To do list2.jpgIt’s 2014.  And I’m so cold, I can barely peck at the keyboard to type this post. Nevertheless, it’s time to get back to work in the New Year, which always is an ideal time to review and button up your FMLA practices.  Let’s face it: before we know it, six months will have passed and summer vacation will be luring us away from work. Will you really want to audit your FMLA practices then? Only if you’re me.

So here’s my Top Five “Fix it or Else” List when it comes to leave management in 2014. How many can you cross off your list by March? Come on, I triple dog dare you…

  1. Change your FMLA leave year to a rolling year measured “backwards.”  This is low hanging fruit. Employers can define their FMLA 12-month period in one of four ways: a calendar year, a fixed year, a look-forward period (from the time the employee first takes leave), or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.   You may have perfectly good business reasons for using something other than a rolling backwards year and, if you do, you can ignore this suggestion.  For the rest of you, use this opportunity to change your FMLA 12-month period to a rolling year measured backward! This method typically is the best choice for employers, as it avoids stacking 12-week FMLA periods back-to-back (which could occur under any of the three other methods). Keep in mind, though, that employers must provide employees with 60 days’ notice of any change to the FMLA 12-month period, and you arguably have to bargain the change with any union representing your employees.
  2. Conduct an FMLA audit before you run into trouble. How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant? Now, do it! As you prepare your 2014 budget, include funds for a review (with your favorite employment counsel) of all your leave policies, forms and practices.  As we were the first to report, DOL on-site audits are becoming the norm in the FMLA world, and I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices.  A small investment now will save you even more money down the road. Promise.
  3. Target intermittent leave abuse. Day in and day out, I help employers figure out how they can address suspicious intermittent leave situations. Employers often vow to do something about it, but fighting intermittent leave abuse can be tiresome and the results often are not immediate. But you can win at this! Use 2014 to employ targeted use of second/third opinions and re-certification, and use lawful means to engage the employee’s health care provider about the employee’s serious health condition and need for leave.  You also can address all of these tactics in your FMLA audit (see No. 2 above!).
  4. Rein in employees on “indefinite” leaves of absence. Remember Bob?  You recall him — he’s the guy who took FMLA leave nine months ago and has remained off work ever since. In 2014, address the “Bobs” in your workplace — those employees that have remained on leave so long that you may have even forgotten about them. And they continue on leave with no return in sight. At your earliest opportunity, find out: 1) what’s going on with the employee’s leave, 2) what medical condition keeps them off work, 3) whether you can identify a reasonable accommodation to help them return to work and, if they still need more leave, 4) make their physician identify an estimated date upon which they can return to work.  When they cannot identify an estimated date, consider what rights you have to terminate their employment.  As we have discussed before, courts regularly uphold an employer’s decision to terminate employment where the employee’s leave remains indefinite.  Work with your legal counsel to be more aggressive in this area in 2014.
  5. Train your peeps. You ask “Why?”  I say, “Why not?” Respectfully, you’d be foolish not to. Your front-line managers typically are the ones taking the phone calls and conversing with your employees, often at critical times when the employee reveals the need for leave. Whether it’s an off handed remark, or an ill-advised email, your manager’s response to the employee often creates your FMLA liability.  From the front-line supervisor to the top executive, managers must understand their responsibilities to effectively manage an employee with a medical condition. Properly training your managers on their responsibilities under the FMLA should become a regular part of your compliance efforts, as it will significantly reduce the risk of legal liability.

What’s left?  What are you working on in 2014 when it comes to leave management?

festivus.jpgMany years ago, on December 23, Frank Costanza introduced Festivus to us. Whether it was the Airing of Grievances, Feats of Strength, or the aluminum pole, yet another Seinfeld episode had us in stitches.

Although we introduced no similar creative holidays on the blog this year, we still hope we brought a chuckle as we covered an otherwise very serious topic for employers. Another Festivus miracle, indeed!

