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I can’t imagine anything more exciting than having joined Littler earlier this year.  [Click here to read about that virtual love fest.]

But I have found a close second: the arrival of the American Bar Association’s summary of every FMLA case decided in 2018!

Yep, you read that correctly.  Every little scrumptious FMLA decision. 

About mid-February or so, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  [Those little ABA rascals kept it from me this year till March, but I finally found it today.] Although our little FMLA blog catches some of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes all FMLA decisions from this past year. This year’s report is as comprehensive as always — it summarizes 2018 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I encourage you to print it off and keep it by your side as a valuable FMLA resource.

My fellow gentlemen:

On this Valentine’s Day, I just saved your behind.

Leave the dozen roses and box of chocolates at the office. And no need to make a reservation at your favorite restaurant for two.

This year, give your significant other the gift that keeps on giving: the American Bar Association’s annual report of every FMLA decision from 2017.  If this won’t spice up your Valentine’s evening, I am confident nothing will.

Every February, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision issued in 2017.

Every. single. one. of. them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to Maria Audero, who spearheads the annual summary.

Happy reading!

When a manager learns that one of his employees is in the hospital for several days, that’s almost always enough information for the employer to have an inkling that the employee may need FMLA leave.

But one employer didn’t think so. And the penalty for its mistake was costly. Let me explain.

The Facts

Grace worked for the Center for Human Development (CHD). On a moment’s notice, she became hospitalized due to a mental health condition. Upon her admission to the hospital, Grace asked her son, Jim, to call CHD to report that she was in the hospital and unable to report to work.

Being the good son he was, Jim called CHD that same day.

And the next day.

And the day after that.

Not only did Jim talk to her mom’s direct supervisor . . . but his boss . . . and the boss’s boss. Each time, he made clear that his mom was ill, in the hospital and could not come to work.  After a few days, Jim shared that his mom could speak, though she was “unintelligible.”

When all was said and done, Jim had called in to report and provide updates on his mom no fewer than four times over the course of one week. At the same time, however, Candy, a supervisor who had taken one of his calls, got angry with Jim, telling him that it was “not acceptable for him to call CHD instead of his mother” and told him “not to call again.” Despite her admonition, Candy asked Jim no questions about Grace’s condition.

The next day, Candy informed CHD’s vice president of Human Resources, Carol, that Grace was hospitalized and unable to work. A few days later, Candy reported to Carol that Grace was a “no call/no show” when she failed to personally notify CHD of her continued absences.  Carol asked Candy no questions, not even something like, “Ummm, Candy, isn’t that the employee you mentioned was in the freaking hospital?” Nope. None of these questions apparently came to mind.

Despite knowing that Grace had been hospitalized, Carol [mind you, she’s the VP of HR, the grand poobah of all things HR] prepared a draft termination letter for signature by one of CHD’s executives. Notably, neither Candy nor Carol told the executive that Grace had been hospitalized, and that she very well still could be there.

As the story goes, when Grace came back a few days later looking for her job and with her doctor’s medical certification in hand, CHD told Grace that her employment had been terminated because she abandoned her job.

The Ruling

Whack!  That’s the sound of a swift smack down the jury gave the employer at trial. No doubt, the jury made quick work of Grace’s FMLA claims, finding that the employer grossly violated the FMLA when it refused to allow Grace’s son to report her absences on her behalf and then terminated Grace immediately after her time in the hospital and without inquiring further. It awarded her nearly $150,000 in back pay and benefits, plus her attorney’s fees. Boadi v. Center for Human Development (pdf)

The loss itself was only part of it. Because the court found that the employer willfully violated the FMLA, it awarded Grace liquidated damages, which doubled Grace’s back pay award. So, Grace gets another $150K.

Insights for Employers

There are plenty of golden nuggets in today’s lesson:

1.  Hey Employers, Your Managers Are Killing You. And there is one, simply reason why this is happening: You are not training your managers on their responsibilities under the FMLA.

