Benefits and Same Sex Marriage

Exactly two years after the landmark DOMA decision, the Supreme Court has ruled that the Constitution guarantees a nationwide right to same-sex marriages.   All states, including the District of Columbia, must now recognize these unions.

What does that mean for an employer?  Review your benefits plans to ensure you have accounted for this new ruling! The impact may differ from state to state with respect to benefits.  One note, regardless of where an employee lives, s/he will be entitled to take leave under FMLA to care for a legally married same - sex spouse.

DOMA Decision

Lower courts have begun to issue rulings based on the Supreme Court's June 26, 2013, Defense of Marriage Act (DOMA) decision, with two district courts recently extending the ruling's application.  In addition, the Department of Labor revised a fact sheet on qualifying reasons for leave under the Family and Medical Leave Act (FMLA), in response to the Supreme Court's historic decision this summer striking down Section 3 of DOMA.

FMLA Abuse and Employee Surveillance

An increasingly prevalent area of surveillance that the courts seem to be upholding is the hiring of private investigators to conduct surveillance on employees that are suspected of taking leave dishonestly under the Family Medical Leave Act.  While still a relatively new development, this is one in which the courts are, so far, siding with employers.  With that said, however, this is a very delicate topic as it deals with surveilling employees when they are not at work.  In most cases, there are heavy suspicions of the employee abusing their FMLA leave before any surveillance is conducted, and it is highly encouraged that employers seek legal counsel before considering this option.  (Virginia Business Law Blog)

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise any right given under FMLA.   And, it is one of the largest employee abuse areas for employers.   One of the bases upon which an employer can defeat an FMLA "interference" claim is obtaining supporting documentation/evidence by the employer that an employee did not, in fact, take leave for a purpose authorized under the FMLA. 

I personally had a case 4 years ago in which an employee was placed on FMLA.  A week later we found out that the employee was moonlighting for another company.  After careful investigation, I found that the employee was performing the same tasks for the second company that the employee was restricted (medical requirements) from performing for us, his primary employer.

Employer surveillance of employees outside the workplace is an extremely touchy subject.  And, there are confusing legal issues to tackle.

In the Seventh Circuit Court decision, Vail v. Raybestos, "employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave under the FMLA, but also in any situation where the information gained by surveillance may be used as evidence to support the employer's honest belief the employee is taking fraudulent leave."    Diana Vail received more than 33 days of approved leave for chronic migraines.  The company noticed a pattern in regards to her leave and engaged the services of an off-duty police sergeant to monitor her activities.  The employee was found working for her husbands business during peak times.  The court dismissed her claim for interference stating that the plaintiff must show she took leave "for the intended purpose of the leave."

In Colburn v. Parker Hannifin (1st Cir., 2005), the employee claimed to be too dizzy to drive to work, but was caught working out at the gym while on leave.  The court found that the employer's surveillance did not violate the employees FMLA leave.

Tillman v. Ohio Bell Telephone, (6th Cir., 2011).  This case is note-worthy in that the employer sent the surveillance footage to an outside medical consultant for analysis before it made its employment decision. The consultant issued a report of her findings in which she concluded that, in her professional opinion, Tillman's activities on his days off were inconsistent with the medical restrictions.

When presented with evidence of suspected FMLA abuse, you must first independently investigate the issue before taking any action.  Avoid any conduct that interferes with FMLA.  Validate the accuracy of your suspicion before taking an adverse action against the employee.  Secondly be sure that any surveillance does not go too far and invades the privacy of the employee or the employee family members.

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

Mother-Friendly Employers

While driving home I heard a radio commercial advertising Mother-Friendly Employers here in Texas.  We've come a long way.  Who would have thought that companies would advertise their support of breastfeeding in the workplace?  Or that a work-site might obtain "Mother-Friendly" designation?

