Category Archives: Interference

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Use The "Rolling" Method to Calculate FMLA Leave! This Employer Learned the Hard Way

Every once in awhile, I find myself counseling an employer with either no FMLA policy or one completely lacking any meaningful details. Often, these policies fail to include key provisions to protect against liability. Take, for instance, the FMLA 12-month period. As employers are aware, an otherwise eligible employee is entitled to 12 weeks of FMLA … Continue Reading

Employee Tells a Co-Worker That He Plans to Misuse FMLA Leave. Court Says It's OK to Demote 'Em!

Keith was a manager for Costco. By all accounts, he wasn’t a very good employee.  The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.  Consequently, he was placed on a performance improvement plan. Shortly after receiving the PIP, Keith told a subordinate that he planned to take FMLA leave “to secure his managerial rate … Continue Reading

When a Manager Makes Even One Stupid Comment after an FMLA Request, the Employer Pays the Price

How would you like to work alongside Jim, who engages in the following behavior: He makes a habit of telling co-workers what they are doing wrong, using a degrading tone of voice, and instigates arguments when doing so.  Jim regularly uses a belligerent tone of voice with co-workers. When his supervisor tells him to act more … Continue Reading

A Cruise Aboard the Love Boat is Not Protected by the FMLA, Even When the Doc Says It's a Good Idea

This post has nothing to do with Netflix and its new, generous parental leave policy.  Or GOP presidential candidate Carly Fiorina’s latest position on paid leave. Sorry to disappoint. But it does involve an exotic boat cruise. And of course, the FMLA. Tantalizing? Jump aboard the Love Boat to find out… The Facts Lucy worked for the State … Continue Reading

FMLA FAQ: If Your Employee Checks into the Hospital After Midnight, Is It an "Overnight Stay" under the FMLA?

Q: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight.  He spent most of the day in the hospital and was discharged later that same day. … Continue Reading

How Fowl! Is An Employee's Text and His Girlfriend's Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast...

This one just smells fowl.  Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s … Continue Reading

Employer's Lack of FMLA Compliance in Handling FMLA Leave Request is a Lesson for the Rest of Us

Want a glimpse into a world where an employer fails to maintain a legally compliant leave management process?  Let me warn you — what you are about to read is not pretty and not for the faint of heart. The Facts Rachna was a resident physician at St. Vincent Health Center.  She also had a … Continue Reading

Now This is a Headache! Employee Terminated for Migraine Headaches Can Advance FMLA Claim

In the cold, sadistic world that is the FMLA, the Department of Labor tells us that ordinary, run-of-the-mill headaches (a/k/a “non-migraine” headaches) are not covered by the FMLA.  Migraine headaches, on the other hand, are covered. When I try to explain the difference in FMLA training sessions for employers, they often look at me like … Continue Reading

Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead

Ena Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp.  She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of … Continue Reading

FMLA FAQ: Can an Employer Force an Employee on FMLA Leave When the Employee Wants to Continue to Work?

Q: This week, one of our employees professed her love to one of her co-workers (who is married) and announced to everyone that they had been dating.  The problem is — it’s not true.  When questioned about it, she continued to insist that she and her colleague had been dating despite clear evidence to the … Continue Reading

FMLA FAQ: Can an Employer Designate FMLA Leave When an Employee Refuses to Provide Medical Certification?

I received a ton of feedback last week in response to my post about whether an employee can decline FMLA leave even though the absence qualifies under the Act. One question, in particular, was thrown at me repeatedly, and it went something like this: In our workplace, when an employee doesn’t want to take FMLA … Continue Reading

When an Employee Returns from FMLA Leave, What Does Same or Equivalent Position Actually Mean?

Do you know what’s particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!] The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.   Returning an employee to the same position is easy enough to grasp.  The same is the same … Continue Reading

Employee Fired for Absences Exceeding his Certification Can Raise a Viable FMLA Claim

Have you ever made a rash decision that you wish you could take back the second you made it? One employer must feel that way right about now. Last week, a federal court refused to dismiss FMLA claims made against the employer by an employee who was terminated for exceeding the number of “episodes” of … Continue Reading

DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe. A water bottling company recently learned this the hard way. Peter Lyle was a route driver for “O Premium Waters,” a company that provided bottled water.  In December 2009, Peter took FMLA leave, which was approved by the … Continue Reading

Employee's Lack of Diligence in Obtaining Timely Medical Certification Destroys Her FMLA Claim

As a management side attorney, I love when FMLA cases provide real, practical takeaways for employers that help them better administer FMLA leave.  Yesterday was one of those days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith … Continue Reading

Bad Timing: Can an Employer Terminate an Employee Shortly After Requesting FMLA Leave?

As a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee.  Often enough, the situation goes something like this: My operations people want to terminate Fred.  He has flown off the handle one too many times, and now, we think we caught him misreporting his time … Continue Reading

"No Soup for You!" If An Employee Doesn't Turn in Medical Certification, FMLA Leave is Not Protected

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?  Here’s a real life application of this question:  Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she … Continue Reading
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