I’ve never seen a case like this one call out — indeed, practically beg — employers to train managers on the FMLA. Interestingly, every time the court introduced a new manager in its sad story about Grace, it specifically commented that the manager was “not trained on the FMLA.” The court then used the lack of FMLA training to award double damages to the plaintiff. Why? The court put it simply:

The fact that [the decisionmaker and other managers] had little FMLA training is further evidence of CHD’s lack of good faith.

Heck, even the VP of HR was in clear need of FMLA training, since: 1) she was aware Grace had been in the hospital; and 2) still chose not to inquire further to determine whether Grace’s inpatient stay was the reason for her extended absence.

Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

2. Family members can report employee absences in limited situations like this one.  When an employee’s family member reports that your employee is in the hospital and “unintelligible” when communicating, first have some empathy. Then, recognize this situation as an unusual circumstance because the employee’s inpatient stay at the hospital was the reason they couldn’t reach you. This comes right out of the regulations at 29 CFR 825.303(a):

Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.

Of course, the employee is obligated to contact the employer when they are able to do so after the family member has provided notice. Here, Grace was hospitalized for an extended period of time due to a mental health condition. In these situations, it’s far better to exercise patience than to hit the termination button. Clearly, the jury thought so.

Also keep in mind: Where you have any doubt as to whether the FMLA may cover an absence, the regulations require the employer to inquire further to determine whether the FMLA covers the absence. Surely, this was the case here. The employer knew Grace had been hospitalized, so it can’t stick its head in the sand and presume that FMLA didn’t apply or that it had no obligation to ask some questions.  Candy should have asked questions of the son, and Carol should have asked Candy just as many. If Candy didn’t know,  she could have returned to the son and started over again until they were satisfied whether FMLA did or didn’t apply.  [Ahem, it did. ]

3.  Re-consider Your Termination Decision when You Realize You Have Fudged Up. The Court awarded double damages, in part, because the employer failed to reconsider its termination decision when the decisionmaker learned that Grace had been in the hospital, making it unlikely that she could have called in a timely manner from her hospital bed.

Sometimes, we simply have to swallow our pride and realize we made a mistake. Had the employer done so here, it would have drastically reduced its damages.

In fact, it likely would have avoided a lawsuit.

Poorly implemented FMLA policies and procedures are in the spotlight this week.  And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.

Their mistakes, however, are golden lessons for the rest of us.

Confusion Over How Much Maternity Leave is Provided

In Sad Employer Story No. 1, Bhavani sought leave to give birth to her child and to bond with the child. No sweat, said the employer, who had surely gone through this exercise before.  The employer maintained both an FMLA policy and a standalone “maternity leave policy,” which read (in part) as follows:

Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave.

At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.

Notably, these two policies were completely silent on whether FMLA leave and maternity leave ran concurrently or consecutively.

To make matters worse, the employer failed to provide Bhavani the critical FMLA Notice of Eligibility or Designation Notice, so she didn’t have a clue what was coming or going when it came to FMLA leave.

When Bhavani later was terminated when she did not return to work on time, she cried foul, claiming that the employer’s policies and lack of notice led her to believe she was entitled to additional leave. The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether Bhavani’s employer violated the FMLA when it declined to give her additional leave.  Rengan v. FX Direct (pdf)

Confusion Over How Much Notice an Employee Should Provide When Requesting FMLA Leave

In Sad Employer Story No. 2, Lisa injured her shoulder while falling through the hatch of a catamaran boat.

Ouch. That couldn’t have felt very good.

As a result, Lisa requested and was granted FMLA leave beginning in early July. On her leave of absence form, Lisa indicated that her return date would be July 31. Her physician later cleared her to return not on July 31, but on August 4.

In Lisa’s employee handbook, it stated:

If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.

But then it also mentioned this:

If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date.  (My emphasis, not the court’s.)

A bit confusing. In Lisa’s situation, the employer considered July 31 to be her last day of FMLA leave (since that’s the date she originally indicated). Therefore, when Lisa was a no-show on August 1, it considered her to have voluntarily resigned her employment. After all, that’s what the policy says, right?