The Texas House of Representatives passed HB 741 in early May.  HB 741 requires public employers, school districts, cities, counties and state agencies, to accommodate employees who need to express breast milk at the work place.  Under current law, working mothers who are hourly employees have federal protections in place for when they need to express milk in the workplace.  (The Federal Health Care Reform Bill, signed in March 2010, contained an amendment to the FLSA requiring employers to give breaks for nursing.)  However, salaried employees have no protections in state or federal law.  House Bill 741 seeks to close this loophole.

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

Flexible Work Arrangements - Where Are They Now?

In 2010 President Obama said making workplace rules flexible “isn’t” only a women’s issue.  "We know that companies with flexible work arrangements can actually have lower turnover and absenteeism and higher productivity," Obama told guests at a dinner for Fortune magazine's Most Powerful Women conference in 2010.  "This is not just a women's issue, or just a work-family balance issue.  It's an economic competitiveness issue."  The Obama administration is clearly on record as promoting flexibility.

Where are we now?

On February 29, 2012 Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (H.R. 4106, S. 2142), a bill that would provide employees with a statutory right to request flexible work terms and conditions.

This new legislation would authorize an employee to request from an employer a change in the terms or conditions of the employee’s employment.  To be eligible, the employee would have to work an average of at least 20 hours per week or a minimum of 1,000 hours per year.  This new bill would only apply to employers with more than 15 employees.

Under the proposed bill, a flexible work arrangement request from the employee must relate to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; or (4) the amount of notification the employee receives of work schedule assignments.

Upon receiving a request, an employer would be required to hold a meeting with the employee to discuss his or her application and provide a written decision regarding the application “within a reasonable period” after the meeting. If the application is rejected, the employer would be required to provide a reason for the denial. The employer would be permitted to propose an alternative change to the employee’s hours, times, place, and amount of notification of schedule assignments. If the employee is dissatisfied with this proposal and has another supervisor, the employee would have the right to have the other supervisor reconsider the alternate schedule.

Do flexible work arrangements work?

In 2006 the city of Houston promoted flextime as a way to ease the notoriously congested highways.  The "Flex in the City" program was successful.  It slashed workers' stress, boosting their performance and saving money.   The August 2010 Analysis of Alternative Work Schedules issued by the Texas Comptroller of Public Accounts stated that "AWS benefits retention efforts more than budgets.  Survey responses indicate that while some entities have seen savings from AWS, employee retention and satisfaction are the most common benefits.  AWS should be considered primarily as a means to recruit and retain employees."

Yes, there are challenges to Flexible Work Arrangements.  They may not work in some industries/companies.  But there are benefits.

Maternity Leave and Employer Requirements

There are no federal laws requiring a company to provide paid maternity leave. However, most employers are required to comply with FMLA as well as the Pregnancy Discrimination Act (PDA). If complications rise in the pregnancy that substantially “limit a major life activity,” the employer may need to review the Americans with Disabilities Act" as well.

Under the PDA, employers subject to Title VII of the Civil Rights Act of 1965 are prohibited from discriminating against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” (Employers who have 15 or more employees are subject to Title VII of the Civil Rights Act.) Under the law, an employer must treat a pregnant employee like any other employee on the basis of their ability, or inability, to do their job.

As an employer, you must provide the same accommodations for an expectant employee that you would for any employee unable to perform their regular duty. Under the PDA, you are required to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave. Remember, consistency in your practices is the key.

Let’s talk FMLA. When an employee becomes pregnant, and if the employee is eligible for FMLA leave, the employer must also consider the employees right to take leave under FMLA.

How about ADA and reasonable accommodation? A normal pregnancy is not considered a disability under the ADA. But if the woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under ADA. If so, the employee is entitled to reasonable accommodation to perform her job.

As always, check your respective state laws.

Keep communicating people.

Coleman v. Maryland Court of Appeals

Nineteen years ago President Bill Clinton signed into law the Family and Medical Leave Act (2/05/1993). This bill has continued to be a source of confusion and discussion since that time. As an employer, are you confused yet? Well, you’re about to become a bit more confused. Yes, FMLA is under attack once again.