So, in honor of you — the weary HR professional, the overworked in-house counsel, and the pooped practitioner — I bring you this merry little jingle, sung to the melody of John Lennon’s “Happy Christmas”:

So this is Christmas
And what have you done
Another leave year over
And a new one just begun

And so this is a new leave year
I hope you have fun
With certs and re-certs
Your job’s nearly done

But here comes Jeff and Matthew
To certify their bad back
You better run for cover
Before the rest catch on and attack

A very merry leave year
And oodles of FMLA fun
Let’s hope you don’t need surveillance
To catch them on the run

And so happy leave year
Where physicians have your back
They’ll still charge 20 or 50
To give you chicken scratch

FMLA Abuse is over
If you want it
FMLA abuse is over
Now…

I look forward to covering anything and everything that is FMLA in 2014.  And sharing a few laughs along the way, too.  All my best for a very Merry Christmas, Happy Holidays, and a Happy New Leave Year!

In the meantime, tell me . . . when do the Feats of Strength begin?

webinar2.jpgThanks to those who attended my webinar last week with Matt Morris on “Conquering the FMLA Medical Certification Process: Best Practices for Employers.”

We covered a whole host of topics during the webinar:  How does an employer handle an employee who does not return medical certification?  Or one that is vague and ambiguous?  How should an employer respond to an employee who appears to be abusing FMLA leave (e.g., another employee rats him out, or the employee takes FMLA leave after a denied vacation request)?  How should an employer certify patterns of absenteeism or occasions when the employee’s absences exceed the frequency or duration on the certification?

  1. How should an Employer respond when an employee does not return medical certification?  The regulations tell us that employers can delay or deny leave if an employee does not return medical certification within 15 days.  But should we automatically deny leave?  As I explained in the webinar, communication is key: ideally, you should have a “tickler” in your system reminding you of certification deadlines so that you know when certification is due.  If certification is not returned, the best practice is to call the employee and follow up with a letter informing them of their oversight and giving them a new deadline to return the certification. (Make it a fairly tight one — I typically recommend seven days.) Also give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn’t turn it in on time.  In in the webinar and in this previous blog post, I provided some insight on the kinds of questions you can ask the employee to determine whether they have been diligent in obtaining certification.
  2. What if the employee’s absences exceed the frequency or duration indicated on the medical certification form?  As we discussed during our session, recertification is available if the employee’s absences substantially exceeds the estimate provided in the certification.  As I highlighted in a previous blog post, an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule.  Employers must be careful not to seek recertification when the employee simply ticks past the absence estimate.  The webinar covers this issue in great detail.
  3. When you are clarifying certification, how far can you push the health care provider for information?  As we discussed, the key is to clarify, not challenge.  So, the focus should be questions such as: “We want to understand what you meant by “as needed” and whether the condition affects [employee] from doing her job” OR “”Would you provide a better estimate than “leave as needed” and would you provide detail on why the condition makes it medically necessary for [employee] to miss work”?

Finally, as you may recall during the webinar, I made reference to an FMLA guide published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA. You can access the Guide here (pdf). What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process. HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.

Thanks again to those who attended the webinar. I look forward to your continued feedback on the issues we discussed.

2013VOTETHISBLAWG.jpgI am delighted and downright humbled to announce that our FMLA Insights blog has been selected for the third consecutive year as one of the Top 100 Legal Blogs of 2013 by the ABA Journal! In its 7th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name FMLA Insights among only seven labor and employment blogs receiving this honor.

We are touched by the many attorneys, HR professionals and other friends of the blog who nominated our blog for this honor. In its announcement, the ABA Journal published a snippet of one of our nominations, which was submitted by Johanna Ellison of the law firm Fogle Keller Purdy in Lexington, Kentucky:

I enjoy the fact that Jeff [Nowak] uses not just recent court decisions but also recent current events (such as the birth of the next heir to the British throne) to teach FMLA concepts. He’s also a very engaging writer; it’s a bright spot in my day when I receive a link to a new post.

Oh, Johanna, I’m blushing.  

Seriously though, thanks to all of you for your support and for following our little FMLA blog.  

By this point, I know I have asked for too many favors.  But I press my luck in asking one more time. Would you be willing to take a few seconds to vote for FMLA Insights as the very TOP blog of the Top 100? (Seriously, it takes mere seconds to vote.)  Complete a simple registration form and vote for us here.  You’ll find our blog located in the labor and employment section.

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other six employment blogs who made the list – they definitely are worth the read and your vote: Dan Schwartz’s Connecticut Employment Law Blog (who was named to the Blawg 100’s Hall of Fame), Molly DiBianca’s Delaware Employment Law Blog, Eric Meyer’s The Employer Handbook, Jon Hyman’s Ohio Employer’s Law Blog, Donna Ballman’s Screw You Guys, I’m Going Home, and Seyfarth Shaw’s Trading Secrets.

