hot legal topics in human resources 2008 jeff nowak franczek sullivan p.c. 300 s. wacker dr. suite...
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Hot Legal Topics in Human Resources
2008
Jeff Nowak Franczek Sullivan P.C. 300 S. Wacker Dr. Suite 3400 Chicago, IL 60606 (312) 986-0300 [email protected] www.franczek.com
Overview of “Hot” Topics FMLA Update: New statutory provisions
for military leave and proposed regulations which seek to clarify certain portions of the Act
Supreme Court update: “Me too” evidence Employee Free Choice Act: Proposed
amendments to current law would drastically affect the manner in which unions are formed
ADA Restoration Act: Proposed legislation would substantially broaden scope of disabled employees and their protections
EEO-1 report: New race/ethnicity reporting requirements
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Overview of the FMLA
Entitlement: Up to 12 weeks of unpaid leave in a 12-month period for a qualified reason: Employee’s Serious Health Condition Care for a child, spouse or parent with SHC Birth of Child or Placement into Adoption/Foster
Care
Eligibility: Employee who has worked at least: 12 months for Employer 1,250 Hours in previous 12 month period
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What’s New?
FMLA Expanded to Allow For TWO New Types of Leave Under Act
1. Call to Duty (“Exigency”) Leave: Up to 12 weeks of unpaid leave due to a “qualifying exigency” related to active duty status of the employee’s child, parent or spouse. 3
“Exigency” Leave Not required by Law until Final
Regulations are promulgated; however, DOL encourages employers to provide this leave immediately.
What does “exigency” mean? Doesn’t it suggest urgency or emergency? The DOL wants feedback on this point.Arguably some connection must be
made between need for leave and service member’s call to duty. 4
Reasons for “Exigency” Leave
DOL suggests “exigency” likely means: Making financial arrangements due to
call;
Attending counseling because of call; Attending ceremonies due to call; Making farewell or arrival preparations; Making arrangements for child care. 5
Service Member Family Leave
2. Service Member Family Leave: Up to 26 weeks of unpaid leave to care for a family member who suffers a serious injury or illness while on active duty.
Who is a covered Service Member? Member of Armed Forces who is undergoing treatment, recuperation, therapy, or is on temporary disability retired list, because of a serious injury or illness.
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Service Member Family Leave
Injury or illness: Service Member must be unfit to perform in the line of duty.
Employee must be a parent, child, spouse or “next of kin.”Next of kin: Eligible employee must
be nearest blood relative of the Service Member. DOL seeking comments on whether to adopt current definition used by Armed Forces.
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Service Member Family Leave
26 weeks, available only one time in a single 12-month period.DOL soliciting comments regarding
whether leave should be allowed more than once.
Leave may be taken intermittently.How is “single year period”
calculated—According to Employer’s FMLA Year or separate year? Date of injury? Could result in two FMLA 12-month periods. 8
Service Member Family Leave
Maximum leave allowed examples:1. If employee takes all 26 weeks, still
may take 12 weeks of FMLA leave following year.
2. If employee takes 5 weeks of “traditional” FMLA leave, still entitled to take up to 21 additional weeks to care for a covered Service Member.
3. If employee takes 16 weeks to care for Service Member first, cannot take “traditional” FMLA leave because employee already has exhausted this entitlement.
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To Change or Not to Change
Do you revise Employee Handbook before Final Regs. are published? Current regulations require FMLA
Policy to be published in Handbook if employer has one
Can be an expensive proposition to make changes now only to make more changes later.
Basic revisions, direct employees to HR? 10
New Proposed FMLA New Proposed FMLA RegulationsRegulations
Generous employers—beware!
John first started working for The Sleep Well Hotel in 2007 and asked for a leave of absence after working for 10 months. Being the conscientious employer it is, Sleep Well immediately gave John time off. After two months, John remains on leave and has requested additional time off because his back “is just not getting any better.” Is John eligible for FMLA leave?Is John eligible for FMLA leave? Assuming John is eligible, can Sleep Well Assuming John is eligible, can Sleep Well
count the two first months against John’s count the two first months against John’s FMLA leave allotment?FMLA leave allotment?
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Serious Health Condition
Under current regulations, among other things, SHC includes a illness, injury or physical or mental condition that involves:
A period of incapacity for more than 3 consecutive calendar days and treatment 2 or more times by health care provider
Under proposed regulations: Above “treatment” by HCP must occur within 30 days of first day of incapacity unless “extenuating circumstances.” (Nice, but does this help?)
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Serious Health Condition
Also under proposed regulations: If condition is “chronic,” DOL
requesting comments regarding whether “periodic treatment” should be defined as at least two visits to HCP per year in connection with the medical condition.
Prenatal visits allowed as FMLA leave (including dad!) 14
Light Duty Back to John at Sleep Well—during a
new FMLA leave year, he mangled his hand while unclogging a washing machine. His doctor placed him on restricted duty, effectively prohibiting him from performing his current job. He’s asked for leave because of the pain, but Sleep Well instead offers him one-handed work: a job hailing cabs in front of the Hotel, which only requires use of his “non-mangled” hand. John jumps at the chance and starts his new job the following day. Can Sleep Well count the time on the new Can Sleep Well count the time on the new
job against his FMLA leave entitlement?job against his FMLA leave entitlement?15
Employee NoticeUnforeseeable Leave: General Rule: Notice must be given “as soon as
practicable,” which means 1-2 business days.
