American Bar Association

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!

If you have any interest in vastly improving your FMLA and ADA mojo, here are three can’t miss resources you need to make part of your professional reading and education each spring:

aba_logo_01.jpg1.  Review the ABA’s Report of 2016 FMLA Cases.  Every February, 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.  Could you imagine anything more scintillating?  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 from 2016. Seriously, every 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 Jim Paul and Maria Audero, who spearhead the annual summary.

2.  Attend NELI’s ADA & FMLA Compliance Update: For nearly 40 years, the National Employment Law Institute (NELI) has been the national leader in training professionals of all kinds in the ADA and FMLA (and in employment law generally).  NELI’s two-day ADA and FMLA Compliance Update is an event you should not miss.  Really, I cannot say enough about NELI — they are the best of the best in hosting employment-related seminars for employers and management side attorneys.

neli.JPGThe ADA & FMLA Compliance seminars are held in April in San Francisco (April 6-7), Washington, DC (April 13-14) and Chicago (April 20-21).  This year’s seminar information can be accessed on NELI’s website here or in its seminar brochure (pdf). Not to scare you away, but I will be presenting on the ADA at the Washington, DC session.  More importantly, I will be performing on stage with David Fram, who (in my humble opinion) is the single best presenter on ADA issues in the history of the universe. Don’t believe me? Come find out. You won’t be disappointed.

NELI attendees also receive a binder of the very best substantive materials in the ADA and FMLA areas. There is no resource I keep closer to my side throughout the year.

3.  Head on Over to DMEC’s ADA & FMLA Compliance Conference:  You can’t do one without the other. Each year, the Disability Management Employer Coalition sponsors three days of FMLA and ADA goodness!  You leave there eating, drinking and sleeping these two very special laws, and let me tell you — that thought is enough to give me goosebumps.

DMECDMEC has put together another gem of a compliance conference this spring.  At this year’s conference, which will be held May 1-3 in Minneapolis, I am delighted to co-present with my good friend, Marti Cardi, Vice President, Product Compliance at Matrix Absence Management.  Marti and I will in one hour highlight the key FMLA cases over the previous year and offer our insight on how they will impact employers.

See you in April. And May.

HallofFame200pxV3As a young tyke growing up on the South Side of Chicago, I regularly reminded my mom and dad that when I grew up, I planned to be the editor of the Chicago Tribune and a second baseman for a major league baseball team, right before I became the first American Pope.

Foolish as I was, I didn’t lack confidence. Can you tell?

As you might have predicted, I fell woefully short of my three rather ambitious goals above.  No sweat, cause little did I know at the time that I would reach even greater heights — some 30 years later, in 2016, I would be named to the ABA Journal‘s Blogger’s Hall of Fame!

Seriously, did you even know something like the Blogger’s Hall of Fame actually existed? Surely not my mom who, with an authentic Catholic soul, is still holding out hope I might rekindle that ambition for the Papacy!

That was far too long an intro to announce that, for the 6th straight year, our FMLA Insights blog has been selected as one of the Top 100 Legal Blogs of 2016 by the ABA Journal! In its 10th Annual ABA Journal Blawg 100, we were only one of seven employment blogs to receive the honor.

I’m even more excited to announce (as forecasted above) that our blog was named to ABA Journal’s Hall of Fame!  Though the honor includes no plaque in Cooperstown and no rambling acceptance speech, I am humbled by the fact that this tiny little FMLA blog has caught the attention of the finest attorneys and HR and leave professionals over the years, and that so many of you have come to rely on my advice when it comes to all things FMLA. I am extremely grateful for your support.

Despite this really cool Hall of Fame honor, we ain’t going anywhere — our FMLA blog posts will still come fast and furious!  So, if you are not already 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.

ABA blawg 2016About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

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!

Blawg100HonoreeBadgeMy dear blog readers:

I am delighted to announce that our FMLA Insights blog has been selected for the fifth consecutive year as one of the Top 100 Legal Blogs of 2015 by the ABA Journal! In its 9th Annual ABA Journal Blawg 100, we were only one of six employment blogs to receive the honor.

I am honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In this week of all weeks, I am so thankful for your support of my little FMLA blog. Thousands subscribe to the blog, and tens of thousands more visit our site every month. Thank you! Thank you! Thank you!