According to a recent CareerBuilder survey, nearly one-third (32 percent) of your employees have called in sick when they’re not actually sick.  Perhaps just as notable, 30 percent of your employees admit that they have reported to work despite actually being sick. The reason? So they can save their sick days for when they’re feeling well.

Instead of telling their supervisors they were feeling under the weather and can’t make into work, employees across America offered the most colorful excuses in 2013.  Here are some of my favorites from the CareerBuilder list:

  • Someone glued my doors and windows shut so I couldn’t leave the house to come to work.
  • A swarm of bees surrounded my vehicle and I couldn’t make it in.
  • The chemical in turkey made me fall asleep and I missed my shift.
  • I received a threatening phone call from the electric company and needed to report it to the FBI.
  • My fake eye was falling out of its socket.
  • I got lost and ended up in another state.
  • [And my personal favorite]: My false teeth flew out the window while driving down the highway.

Interestingly, the survey also highlighted employers’ attempts to combat leave abuse.  About 30 percent of employers have checked in on employees who have called in sick to make sure the excuse was legitimate. Of those employers who actually verified employees’ excuses over the past year:

  • 64 percent required a doctor’s note
  • 48 percent called the employee
  • 19 percent checked the employee’s social media posts
  • 17 percent had another employee call the sick employee, and
  • 15 percent drove past the employee’s house.

Insights for Employers

CareerBuilder forecasts that employees will call in sick far more often from December through February each year.  Many legitimately will be sick.  Others won’t.  So, as we approach the holidays and winter months, keep in mind my ‘ol tried and true tricks for warding off employee FMLA leave abuse:

  1. Is the Employee Requesting Leave That May Be Covered by FMLA?: First, you must determine whether the employee has even notified you of the need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary.  Of course, it’s never that easy. Employees are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; or d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.
  2. Require that Employees complete a written leave request form for all absences: Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system. And it tends to help your administration of employee leave.
  3. Enforce usual and customary call-in procedures:  Not nearly enough employers utilize this tool, even though they should!  Absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer’s call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.
  4. Prepare a list of probative questions you ask of all employees when they call in to report an absence:  As the employer, you have the right to know why your employee cannot report to work. So if you have concerns about their leave request, don’t hesitate to ask more probing questions about why they need leave! During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:
    – The specific reason for the absence [Is it just the sniffles, or is it something more?]
    – What duties of the job they cannot perform
    – Whether they will see a doctor for the injury/illness
    – Whether they have suffered from this condition before and previously taken leave for it and when?
    – When they first learned they would need to be absent
    – The expected return date (or time, if less than a day)
  5. Use medical certification and recertification to your advantage: We are going to discuss this in detail at our upcoming December 5 webinar, so be sure to register here!  Medical certification is one of the best tools to combat FMLA abuse. So, use it! Moreover, if this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option. Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays? Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately.  If you are concerned about a Monday/Friday pattern of absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.
  6. Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your favorite employment counsel [cheap, shameless plug] to ensure that your FMLA policy and procedures are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

In the meantime, my very best wishes for a Happy Thanksgiving!  Gobble, gobble!

Hat tip: Mark Toth, Manpower Employment blawg

How much is enough.jpgOne of the most difficult issues an HR professional or in-house employment counsel faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave required? What law applies and what are the obligations for an employer in this situation?

Despite the uncertainty of what additional leave the ADA obligates employers to provide, one general rule has always been clear — an employer is never required to provide an employee an indefinite leave of absence.

Never?  After a decision handed down by New York’s highest state court last month, even this general rule has been called into question.

The Facts and Court Ruling

Giuseppe, a bank executive for Intesa Sanpaolo, took leave for a number of medical issues, including major depression.  After he had been on leave for almost five months, Intesa contacted him to inquire whether he intended to return to work or abandon his position. Giuseppe’s attorney responded that Giuseppe:

has not at any time evinced or expressed an intention to ‘abandon his position.’ Rather, he has been sick and unable to work, with an uncertain prognosis and a return to work date that is indeterminate at this time.

Intesa responded by terminating Giuseppe’s employment.

When Giuseppe later brought suit aleging violations of New York state and New York City law, the employer appropriately argued that Giuseppe requested an indefinite leave, which of course is not a reasonable accommodation under any law.  Or is it?

