Practical Tips for Managing FMLA Leave & FLSA Issues in the Workplace

Transcription

1 Practical Tips for Managing FMLA Leave & FLSA Issues in the Workplace Presented by: Karen Luchka Wingo Phone: (803) Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland ME Portland OR San Diego San Francisco Tampa Washington, DC

2 What Are We Dealing With? According to one survey, 35% of FMLA leave takers took leave more than once in a year. 30% of FMLA leave taken was for less than 5 days and 20% was for less than one day. Source: Employment Policy Foundation 4/19/2005

3 What the DOL is Saying 91% of employers report that complying with the FMLA has had either a positive effect or no noticeable effect on employee absenteeism, turnover and morale. 85% of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.

4 What the DOL is Saying 24% A relatively small portion of leave taken for FMLA reasons is intermittent leave. 13% of all employees reported taking leave for a FMLA reason in the past 12 months.

5 What the DOL is Saying Employers reported the misuse of FMLA is rare. Fewer than 2% of covered worksites reported confirmed misuse of FMLA. Fewer than 3% of covered worksites reported suspicion of FMLA misuse.

6

7 Hypothetical No. 1 Jackie has had attendance issues throughout her 18 months of employment. Jackie requested to be transferred to first shift two months ago following her divorce due to childcare issues. It was denied because transfers are awarded based on seniority. She has now submitted an FMLA leave form indicating that she needs to be transferred to first shift or granted intermittent leave 4-6 times a month due to Shift Work Shift Disorder. You call BS until you Google Shift Work Shift Disorder and find out that it is the real deal its on Wikipedia and WebMD. You are still just not buying this and know your manager will go through the roof if you tell her about this leave request. What can you do?

8 Certification Regulations permit an employer to contact an employee s HCP to authenticate or clarify information required by a certification form Cannot contact to obtain additional info Direct supervisors may not contact HCP Only health care providers, HR professional, leave administrator or management official may contact HCP

9 Certification If an employer believes a certification is incomplete or insufficient to make a serious health condition determination, employers must notify employees in writing of the deficiencies and specifically identify the missing/insufficient information. Employers must provide employees with seven calendar days to correct the problem.

10 Second Opinions The regulations to the FMLA specifically provide that [a]n employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer s expense. Pending receipt of the second opinion, the employer must continue to provisionally designate the employee s leave as FMLA leave. As a result, all group health benefits must be maintained while the leave is provisionally designated as FMLA.

11 Second Opinions The Company has the right to select the health care provider who will furnish the second opinion, provided, the healthcare provider selected is not employed on a regular basis by the employer. In particular, the employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion.

12 Second Opinions Employer must pay the costs of the obtaining the second opinion and must reimburse employee for any reasonable out of pocket travel expenses incurred to obtain the second opinion. If the opinion of the healthcare provider who furnishes the second opinion is the same as the employee s provider, FMLA leave must be granted.

13 Third Opinions However, [i]f the opinions of the employee s and the employer s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer s expense. Such a third opinion is final and binding.

14 Third Opinion The expenses associated with obtaining the third opinion must be borne by the Company. The third health care provider must be designated or approved jointly by the employer and the employee. Both parties have an obligation to act in good faith to attempt to reach agreement on whom to select for the third opinion.

15 Hypothetical No. 2 Raymond requested FMLA leave eight months ago due to recurring panic attacks. Over the last several months, the Company has acquired new facilities and the workload on everyone has increased. Raymond has been taking more FMLA leave than before and it is impacting his department s ability to get work done on time. The supervisor wants to fire Raymond because he is unreliable. When you tell him that firing him probably isn t the best course of action because his reliability issues are caused by a medical condition, he said he doesn t give two ***** about his medical condition and this isn t about his medical condition, all he needs is someone that he can count on to show up to work and do their job. So what can you do?

16 Intermittent Leave Basics An employer is required to grant employees intermittent or reduced schedule leave when such leave is medically necessary for: the employee s own serious health condition, or the serious health condition of a child, spouse or parent. An employer may not require doctor s certification for each absence.

17 Intermittent Leave Notice & Scheduling May require that absences be scheduled to minimize disruption (subject to approval of the HCP) Medically necessary Does not necessarily require treatment

18 Transfers Intermittent Leave The employer may transfer the employee temporarily to an available alternate position for which the employee is qualified provided the position has: equivalent pay and benefits, and better accommodates recurring periods of leave than the employee s regular employment position. The alternate position does not have to include equivalent job duties.

19 Transfers Intermittent Leave Employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee When an employee who is taking leave intermittently and has been transferred to an alternative position, no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he/she left when the leave commenced An employee may not be required to take more leave than necessary to address the circumstance that precipitated the need for leave

20 Recertification Less than 30 days: An employer may require recertifications no more often than every 30 days. More than 30 days: If the medical certification indicated the minimum duration of the condition is more than 30 days, an employer must wait until the minimum duration expires before requesting recertification.