Proposed Regulations: Absent an emergency, employee must provide notice of the need for leave prior to start of shift.
Proposed regulations presume that employee will provide information such as a statement that he/she is unable to do job, anticipated duration of absence, whether employee intends to visit a health care provider (e.g., can no longer state “I am sick.”).
Might this open the door to a regulation that requires employee to report to a specific individual? (Courts regularly are upholding employers’ reasonable call-in policies.) 16
Medical Certification Process
Proposed regulations would allow employers to obtain more detailed information, including:HCP specialtyDiagnosisMore detail on frequency and
duration of serious health condition
HCP statements certifying SHC as “lifetime” condition not good enough—must be more specific 17
Medical Certification Process
Proposed regulations allow communication directly from employer to HCP.If authentication only—no consent
required.If clarification—employee consent
required. If consent not provided by
employee, DOL suggests leave may be jeopardized.
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Bonuses
Under proposed regulations, the DOL would allow employers to deny a “perfect attendance” award to an employee who takes FMLA leave (so long as it treats employees taking non-FMLA leave in an identical manner) 19
Practical Applications Consider using a Request for FMLA
Leave Form and Provide Employer Notices in a Timely Fashion
Monitor receipt of information from employees (request forms, medical certification) to ensure compliance with Act
Outline policies in detail in Employee Handbook and Follow them!
Train, train, train your supervisors!20
Supreme Court Supreme Court Update:Update:
““Me too” EvidenceMe too” Evidence
““My Employer Has Done This My Employer Has Done This Same Thing to Other People…”Same Thing to Other People…”
Sprint/United Mgmt. v. Mendelsohn
Company-wide RIF: Sprint laid off 51 year old employee, Ellen Mendelsohn. Mendelsohn sued, claiming age discrimination
At trial, Mendelsohn attempted to present evidence from other Sprint employees who alleged they also were discriminated against because of age—”me too” testimony
Trial court refused to allow the testimony, since it did not involve the “same” supervisor
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Appellate Court Appellate Court overturned this
ruling, finding that this evidence is relevant when a lawsuit alleges “company-wide” discrimination. Here, testimony was relevant because employees were fired around the same time and testimony was significant enough that its exclusion had denied Mendelsohn an opportunity to present her claim. 23
Supreme Court Supreme Court’s Unanimous Ruling on
whether “me too” evidence is admissible:
IT DEPENDS!
There is no per se rule that “me too” evidence will either be admissible or inadmissible
Must conduct a “fact-intensive, context specific” inquiry to decide whether testimony is relevant to the issues at hand
No guidance as to admissibility of “me too” evidence 24
Federal LegislationFederal Legislation
Employee Free Choice Act
Currently, most union organizing campaigns culminate in secret ballot electionFor past 70 years, union must get
50% + 1 votes to winThis bill will fundamentally change
this system26
Employee Free Choice Act
The New Law:An election will no longer be required if the union can secure signed authorization cards from a majority of employees in a unit appropriate for bargaining. The union simply would be certified.
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Employee Free Choice Act
Other changes:Once the union is certified and
parties start bargaining, if they fail to reach agreement within 90 days, either party may notify the Federal Mediation and Conciliation Service (FMCS) and request mediation
If mediation doesn’t work, the FMCS may refer the dispute to binding arbitration. Decision binding on parties for 2 years. 28
Employee Free Choice Act
Other changes:Act would require employers to
pay triple back pay if the NLRB finds that employer discriminated against an employee for participating in union activities
Act provides for civil penalties of up to $20,000 per violation for employer violations of NLRA during critical periods
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ADA Restoration Act
Sponsors say it intends to restore the original scope of the Americans with Disabilities Act in light of court decisions that have “unduly narrowed” the ADA’s coverage
In reality, the Act would:Broaden the definition of “disability” by
taking out the requirement that it “substantially limit a major life activity”
Shift the burden to employers to show that the employee is not a “qualified individual” 30
Changes to EEO-1 Changes to EEO-1 FormForm
Changes to EEO-1 Form In 2007, the Equal Employment
Opportunity Commission announced significant changes to the EEO-1 form, the principal reporting device for measuring an employer’s workforce by race, ethnicity and gender
Changes the manner in which the EEOC categorizes race and ethnicity, including a new category for “Two or more races”
Revisions to the former “Officials and Managers” job category, which now is split into two new categories based on responsibility 32
How Does This Affect You?
Revise your invitation to self-identify to correspond with the changes to the new EEO-1 form
Resurvey your workforce—sooner, rather than later
Reassign job titles to the new EEO-1 job categories
Update your Human Resources Information System
Beware of Affirmative Action obligations 33
Questions?
THANK YOUJeff NowakFranczek Sullivan, P.C.300 South Wacker, Suite 3400Chicago, IL 60606