In a blow to employers everywhere, the court held that NYC law shifted the burden of proof from to the employer to show that the accommodation requested by Giuseppe would impose an undue hardship on the bank.  In other words, at least in New York City, there is no accommodation — indefinite leave or otherwise — that is categorically excluded as a reasonable accommodation under the NYC law.  In refusing to dismiss the case, the court erased a bright-line rule that an indefinite leave of absence is not required and replaced it with a more obscure standard that indefinite leave will be required unless the employer can show either: 1) that the employee could not, with reasonable accommodation, satisfy the essential functions of the job; or 2) that the accommodation would result in an undue hardship on the company.  Romanello v. Intesa Sanpaolo (pdf)

Insights for Employers 

Giuseppe’s case should be an eye opener for employers.  At a minimum, it reminds us of our obligation to keep the interactive process alive and to establish undue hardship earlier in the discussion.  Intesa would have been in better shape if it had adhered to a few key principles:

  1. Engage your employee in the interactive process.  Intesa started the conversation off right by engaging the employee about his return to work.  But after learning that Giuseppe’s prognosis was uncertain, it ended the conversation. Not a good move, since there is plenty more to find out and discuss: What limitations does the employee have? What functions can he/can’t he perform? Are there any alternative modifications we can make to his job to help him get back to work? Have we discussed restructuring his position or temporarily relocating the employee to an open position in which he is qualified (until he’s able to return to his original position)?  Also, employers should require that their employee provide a report from their treating physician responding to these inquiries.
  2. Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations?  If it’s not impacting your operations, that should be a key factor in granting additional leave.  However, if it is impacting operations, you want to memorialize this earlier in the process.  In Intesa’s case, Giuseppe was an executive.  Therefore, it likely would not have been difficult to establish that his continued and “indeterminate” absence was wreaking havoc on the bank’s operations — for example, projects likely were being pushed off, decisions were being made by less capable employees, customer service was adversely affected by the downgrade in service, other managers were required to take on more work.  See my list of “undue hardship” questions to consider in one of my previous posts.  Once you have conducted this analysis, tell the employee about it.  Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment so that you can better assess whether leave can be provided as a reasonable accommodation.  That’s what the employer did in a previous situation I wrote about, and the court endorsed the employer’s actions.
  3. Regardless of what state you’re in, you should maintain the same approach.  This case serves as a reminder that, depending on where your business is located, state or local law may exact even more stringent requirements than the ADA. However, your approach should remain the same, regardless of where you are. Communicate with your employee, engage them in the interactive process, and identify hardships early on so you can articulate them to your employee and make a more reasoned decision.

Kris was forced to endure the unthinkable: her daughter had just become the victim of a sexual assault.

In the weeks that followed, Kris alerted her employer of the assault and the care her daughter would require in the time ahead.  Kris suffered too.  As her doctor would later report, she had crying spells, a lack of energy and an inability to focus or concentrate.

To complicate matters further, Kris also had fairly significant performance problems in her job. From an HR standpoint, the timing couldn’t have been worse. Kris had been counseled for months that she could not work unauthorized overtime, and in the months leading up to the assault, she had been repeatedly counseled for her poor time management, and lack of initiative, detail and follow through.

Shortly after the assult, two things occurred that are relevant here: 1) Kris began bringing her daughter to work with her every day; and 2) Kris’ employer had reason to believe she had turned in inaccurate timesheets and concealed unauthorized OT.  As a result, Kris was suspended.

Shall I complicate matters even further?  Two additional facts about Kris’ situation: 1) When Kris brought her daughter to work, her employer rightfully was concerned.  But her boss allegedly told Kris that she had to choose between caring for her daughter or keeping her job; and 2) in conjunction with her formal disciplinary hearing, her employer refused to consider Kris’ written “rebuttal” to the disciplinary charges calling for her termination.