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 employment blogs who made the list – they are worth the read:  Eric Meyer’s The Employer Handbook, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,  A hearty congratulations to my friend Jon Hyman, whose Ohio Employer’s Law Blog, was voted into the blogging Hall of Fame this year!

Much to be thankful for this year.  Happy Thanksgiving!

 

P.S. Some of you may not be familiar with the ABA or the ABA Journal.  Here is some background, so you have some context for our blogging award:

About the American Bar Association (ABA)  www.abanet.org 

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.  Quick note: On December 1, 2015, I will be a panelist in an ABA webinar entitled, “FMLA: The Basics that You Need to Know“! This webinar will be of benefit to your colleagues just getting started out administering FMLA. Please register here!

About the ABA Journal www.abajournal.com

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

 

Edepartment-of-labor-300x300arlier this month, I had the pleasure of presenting on complex FMLA issues at the American Bar Association’s Annual Labor and Employment conference. During the session, entitled “The FMLA 20 Years Later,” we covered key FMLA notice and medical certification issues and other difficult FMLA scenarios.

Notably, one of my co-panelists, Andrea Appel, Regional Counsel for Civil Rights in the Department of Labor’s Philadelphia office, reminded employers of the DOL’s key focus on systemic FMLA problems during their investigations of employers’ FMLA practices.  As I have reported in my previous blog posts, the DOL’s interest in systemic issues means that the agency will regularly broaden its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.  With increasing regularity, the DOL will move beyond a single complainant to an entire group, department, employer location and onto multiple employer locations to ensure compliance across a company’s work sites.

As reported by Thompson Information Services, who was covering our ABA conference session, and as I have reported in my previous blog posts, the DOL’s systemic investigations will generally take aim at three types of information:

  • statistical — leave trends, leave requests, leave approvals and responses to leave requests by supervisor, job group, type of request or any other grouping;
  • anecdotal — based on interviews with employees, supervisors, administrators and managers; and
  • documents — records of leave requests, notices provided, leave determinations, employer’s FMLA policy and handbook, and medical certifications and re-certifications.

Insights for Employers

This is yet another reminder that employers will continue to face scrutiny by the DOL on their FMLA procedures, and that they increasingly will become party to consent decrees where their FMLA practices do not adhere to the FMLA regulations.

I know I sound like a broken record, but as you prepare your HR and legal budgets for 2016, make an FMLA self-audit a priority for your workplace in the New Year.  As I have highlighted in a previous post, your self-audit should focus on the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.  As the DOL’s Appel made clear in our ABA presentation, the DOL will be making fairly broad information requests, so excellent recordkeeping is imperative.
  7. Train your employees! Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because these managers are creating a liability for you.  Indeed, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

ABA logo 2.jpgCalling all FMLA nerds!  You’ll want to read this.

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year. This report literally includes every FMLA decision from 2013. This year’s report is as comprehensive as always — it summarizes 2013 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. Although my FR colleagues and I played a small role in the publication by summarizing a few cases, all the credit goes to attorneys Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee.

Enjoy!

aba_logo_01.jpgAs always, 2012 was an active year for cases involving the Family and Medical leave Act.  Remember the manager who gave his employee the book “No More Hysterectomies” when she asked for leave because she had to undergo a hysterectomy?  We covered that one here.  Or how about the employee who sought leave to care for her mom…on a vacation in Las Vegas?  We covered that one, too.

Although our little blog catches some of the big FMLA cases as they occur throughout the year, the American Bar Association’s Federal Labor Standards Legislation Committee publishes an annual comprehensive report that catches virtually all significant cases from the prior year.  It is a great reference for me throughout the year, and I highly recommend it to HR professionals and employment attorneys.  Plus, it’s free!

Feel free to access the 2013 ABA FMLA report here (pdf).  Kudos to Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee and serve as the main editors of the report.  Enjoy!

aba_logo_01.jpgEach year, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  2011 proved to be an active year for cases involving the Family and Medical leave Act, and this year’s report captures nearly all of them.  It is a great reference for me throughout the year, and I highly recommend it to HR professionals and employment attorneys.

The report can be accessed here (pdf).  Although my FR colleagues and I contributed to the publication, Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee, are the main editors.  Enjoy!