21 Recertification If circumstances described in previous certification have changed significantly (e.g. certification states employee would need leave 1-2 days/month for migraines, but is missing 1-2 days/week), then an employee may request a recertification in less than 30 days.

22 Hypothetical No. 3 I have an employee named Michele. She is on approved intermittent leave for migraines. Her supervisor has noticed that she only takes leave on Mondays, Fridays, and game days. Can we require her to bring in a doctor s note after each time she takes intermittent leave?

23 Answer An employer may not require doctor s certification for each absence.

24 Stay Up-to-Date on Eligibility Must have worked at least 12 months for the employer (need not be consecutive). Must have worked for at least 1,250 hours over the past twelve months (not including vacation, sick leave, holidays, layoffs or other time not worked). There must be 50 employees within 75 miles of the worksite.

25 Stay Up-to-Date on Eligibility Employers evaluate whether an employee on intermittent leave is eligible for FMLA leave at the beginning of each 12-month period. If an employee's absences during the previous 12-month period cause his or her hours worked to dip below 1,250, continued intermittent FMLA leave can be denied or delayed.

26 Employee Notice General Rules General Rule: Provided no more than 30 days is required, employee must comply with employer s usual and customary notice and procedural requirements, absent unusual circumstances

27 Employee Notice Deleted language that employer may not disallow or deny leave if employee fails to follow employer s usual policies for leave and calling-in Now, absent unusual circumstances, employer may delay or deny FMLA leave for that reason Employer may also take appropriate action under its rules, absent unusual circumstances, and not in discriminatory fashion

28 Notice of Intermittent Leave Employee must advise you of the reasons why the leave schedule is necessary and the schedule of treatment Employee must consult with you and make a reasonable effort to schedule the leave so as not to disrupt operations.

29 Hypothetical No. 4 Susan has been out on FMLA leave for 8 weeks after injuring her back in a car accident. Her coworkers are claiming she is a fraud because she has posted pics of herself on Facebook riding in a boat on vacation in Mexico, holding her grandkids, and posted about taking classes at the local community college. What are your rights?

30 FMLA Protections The FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave. In February 2013, a federal judge in Michigan dismissed the lawsuit finding that the Medical Center had terminated the nurse for its honest belief that she had abused leave and not for taking leave.

31 Hypothetical No. 5 Lindsay has been out on leave. While she was out, another employee has been filling in for her handling accounts receivable. She has found so many mistakes in the records, she has lost count. She also found revealing pictures of Lindsay s husband on her computer. She is not expected back from leave for another 3 weeks. What do we do?

32 Risk of retaliation claim Lessons of Adams v. Fayette Home Care Consistency, consistency, consistency

33 Hypothetical No. 6 Jake is a maintenance employee who took 12 weeks of FMLA leave due to cancer. He developed an infection during leave and has said that he needs 6-8 weeks of leave or more as a result. What are your obligations? What should you consider?

34 Leave as a Reasonable Accommodation EEOC Interpretative Guidance indicates leave is a reasonable accommodation Nearly every circuit agrees Must be granted unless undue hardship

35 Reasonable Accommodations Obligations did not change Determined on a case-by-case basis Employer allowed to define essential functions Requires interactive process

36 Undue Hardship Do not have to provide an accommodation if it will cause an undue hardship Undue hardship is not limited to financial difficulty, but includes anything that would be unduly extensive, substantial, or disruptive or fundamentally alter the nature or operation of the business.

37 Undue Hardship Significant loss in productivity Decrease in customer responsiveness Deferred projects Lost sales Increased burden on management Temporary employees or overtired/overworked co-workers Complexity of employee s job, size of the facility, and other factors all relevant

38 The Interactive Process Employer must engage in good faith. Document each step of interactive process.

39 HYPOTHETICAL My manager tells me that I must stay within my labor budget. I tell hourly paid employees that if they need to work after the scheduled time, clock out and then wrap it up. Is this okay?

40 HYPOTHETICAL An employee is supposed to have supervisor approval before working overtime. The employee works overtime without permission. The supervisor tells the employee that he will not be paid because he did not have permission. Is this permissible under our policies? The law?

41 FOLLOW PAY POLICIES The Department of Labor's View: If you don't want to pay for the work, you must prevent it from being done Proper enforcement of pay policies is management and discipline Do not rely on time clocks to manage your employees for you!

42 Duties Regarding Nonexempt Employees

43 DUTIES REGARDING NONEXEMPT EMPLOYEES An employer must keep records of all time the employer knows about or has reason to know about not just time employee is required or asked to work Keep accurate records of all time a nonexempt employee works each workday and each workweek

44 COMMON TROUBLE SPOTS Make sure you understand management's wage-hour policies. Periodically determine whether time records appear to be accurate. Overtime working early and working late

45 COMMON TROUBLE SPOTS Travel Time Meals and Breaks Meetings On-Call Time

46 A manager decides to provide a special bonus of $50 each week to employees that receive a patient compliment. Payroll is not aware of the bonus. The employee works 50 hours and claims her overtime is not correctly calculated. Does she have a reason to complain? HYPOTHETICAL

47 OVERTIME PAY Count hours worked over 40 in a workweek. Pay 1.5 times the "regular rate" of pay (all pay all hours the pay covers). Include in the regular rate things like bonuses, commissions, incentive pay and other kinds of extra pay.