As the story goes, Kris was terminated.  An FMLA lawsuit ensued, and the court found that there was enough evidence based on the above for a jury to find that Kris’ employer interfered with her FMLA rights and retaliated against her exercising those rights.  Nelson v. Clermont Cnty. Veterans Service Cmmn. (pdf)

Insights for Employers

Deep breath.  There are plenty of takeaways here for employers:

  1. Courts continue to loosen the standards of a serious health condition.  I don’t mean to downplay how difficult the ordeal must have been for Kris, but what was her serious health condition requiring FMLA leave?  According to her doctor, it consisted of crying spells and her inability to focus or concentrate.  These symptoms alone were enough for the court here to presume that Kris suffered from a serious health condition entitling her to FMLA leave.  This finding sends a message to employers that courts are focusing far less on the actual definition of a serious health condition and more on the FMLA interference and retaliation claims themselves.  Be warned.
  2. Note to managers, supervisors, owners, HR professionals and anyone else in a position to effect a personnel decision: Stop saying stupid stuff! Did Kris’ boss have the right to be concerned when she showed up to work every day with her daughter in tow? Absolutely. But his reaction created liability for the employer. I’ve detailed all too often stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made follish remarks in conjunction with a termination decision.  Don’t do it, and train your managers ans supervisors to do the same.  This case serves as yet another example of how quickly a court will send a case to a jury as a result of one indiscreet comment.
  3. Due process must exist for all employees. Do you know what juries detest? Employers who don’t allow their employees a chance to be heard.  Here, the employer claimed that it had an “honest belief” that Kris was engaging in timecard fraud. That argument may have held up had the employer actually given the employee a chance to fully defend herself. But because it refused to entertain Kris’ “rebuttal” submission, the court determined that her employer could not rely on the “honest belief” defense. Ouch. Let’s be clear — where termination is at issue, employers have every reason to bend over backwards in allowing the employee to explain her side of the story. Constitutional due process may not apply for all, but employers still should strive for it.  When the employer refused to hear the employee out here, it paid the price. (Keep in mind a previous post where I explain the importance of a complete and exhaustive investigation.)
  4. Be empathetic. I am not suggesting that we allow an employee like Kris to use a tragic personal situation as a shield against any and all discipline (including termination), but in a situation like this one, it’s all the more critical to practice patience, compassion and concern.  I didn’t sense any of the above when reading this court case, and I wonder if the court felt the same in refusing to dismiss these FMLA claims against the employer. An intangible, for sure, but judges are human, too, and these intangibles can impact whether a case is dismissed or not.
  5. Retaliation is a scary predicament for employers. In this case, Kris also complained that the employer “overloaded” her with work upon her return from FMLA leave.  However, the court’s decision contains scant details of what the overload actually consisted of.  Yet, the court noted the overload as a factor in refusing to dismiss the case.  That’s bothersome to me.  If work given to an employee is contained within her job description, courts should not act as a super-personnel department in second guessing the situation. Nevertheless, the court did so here.  The result is that employers must be mindful not to “load up” on any employee returning from FMLA leave.

Sick note.jpgIt’s webinar time! 

FMLA Medical certification is designed to help employers better understand an employee’s medical condition and their need for time off from work. So, why does such a helpful tool tend to create angst, confusion and frustration within the employer community?

Let’s tackle medical certification head on! Please join us on Thursday, December 5, 2013 (12:00 – 1:15p.m. central time) for “Conquering the FMLA Medical Certification Process: Best Practices for Employers.” I will be joined by my friend and fellow FMLA nerd, Matt Morris, Vice President, FMLASource, who promises (along with me) to keep cheesy jokes to no more than two during our session.

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?!

Overview of the Webinar

In this complimentary webinar, Matt and I will cover FMLA medical certification in detail and employ case studies throughout to help employers deal with the most confusing and maddening medical certification conundrums.

To heck with the basics about medical certification.  We’re going to dig into some difficult issues. Using real life situations from our own experience in dealing with the FMLA, we will cover topics such as:

  • Common employer questions and missteps in the medical certification process
  • Best practices for employers when an employee fails to return medical certification
  • Incomplete or Confusing Certification – Does the Employer Trash it and start over
  • Fighting the “Friday-Monday Leave Act” – how employers should use recertification when they see a pattern of misuse or suspect FMLA abuse
  • Managing the second/third opinion process

We look forward to your participation.

Q: We have an exempt, managerial employee who in this past year took all 12 weeks of FMLA leave, and six additional weeks of unpaid leave.  He also was intermittently absent for digestive problems to the tune of about four weeks.  We’re now in a new FMLA year and he is requesting FMLA leave again. Is he even eligible for FMLA leave since he didn’t work 1,250 hours?