Under FMLA, employers have to provide employees up to 12 weeks to recover from a serious medical condition. Well now the feds are saying that state agencies/colleges are exempt. What?

Daniel Coleman was an employee of the Maryland Court of Appeals. He requested leave under FMLA to care for his own serious medical condition and was fired. Of course he sued. The Supreme Court (in a ruling of 5 to 4), ruled that state agencies and state colleges can’t be sued by employees for violating the self-care provision of FMLA. A constitutional rule says “states, as sovereigns, are immune from suits for damages.” (I believe the term is sovereign immunity.) The only exception is in cases that involve unconstitutional treatment, including discrimination.

To bypass the sovereign immunity rule, and open states up to FMLA “self-care” lawsuits, Congress “would have to show that it passed the provision to protect individuals from a pattern of discrimination that was created as a result of state policies.”

Eight years ago, the state of Nevada made a similar argument. William Hibbs was fired after taking FMLA to care for his ailing wife. At that time the Supreme Court ruled that FMLA was enacted by Congress under its Fourteenth Amendment to address unconstitutional discrimination. And, it did not cover states in the area of family care.

Updated FMLA Forms Available

In case you missed it, the FMLA forms on the DOL website expired on 12/31/211. Finally, the DOL has issued new forms. There isn’t much of a change other than the new forms are good through February 28, 2015. The new forms don’t make reference to the proposed amendments to military family leave nor for GINA safe harbor language. The proposed changes:

1. Calculation: Companies would be required to track FMLA leave in the smallest increments the payroll systems use to track work time.
2. Physical impossibility provision: A delay in a worker’s reinstatement will only be permitted in the most limited circumstances. The DOL may change the rule that allows employer’s to delay a workers’ reinstatement from FMLA when it is physically impossible for the employee to return to work in the middle of his/her shift.
3. Military Leave: Major changes to provisions including; (a) Expanding caregiver leave to care for veterans discharged within the past 5 years; (b) Extending exigency leave to family members of regular armed forces; and, (c) Extending amount of time employee can take during a military family members “rest and recuperation” period.

Following up on GINA, The Equal Employment Opportunity Commission (EEOC) has suggested employers add the below language in forms when requesting health-related information from an employee. This will ensure that employers don't inadvertently obtain genetic information when requesting that healthcare provides complete certification forms.

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

To have your voice heard regarding the proposed changes to FMLA, the link is provided:

http://www.regulations.gov/#!home

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?

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

The Parental Bereavement Act of 2011

On July 13, Sen. Jon Tester (D-Montana) introduced a bill that would allow parents grieving the death of a child to receive up to 12 weeks of job protected time-off under FMLA. The proposed amendment to the Family Medical and Leave Act of 1993 will amend Section 102 (a)(1) by adding, at the end, the following new sub-paragraph (F) “Because of the death of a son or daughter.” Under this proposed amendment, the leave shall not be taken intermittently or on a reduced leave schedule unless so agreed to by both the employer and the employee. Additionally,the employee will be required to provide notice as is “reasonable” and “practical”. This is one of several legislative initiatives introduced to enlarge the scope of the FMLA. Under Tester's Parental Bereavement Act of 2011, the death of a child would be treated like other life-altering event, providing the parents time to grieve.

This recent proposed amendment follows on the heels of “Bonding Leave” for adoption or foster care under FMLA. Under “Bonding Leave” employees may take FMLA before the actual placement for adoption or foster care of a child, if an absence from work is required for the adoption or foster care to proceed. This encompasses, but is not limited to, counseling sessions, court appearances, meetings with attorneys, travel, etc.

WashingtonWatch.com provided a widget so that individuals can express their views on The Parental Bereavement Act of 2011. The tally will update automatically as visitors vote. The widget has been provided below and I encourage each of you to express your views on this bill.



In closing, grief is complicated. For a parent the grief is overwhelming and nothing can prepare a parent for its enormity or devastation. This grief can give way to a vast array of conflicting emotions and responses. The Parental Bereavement Act of 2011 provides parents with time to cope with such traumatic loss.