Much has been written about the Second Circuit’s recent decision, finding that a Director of Human Resources at the Culinary Institute of America (“CIA”) was individually liable as an “employer” for FMLA interference and retaliation. Graziadio v. Culinary Institute of America, et al., No. 15-888-cv (2d Cir. Mar. 17, 2016). I agree this
The Supreme Court’s Same-Sex Marriage Ruling & Its Employment Implications
Unless you’ve been living under a rock, you probably are well aware that on June 26, 2015, the U.S. Supreme Court ruled that same sex couples have a constitutional right to marry and have their marriages recognized across the country. Obergefell v. Hodges, 135 S. Ct. 1039 (2015). This was a landmark ruling for…
A Cautionary FMLA Tale: “Let Them Fix It Before Firing” Must Employees Now Be Allowed to Cure Deficient Medical Certifications?
Compliance with the Family Medical Leave Act (“FMLA”) is a daily challenge for employers, as more and more employees seem to take advantage of the right to full and intermittent leave. I often see clients jump to hasty conclusions about FMLA entitlement, or deny leave or terminate employees, without fully analyzing whether they have complied…
Massachusetts’ Expanded Parental Leave Law Goes into Effect Next Week
As we previously reported, the Commonwealth of Massachusetts enacted a law earlier this year that replaces its maternity leave statue with one affording both women and men with up to eight weeks of unpaid job-protected parental leave. The new laws takes effect April 7, 2015.
While FMLA-eligible employees (both male and female) may already…
Texas Judge Imposes Temporary Halt on Enforcement of New FMLA Same-Sex Couple Rules
We recently blogged about the Department of Labor’s new rule that extended FMLA rights to same-sex married couples. The DOL’s rule was set to take effect nationwide on March 27, 2015.
A day before the rule was set to take effect, however, a federal judge in Texas granted a preliminary injunction that temporarily blocks…
Why the “Epidemic” of FMLA Lawsuits?
The Administrative Office of the US Courts just reported a 26.3% jump in Family Medical Leave Act (“FMLA”) lawsuits in 2014. These numbers are a bit startling. In 2012, there were 291 FMLA lawsuits. In 2013, there were 877 FMLA lawsuits. In 2014, there were 1108 FMLA lawsuits.
It is not just the number of lawsuits. In my practice many clients are experiencing an epidemic of FMLA claims, especially claims by employees that they need intermittent FMLA leave. This often is a contagious illness which will infect an entire department or a group, as it seems that once one employee finds out about and is certified for FMLA, other co-workers will follow, resulting in multiple employees in one department who are all certified for FMLA leave.
Why this steady increase in claims and lawsuits? There are many reasons.
First, the FMLA statute has become more widely known, as the Department of Labor (“DOL”) expands its reach and publicizes the law, so more people know about it. For instance, the DOL just recently expanded the law to apply to same sex couples. As the FMLA becomes more widely known, more employees are invoking the law.
Second, the FMLA definition of a “serious health condition” is, unfortunately, very broad and very easy for employees to satisfy. Thus, many employees who have chronic conditions find it convenient to use that condition to become certified for FMLA leave, especially for intermittent leave. It also seems that many doctors seem willing to certify that an employee needs FMLA intermittent leave, even when that need is not totally clear.
Third, once they are certified, employees can take a FMLA day and cannot be disciplined for poor attendance, making it a very convenient way for employees who want to take more time off to get that time off, without fear of discipline. In other words, once certified, employees will take a “FMLA day” when they need a day off. Since the law does not allow employers to require a doctor’s note, it is very easy then for the untruthful employee to “abuse” FMLA time (take a FMLA day when they are not truly sick). It is often impossible for the employer to detect such abuse. Adding to the frustration, an employer generally cannot deny intermittent leave based on a burden on the business, making it difficult to tolerate an employee who is absent for intermittent FMLA days.
Lastly, many lawsuits are the result of ignorance of the law or frustration by employers (or both). The FMLA is complicated, with many dozens of regulations which are not all intuitive. Your Human Resources Department needs to take the time to learn it, or have legal counsel who know the statute. Also, a lawsuit may arise because a manager who is not aware of the FMLA will inadvertently violate the law, by either not recognizing that an employee may have a serious health condition or not alerting the employee to their FMLA rights. There are also cases where employees who are certified for FMLA leave are retaliated against after requesting it, again by managers who may not be educated as to the requirements of the law.
So what should employers do? …
Continue Reading Why the “Epidemic” of FMLA Lawsuits?
DOL Extends FMLA Rights to Same-Sex Couples Nationwide
After the Supreme Court’s landmark 2013 ruling in United States v. Windsor found section 3 of the Defense of Marriage Act to be unconstitutional, there was significant uncertainty regarding an employer’s obligations under various federal employment laws as they relate to employees in same-sex marriages. On February 25, 2015, the Department of Labor went a…
Be Right The First Time – Employers Must Ensure That Their Policies Describe FMLA Rights Properly In The First Instance
The Sixth Circuit has recently taught us the old lesson that employer policies must be in line with the law on a given point, or else employers risk granting employees rights that they wouldn’t otherwise want to grant, or be required to grant.
In Tilley v. Kalamazoo Cnty. Road Comm’n, No. 14-CV-1679, (6th Cir.…
Score One for Dads in Massachusetts: New Law Requires Small Employers To Provide Paternity Leave
Under a new law signed by the former Massachusetts governor on January 7, 2015—just one day before he left office—fathers in Massachusetts will be guaranteed up to eight weeks of unpaid job-protected paternity leave following the birth or adoption of a child.
The new law expands the scope of Massachusetts’s existing maternity leave statute to…