A: Exempt employees pose a particular dilemma for employers under the FMLA because the FMLA regulations effectively presume that they always are eligible for FMLA leave, at least from an “hours worked” standpoint, and the employer has the burden to prove otherwise.  Keep this key provision in mind from the regulations (at 29 C.F.R. 825.110(c)(3)):

In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked . . . the employer has the burden of showing that the employee has not worked the requisite hours.  (My italics, not DOL’s)

Very few employers maintain hours worked for their exempt employees.  So, it may be exceedingly difficult to establish that the employee above has not worked the requisite 1,250 hours required by the FMLA.  Using this employee as an example, let’s assume he typically would have worked around 1900 hours for the year (~48 weeks x 40 hours/wk).  He took 22 weeks of leave in the previous FMLA 12 months, which accounts for about 880 hours (22 weeks x 40 hours/wk).  1900 – 880 = 1020 hours worked  

This falls a fair amount short of the requisite 1,250 hours required under the FMLA.  Does this simple math prove that this exempt employee is not eligible for FMLA leave?  Not yet.  Check out my tips below.

This FMLA regulation is particularly difficult to apply to school teachers.  A recent case, McArdle v. Town of Dracult/Dracult Public Schools (pdf), highlights this issue.  Here, a middle school teacher was going through a divorce, which caused an onset of depression and anxiety.  As a result, he worked about 660 hours during one school year.  When he sought FMLA leave the following school year, his school district said “No soup for you,” and denied his FMLA leave (eventually leading to his termination).  The employee later filed an FMLA interference claim.

The district’s clever attorneys argued that, even taking into account the number of hours the employee graded papers and wrote journal articles outside of regular work hours, it was entirely implausible that the teacher worked anywhere close to 1,250 hours.  The court agreed with the clever attorneys and dismissed the employee’s FMLA claims.

Insights for Employers

A couple of things to keep in mind when it comes to employee eligibility for FMLA leave:

  1. Where an exempt employee’s eligibility for FMLA leave is in question, keep in mind that employers must clearly demonstrate the employee did not work 1,250 hours.  In the example of our employee in the question posed above, can you show, for instance, that the employee regularly works a typical 40-hour a week schedule in the office and then performs little or no work outside regular work hours?  Can you show that he never sends or reviews work email outside work hours?  Or that he never uses his cell phone for work after hours?  Is your exempt employee covered by a collective bargaining agreement or other employment agreement that sets out hours worked?  Does your employee waste oodles of useless time blogging about topics like medical leave? [Bite your tongue!] These questions and others like it are helpful to better assess the total hours worked by your employee.
  2. Remember that eligibility is tested every time the employee requests leave for a “different FMLA-qualifying reason.”  In other words, if the reason for leave is the same and the employee previously was eligible within the same FMLA year, the employee is entitled to take leave in this instance.  However, if the employee requests leave for a new qualifying reason in the same FMLA year, or if it’s for the same reason within a new FMLA year, the employer should re-test eligibility.  See 29 C.F.R. 825.300(b).

Who ever said FMLA was boring?

Linette Williams-Grant had a week worthy of Judith Viorst’s classic children’s story Alexander and the Terrible, Horrible, No Good, Very Bad Day, which (as an aside) is one of my all time favorites to read to my young children, particularly after a bad day.

How bad was Linette’s week?  It started with her employer’s surveilance of her activities and ended with her own minister confirming that she had been taking FMLA leave once each week to attend a class at church that had nothing to do with her apparent medical condition.

It’s not that Linette didn’t bring this on herself, but her tale still is a sad one.  Yet, it proves to be good fodder for employers considering whether to conduct an investigation into suspected FMLA abuse.

The Facts

Here’s the quick story: Linette worked for Wisconsin Bell as a telecommunications specialist, which largely is a sedentary position.  She also suffered from a host of medical issues: back pain, hip pain, osteoarthritis, radiculopathy, anxiety, panic disorder and depression.  You name it, and it sounds like Linette had it.  These conditions apparently were particularly difficult during prolonged periods of standing or sitting.  According to her doctor, Linette was unable to work when these conditions flared up, so he placed her on a generous intermittent FMLA leave cycle. In short, when she had these conditions, she couldn’t work.

For years, Linette’s FMLA leave didn’t garner too much attention until her supervisor noticed this: Linette would stop calling in sick whenever she had exhausted her annual FMLA allotment, and she would resume calling in sick and requesting FMLA leave after her annual FMLA allotment was replenished. Interestingly, her supervisor also learned that Linette would often check in to determine when her annual FMLA allotment would replenish.  The employer chose not to take action now, but rather, it studied Linette’s attendance patterns for about six months.  In those six months, Wisconsin Bell found that Linette would often use FMLA leave in conjunction with days off or on a weekend (when she was scheduled to work).

