in the law, must notify covered individuals of the availability of the plan's Notice of Privacy Practices for Personal Health Information and how to obtain the notice. *Whew*

As an employer, ensure that you meet this requirement and distribute the notice to all covered employees (yes, even those on COBRA). If you are obligated under a Qualified Medical Child Support Order, or National Medical Support Order, ensure you provide a copy of the Privacy Notice to the custodial parent or legal guardian.

More posts coming soon!