Not so fast. The policy also states that Lisa has four business days to inform the employer of the need for FMLA leave. That’s practically a lifetime. So, when the employer terminated her employment without giving her up to four business days to comply, the court found that the employer potentially violated the FMLA. Perry v. Isle of Wight County  (pdf) My friend, Eric Meyer, has a good synopsis of the case here.

Insights for Employers

A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures:

  1. Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave. The FMLA regulations allow employers to run paid leave concurrently with FMLA, so do it.  And make it crystal clear in your policy.
  2. When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, it must provide the individual notices to the employee.
  3. Draft and maintain very clear call-in procedures, and ensure they are demanding. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” What kind of useless parameters are these? Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”  If you are inclined to be a bit more generous, consider cutting it back from the four business days allowed by Lisa’s employer. These lengthy reporting grace periods frustrate your ability to properly staff your operations, lead to misuse of FMLA and, as here, they create easy opportunities for you to violate them, resulting in expensive attorney’s fees and potential liability.

stupid boss commentThere may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut.

The latest edition involves Debby and her boss, Jason.

I can’t tell precisely what Debby did for her employer, Wells Fargo, but it’s safe to say she interacted with a number of Wells Fargo’s clients and had a sales quota. That’s enough background for this story because it is undisputed that clients began complaining extensively about Debby, and she fell miserably short of her sales goal. Nearly half way through the sales year, Debby had only met about 11% of her entire sales goal.

That’s not good.

As these stories go, shortly after being told that she was “off track” in nearly every work category, Debby took medical leave for five weeks due to a medical procedure performed on her neck. The time off did not rejuvenate Debby. Upon her return, her performance further deteriorated to the point that termination was the only option. Wells Fargo had all the ammo it needed — more client complaints, poor sales numbers and that fact that Debby simply wasn’t trying anymore.

Unfortunately for Wells Fargo, however, Debby’s boss snatched defeat from the hands of victory. In an email recommending Debbie’s termination, he outlined her performance issues but inexplicably added that Debbie’s termination “was justified because ‘Debby submits a request for medical leave.'”

Groan.

Last month, a court refused to dismiss Debby’s FMLA claims, finding that the boss’ email is evidence that she may have been terminated because she took FMLA leave. Stewart v. Wells Fargo (pdf)

Insights for Employers

Let’s not dwell on these facts any longer. Let’s move straight to the lessons learned, shall we?

1.  Employers, Your Front Line Managers Are Killing You.  For me, the most powerful line in this court case wasn’t the boss’ foolish email. Rather, it was his acknowledgment in his deposition that he was “not really familiar with FMLA leave” because he was “on the front line.”

Precisely.

Employers, your front line managers like the one here are ticking time bombs. Sure, they generally are very good people, and they mean well. But you also put them on the front lines with no FMLA training whatsoever. So, why are you surprised when your managers send emails like the one above?

Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

2.  Remember that similarly situated employees can sink your FMLA case. The court refused to dismiss Debby’s case for the additional reason that other employees also missed their sales goals and were not terminated like Debby. Before you hit the termination button, it is critical that you compare the employee at issue to those she will be compared to. Are others missing their sales mark or otherwise under-performing? How do you differentiate them? Call your employment counsel and strategize before you make the decision.

doctor's note with borderAn employee’s 12 weeks of FMLA leave has exhausted, and over the past several weeks, he’s provided you a series of vague doctor’s notes typically containing nothing more than a one-liner extending his medical leave of absence until his next appointment.

Sound familiar? Makes you want to scream, right?

What if I told you that, instead of screaming, you could lawfully terminate this employee?

Interested? Read on.

Facts

Joyce served as an Economic Support Specialist for Milwaukee County, Wisconsin. She was on a team responsible for providing public assistance to county’s citizens.  Her work included processing applications for benefits and answering phone calls. Not a terribly specialized position, and I’ll explain why that’s important below.