At that point, Ma Bell felt she had enough to ratchet up the review.  As a result, it conducted surveilance on Linette’s activities on two separate days about one month apart.  On the first occasion, she traveled to her church for one hour to “receive prayer,” as Linette would later explain.  (A quick search of a local blog also uncovered that Linette had been attending weekly classes there at the same time she should have been at work.)  On the second occasion, Linette traveled two hours from her home to a vacation home where she spent the day.

The Investigation

After surveiling her, Wisonsin Bell confronted Linette with the video surveilance.  When the video showed her walking into the church building, Linette denied any affiliation with the church or that she attended classes there.  However, after being confronted with the blog entry, she then acknowledged that she went there on one occasion to “receive prayer.” As to the video of her trip to the vacation home, Linette claimed she “had no memory” of the trip, which was just a few weeks earlier. [Huh?]

After the investigatory meeting with Linette, her employer was convinced it needed to close the loop on Linette’s church meeting, so it went right to the source: her minister.  Linette’s pastor sung like a church canary, as he eagerly confirmed that Linette had been attending classes there every week for the past three months — all at a time when she should have been at work. It turns out that Linette called off sick or used FMLA leave on these occasions. [Me thinks the pastor did not realize he was unwittingly ratting out one in his own flock, but that’s beside the point.]

Insights for Employers

The dismissal of Linette’s FMLA lawsuit was a foregone conclusion.  Indeed, the court quickly disposed of her FMLA interference and retaliation claims, finding that Ma Bell clearly had an honest suspicion or belief that she had abused FMLA leave on several occasions, thereby supporting her termination.  (You can access the Williams-Grant v. Wis. Bell case here.)  We’ve discussed this concept before, and my friend Jon Hyman covered it in another recent case as well.

Let’s keep in mind, however, that the dismissal was set up by the employer’s great investigatory work which, in turn, is a lesson for the rest of us:

  1. Take the time to investigate.  When Ma Bell noticed the pattern of Linette’s suspicious leave activity, it didn’t react rashly.  Rather, it took the next several months to study Linette’s leave requests and patterns.  This patience paid off — it further supported the employer’s belief that Linette was abusing leave, and it served as the foundation for surveilance, which ultimately carried the day for the employer.
  2. Don’t be afraid to challenge all that is sacred.  I can only imagine those Catholic nuns who taught me as a young kid are rolling over in their graves, but when an employee seeks FMLA leave to go to church, this still feels and smells like FMLA abuse.  Of course, employers should be mindful that a meeting at church could conceivably be FMLA-related (e.g., for treatment, perhaps?), but in this instance, it didn’t take much to tell it was a cover up.  Bottom line: even if the reason given by the employee involves going to church (or a similar faith-filled commitment), it doesn’t automatically mean the issue is off limits to some level of skepticism.
  3. But be mindful of calling the Pastor.  Did anyone think that the call to the Pastor might have been a bit too much, or like me, that it was a potential O.J. Simpson moment [think: “If the glove don’t fit, you must acquit.”]?  There clearly is a risk in calling someone like the employee’s Pastor in this situation. They might be unwilling to provide any information or be reluctant to talk.  In an effort to protect their own, they may actually give you exactly what you don’t want to hear.  There isn’t necessarily a right or wrong answer here, but be careful of the paths you head down in an investigation. Based on the video surveilance and Linette’s apparent blog activity, the employer arguably had enough evidence to support an “honest belief” defense.  Of course, the Pastor’s admission sealed the deal, but it also could have muddied the waters.
  4. In the investigative stage, seek admissions one by one to bolster your case.  I’ve talked about this before, but I liked the way the employer first sought out the employee’s story, then showed her the video after she was not cooperative, then showed her the damning blog post after she continued to cover up her story.  This methodical approach was key to tying the employee up in a web of lies that a court easily understood and bought into later on.  Good work.

In all, a solid decision for employers with some great guidance for the rest of us in the employer community.

As for Linette’s bad day, just as Alexander proclaimed on his terrible, horrible, no good, very bad day: they say some days are like that . . . even in Australia!