48 OVERTIME PAY Some payments can be excluded from the regular rate. For example: Pay for un-worked holidays. Pay for un-worked vacation time. Discretionary bonuses (be careful with this!)

49 COMPENSABLE TIME TRAVELED Generally not to or from work. Errands, required travel from primary work site. Travel that cuts across employee s normal work day. Includes weekends during normal work day hours. After hours travel does not include time spent as passenger in an airplane, bus, boat or automobile.

50 HYPOTHETICAL An employee tells his supervisor that he the law requires the Department to provide an employee with breaks every 4 hours. True or False?

51 MEALS AND BREAKS Federal law does not require lunch or coffee breaks. Short breaks (usually lasting about 5 to 20 minutes) are compensable work hours that would be included hours worked. Meals/Breaks of 30 minutes or longer are not included in hours worked.

52 HYPOTHETICAL Employee takes 30 minutes unpaid meal break. Employee takes lunch at work station so she can answer the phone and address problems. As a result, her lunch is regularly interrupted. Because her supervisor has told her she must take a lunch, she should be docked for the 30 minute lunch. True or False?

53 HYPOTHETICAL An employee takes an excessive number of 10 and 15 minute breaks. The supervisor docks the employee s pay. Is this okay?

54 HYPOTHETICAL Employee is given a 15 minute paid break by his supervisor. The employee is 2 minutes late returning (and this is a pattern the employee has been warned about). The supervisor decides to make future breaks unpaid. Is this okay?

55 HYPOTHETICAL An employee is sent to mandatory safety training. The employee s supervisor tells him it will not be paid because the training is not directly related to the employee s job. Is this permissible?

56 MEETINGS AND TRAINING ARE COMPENSABLE UNLESS: Outside work hours and voluntary No productive work performed Not directly related to employee s job (may still be non compensable if it corresponds to training offered at independent bona fide institutions of learning)

57 ON CALL TIME Employees not at work that are free to engage in personal activities, but must notify employer where they may be reached, are not compensated while on call. If the on-call conditions are restrictive or so frequent that the employee cannot use the time for personal purposes, the time is compensable.

58 Rules Regarding Exempt Employees

59 FLSA EXEMPTIONS White-Collar Exemptions: Executive Administrative Academic Administrative Professional Teacher Computer Employee Outside Sales Highly-Compensated

60 EXEMPTION BASICS Specific criteria apply for each exemption. It s the employer s burden of proof. Exemptions relate to individuals not to job titles, job descriptions, pay classifications, job groups, etc.

61 PROBLEM AREA Treating non-exempt employees as exempt Just because someone is paid a salary does not mean the person is exempt Employers are far too quick to decide someone is exempt Sometimes it is a status issue

62 THREE CRITERIA FOR EXEMPTION Salary Level Salary Basis Job Duties

63 EXECUTIVE EXEMPTION Paid on a salary basis at a rate of at least $455 a week, and Primary duty is managing the organization or one of its departments or subdivisions, and Must customarily and regularly supervise at least two or more other full-time employees or the equivalent, and Has the authority to hire or fire, or makes suggestions and recommendations as to hiring, firing, advancement, promotion, or any other change of status that are given particular weight.

64 PRIMARY DUTY Relative importance of exempt duties. Percentage of time spent enforcing exempt duties. Relative freedom from supervision.

65 STAFFING MEETS THE TWO OR MORE REQUIREMENT General Manager Assistant Manager Assistant Manager Assistant Manager Full-time Employee Full-time Employee Full-time Employee Half-time Employee Half-time Employee Half-time Employee Half-time Employee Half-time Employee Half-time Employee

66 STAFFING DOES NOT MEETS THE TWO OR MORE REQUIREMENT Assistant Manager Assistant Manager Full-time Employee Full-time Employee Full-time Employee

67 ADMINISTRATIVE EXEMPTION Paid on a salary basis or a fee basis at a rate of at least $455 a week, and Primary duty is office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and This work includes the exercise of discretion and independent judgment with respect to matters of significance.

68 MANAGEMENT/GENERAL BUSINESS Finance and Accounting Human Resources Marketing Purchasing, etc.

69 PROFESSIONAL EXEMPTION Paid on a salary basis or a fee basis at a rate of at least $455 a week, and Primary duty is performing: A. Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, B. Work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

70 Final Questions? Presented by: Karen Luchka Wingo Phone: (803) Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Solutions Portland at Work ME Portland OR San Diego San Francisco Tampa Washington, Phone DC (zzz) zzz-zzzz