For several years, Joyce dealt with severe back pain and took FMLA leave from time to time as a result. In summer 2010, she began continuous FMLA leave, which exhausted on October 18.  On that day, Joyce asked for additional leave, and the County provided her another three weeks to return to work, or November 8.

Joyce did not return on November 8. She did, however, submit two doctor’s notes supporting her need for even more leave. One was dated November 3 and stated simply: “medical leave of absence until 11/17/10.” The second was dated November 12 and said only “medical leave of absence until 12/17/10.”

The notes – or even Joyce herself – said nothing more.

One week later, the County informed Joyce that it was contemplating terminating her employment, but before doing so, it invited her to a meeting to discuss her situation. It also invited her to bring “any documentation she wished to submit for consideration.” Joyce attended the meeting and again made clear she could not return to work.

The County terminated her employment about one week later. Joyce then found herself an attorney who apparently thinks vague doctor’s notes win ADA cases, and she sued.

The Ruling

The court dismissed Joyce’s case faster than it took her doctor to write a one-liner on that prescription pad doctor’s note.  Finding that attendance was an essential function of Joyce’s job, the court reaffirmed the basic principle that Joyce’s employer could expect her to report to work. Therefore, she could not enjoy the protection of the ADA [or, in this case, the Rehab Act, which is the public sector equivalent of the ADA].

In dismissing her claims, the court summed it up this way:

[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment.  Whitaker v. Wisconsin Dept. of Health Services (pdf)

Insights for Employers

Sweet justice! What a golden nugget for all the HR and leave professionals and in-house counsel out there who feel helpless when dealing with an employee whose “ADA leave” seemingly has no end.

So, what’s the practical effect of this decision?

1. Employers can be more aggressive when they receive vague doctor’s notes.  The best part of this court’s decision was not the smack down of this would-be disability discrimination claim (thought that was rather nice). Rather, the court laid out what it expected to find (at a minimum) in a doctor’s note supporting additional ADA leave:

  • Whether the employee is receiving treatment
  • The likely effectiveness of the treatment
  • The medical likelihood that leave would enable her to return to work regularly

This is useful guidance, and it will help us address critical questions when we’re trying to determine whether our employee will be able to return to work anytime soon.  But we need not stop here. In EEOC’s resource document on leave as a reasonable accommodation, the agency makes clear that employers may specifically ask the health care provider to respond to questions drafted by the employer and designed to enable the employer to understand: 1) the need for leave; 2) the amount and type of leave required; and 3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

If EEOC is inviting us to do this, and we now have an insightful court decision outlining additional information you can insist upon, why aren’t you implementing this in your own accommodation process? Call your employment counsel today [ahem, I know a guy…] to prepare correspondence and forms to use on these occasions.

2.  We still have to communicate with our employees.  Let’s be clear: this employer prevailed here not because the employee turned in two pathetic doctor’s notes. It ultimately won because it gave Joyce yet another chance to explain herself after she submitted the doctor’s notes.  Engaging employees like Joyce in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave, I ask the employer about all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues. The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

3.  When employees submit crappy doctor’s notes, you need not consider undue hardship.  Normally, I would encourage you also to assess the hardship that the employee’s absence has on your operations before you hit the termination button. However, this court case is a reminder that, when an employee submits vague, meaningless doctor’s notes that don’t provide the key information above, the employee is not a “qualified” individual protected by the ADA.

If you had to assess the hardship Joyce’s extended absence is creating, it might be difficult, since she holds a clerical position, the duties of which could be filled by a temp or assumed by other employees. Yet, we don’t even get to this undue hardship analysis because the vague doctor’s notes save us.

H/t to Kate McGovern Tornone for highlighting this case!

bullyI hate bullies.

Back in 4th grade, Sister Mary Demetria, OSF, told us that “hating” someone was a sin.

I’m convinced Sister never met a bully.

Forgive me, Father, for I have sinned. Cause, you see, whenever I read about a bully getting a good smack down, I get all warm and fuzzy inside.

Such is the story of Tim, a manager for Tyson Foods. Over the course of several years, Tim had all the makings of a bully: in 2010, he was disciplined for intimidating a subordinate; in 2011, he was disciplined for openly harassing another employee; in 2012, he again was admonished for threatening an employee with termination for their (legitimate) use of overtime.

What followed in 2013 was the last straw: according to multiple employees, Tim intimidated and was condescending toward others around him, he undermined a supervisor by calling him out in front of others, and otherwise acted unprofessionally toward his co-workers.

Upon considering Tim’s latest conduct, Tyson had enough and quickly terminated his employment. In this era where individuals tend not to take accountability for their actions, Tim filed suit, alleging that Tyson terminated him, in part, because he had just taken FMLA leave a few weeks earlier.

“Not so fast, bully,” said the court. Well, it didn’t really say that, but it would have been way cool if it had. Still, the court dismissed Tim’s FMLA retaliation claim in a New York minute, finding that there wasn’t a scintilla of evidence that Tyson was motivated by Tim’s FMLA use when it terminated his employment.  Shell v. Tyson Foods, Inc. (pdf)

Sweet justice!  As with every bully smack down, there always are lessons to be learned:

Insights for Employers

1. Don’t shy away from terminating an employee who has recently requested or taken FMLA leave. Employers often are gun shy about disciplining an employee while the employee is on FMLA leave and/or after they have requested leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Employees facing discipline or termination regularly use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. But don’t let their would-be FMLA shield cause you to act differently. In other words, carry on with disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave. In doing so, it often will be critical to show that you have engaged in progressive discipline with the employee before and after the employee requested and/or took FMLA leave.

Here, Tyson’s reasoning was sound.  For some length of time, Tim simply was awful to his co-workers and failed to meet Tyson’s reasonable expectations. This conduct continued through his eventual termination, despite the employer’s continued patience. In the end, this employee (and others like him) simply cannot show that the FMLA had anything whatsoever to do with the termination.

2. But Don’t Rush to Judgment. Where investigations into alleged misconduct are necessary, conduct them! Employers lose when the evidence shows a rush to judgment. See my other posts here and here on conducting lawful investigations where alleged misconduct is at issue.

3.  Similarly, don’t short circuit performance improvement plans (PIPs). If you utilize a PIP for an employee’s deficient performance, don’t accelerate the termination process simply because the employee has taken FMLA leave. Take the case of Sherena, a financial analyst, who was placed on a 60-day performance improvement plan and was told that her continued performance issues could result in termination. After being provided a mid-term review of her PIP at the 30-day mark, Sherena requested FMLA leave.  Rather than giving her a chance to take leave and then finish the PIP, the employer short-circuited the situation, deciding to terminate Sherena’s employment instead.  Not good, as it was clear that the employer did not intend to terminate her employment for her failure to meet the demands of the PIP prior to her taking leave.  Turner v. Florida Prepaid College Board

Beach-Party-VacationI always love a good social media FMLA smack down. It’s even better when the employer handles the situation in textbook fashion. Today’s installment offers both, while also providing a road map for employers when investigating suspected FMLA abuse.

Let me share the story of Rodney.

Rodney was the activity director for Accentia Health, a local long-term care facility, and in that role, he was responsible for overseeing a staff which decorated the facility for holidays and events, and oversaw outings, parties and recreation for patients. Not a bad gig, if you can find it.

Rodney also had a bum shoulder. He took 12 weeks of FMLA leave for shoulder surgery and recovery, but he still was not able to return to work. For good measure, his doctor recommended one more month off work, and Accentia happily obliged. They called the additional month a “non-FMLA” leave of absence. As the story goes, during the final days of FMLA leave and during the month of his “non-FMLA” leave, Rodney took multiple trips to Busch Gardens in Florida and to the island of St. Martin, posting photos of his escapades on social media along the way. Rodney’s treasure trove of Facebook photos consisted of his favorite Busch Garden holiday decorations, and photos and updates about his trip to St. Martin, including some photos of him on the beach, posing by a boat wreck, and swimming in the ocean — all at the very time he should have been recuperating.

Swimming in the ocean? That shoulder must have been feeling pretty darn good.

It’s not surprising, of course, that Rodney’s employer later terminated his employment after he posted these photos.  Also understandable was the court’s quick dismissal of Rodney’s FMLA claims. Indeed, who could have counseled Rodney to sue here, knowing that he had engaged in this behavior? Click here for the court’s take on Rodney’s Facebook photos and its quick dismissal of his FMLA claims: Jones v. Gulf Coast Health Care of Delaware d/b/a Accentia Health and Rehab of Tampa Bay (pdf)

Insights for Employers

The result of this case in favor of the employer is not surprising. What’s instructive to us, however, is how the employer handled Rodney’s situation to best defend itself against an FMLA claim:

1. No Rush to Judgment: When the employer learned of Rodney’s Facebook posts, it did not rush to judgment and terminate Rodney on the spot.  Rather, it conducted a complete investigation of the facts at issue. Specifically, it invited Rodney to discuss his leave of absence.  During the meeting, Rodney’s boss confronted him with the Facebook photos in search of an explanation.  When Rodney responded with silence, it supported the employer’s honest belief that he had abused FMLA leave.

For what it’s worth, I would have counseled the employer here to be even a bit more methodical in its investigation of Rodney’s conduct. Before confronting Rodney with the Facebook pics, I first would have addressed the following with him:

  • Confirm that he required additional leave through the present because he was unable to perform his job
  • Confirm with him the extent of his injuries that he believed prevented him from performing his job
  • Ask him to confirm that he understood the requirements of the FMLA policy and how seriously the employer took fraudulent use of leave
  • Confirm that he remained in the local area during his FMLA and non-FMLA leave (whether he lies or tells you the truth that he took trips out of town, you get a good answer for your investigation)
  • Disclose that you have received information indicating that he was out of town during his leave, and specifically, Busch Gardens and St. Martin
  • Show him (or explain to him) the Facebook entries and photos so that he can address them directly

Simply put, employers lose these “honest belief” FMLA cases when there is a rush to judgment. Don’t do it. Follow the script above.

2.  The Employer used its social media policy to its advantage: Notably, Accentia maintained a social media policy which stated, in part:  “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of [Accentia] or violates the HIPPA privacy law may result in disciplinary action up to and including termination.”

Then, it used this policy as a basis for terminating Rodney’s employment, since his Facebook entries were entirely inconsistent with the policy.  Makes complete sense. This case is a reminder that it is critical for employers to maintain an effective social media policy, which among other things, includes strong language to address FMLA abuse that arises in situations like these.

aba_logo_01.jpgThis is one of the most exciting days of the FMLA year for me. Literally, one of those Steve Martin “The phone books are here!” days.

Why?

Every mid-February or so, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Although our little FMLA blog here catches some of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision from 2015. This year’s report is as comprehensive as always — it summarizes 2015 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to attorneys Jim Paul, Melissa Pierre-Louis and Heidi Parker, who head up the ABA’s FMLA subcommittee.

Enjoy!

FMLA-CalendarEvery 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 leave in a 12-month period. Notably, this “12-month period” is defined by the employer. What happens when an employer fails to disclose the 12-month period in its FMLA policy? They may end up like the Illinois Department of Corrections (IDOC).

IDOC apparently maintained an FMLA policy, but it failed to inform employees how the 12-month FMLA period was defined. When that happens, the 12-month option that provides the most beneficial outcome for the employee is used. IDOC learned this the hard way. One of its employees, Mike, took and seemingly exhausted FMLA leave. He later was terminated for three unexcused absences.

Finding that IDOC did not inform employees of what it was using as the 12-month FMLA period, the court determined that the “most beneficial” outcome should be used for Mike, effectively earning him back two weeks of FMLA leave that he could have used in this instance. Caggiano v. Illinois Dept. of Corrections (pdf)

Ouch. That stings.

How Many Ways are There to Count to 12?

Let’s use IDOC’s loss as an opportunity to discuss what 12-month FMLA period you should use for your workforce.  The FMLA regulations allow employers to utilize any one of four different methods to calculate the amount of FMLA leave an employee uses within a 12-month period.  Per the regulations, an employer may choose any one of the following 12-month periods:

  1. The calendar year
  2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins
  4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave

Pros and Cons in Choosing a Particular 12-Month Period

Employers may select any one of these four counting methods, so long as the method is applied consistently and uniformly for all employees.  Once the employer chooses a particular 12-month period, however, it cannot change to another 12-month period without first giving all employees at least 60-days’ notice of the change.  29 CFR 825.200(d)(1)  As I referenced above, if the employer fails to select one of the above 12-month periods, or if the employer has changed the method but it is within the 60-day window, the employer must use the 12-month period that provides the most beneficial outcome to that employee.

Clearly, there are pros and cons with each of these four methods.  But one method stands out above the rest: the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

Let me explain.

Methods One and Two

The first two methods are materially the same in that they set a fixed point in time by which to start calculating FMLA leave.  Although these two options are by far the easiest to administer, they allow for employees to “stack” 12-week FMLA periods back to back, thereby potentially providing more leave than necessary.  “Stacking” means taking FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.

Take Jane, for example.  Under her employer’s “calendar year” method, Jane takes four weeks of FMLA leave the first time on February 1.   Later in November, she takes another eight weeks of leave, which takes her through the end of the calendar year.  In theory, beginning on January 1, Jane could utilize another 12 weeks of FMLA leave.  In this example, this method of calculation allows Jane a total of 20 consecutive weeks of FMLA leave.  (It could have been worse — Jane could have taken 12 weeks at the end of the year and another 12 at the beginning of the following calendar year, for a total of 24 consecutive workweeks of FMLA leave.)  For employers seeking a continuity of business operations, this unintended result might be a difficult pill to swallow.

Method Three

The third method is not entirely different from the two above, but it offers a marginally better balance between protecting the continuity of businesses operations and ease of administration. Under this method, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  From an administrative perspective, this is easier to understand:  the employee begins leave on February 1, so the employee’s leave year begins on February 1.  However, this method does not avoid the “stacking” conundrum identified above.  Here, employers cannot avoid a situation where an employee takes FMLA leave later in the FMLA leave year, which is followed consecutively by as many as 12 weeks taken at the beginning of the following FMLA year (on February 1).

Notably, under the FMLA regulations, employers must use this method when calculating leave for an employee who is caring for a covered servicemember with a serious injury or illness. 29 C.F.R. 825.200(f)

Method Four

The most common method (but clearly the most confusing) that employers use is referred to as the “rolling” method.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  Therefore, when calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

The regulations provide a fairly straightforward example of how the employer would calculate leave using this method:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

29 C.F.R. 825.200(c)

The Winner

When using the rolling calendar or look-back period, an employee’s FMLA leave remaining in his or her 12-week FMLA leave entitlement literally can change daily, since the employer must add days (or hours) used upon the 12-month anniversary of an FMLA absence.  Although this method can be confusing to administer (such as calculating the leave available from different FMLA dates for each employee, and to do so each time FMLA leave is requested), it is the only method available under the regulations to ensure that an employee will not take a block of FMLA leave for more than 12 consecutive weeks.  Implementing this method is an employer’s best defense against FMLA abuse, and it tends to save costs in the long run.  Moreover, it discourages employees’ use of extended periods of leave across consecutive 12-month periods. When balanced against the others, this method often is the best choice for employers.

Work with your employment counsel to ensure you’re using an FMLA year that meets your operational and business needs.

But REMEMBER!

Don’t make the same mistake IDOC did above.  Regardless of what 12-month FMLA period you choose, make sure it is clearly defined in your FMLA policy.