FMLA Update: Leave Available to Care for an Adult Child

By Stearns Weaver Miller on January 28, 2013 Posted in Disability & Leave

The Family Medical Leave Act (“FMLA”) provides eligible employees up to 12 weeks of unpaid, job-protected leave to care for a “son or daughter” with a serious health condition. According to the regulations implementing the FMLA, “son or daughter” includes a minor child and a child “who is 18 years or older and incapable of self-care because of a mental or physical disability at the time FMLA leave is to commence.”

On January 14, 2013, the Wage and Hour Division of the Department of Labor (DOL) issued Administrator’s Interpretation No. 2013-1 to clarify when an eligible employee may take leave to care for an adult child who is 18 years of age or older. Four factors must be met:

Factor 1: The adult child must have a “disability.” The FMLA adopts the definition of disability in the American With Disabilities Act (ADA). In 2008, amendments to ADA significantly expanded the definition of “disability” and clarified that the term “disability” was to be construed in favor of broad coverage. The Administrator’s Interpretation said that this expanded definition of “disability” applies to the FMLA and that the disability could develop at any age, whether as a minor child or an adult.

Factor 2: The adult child must be incapable of self-care because of that disability. An adult child is incapable of self-care if he or she requires active assistance or supervision with three or more activities of daily living (e.g., grooming, hygiene, bathing, eating) or instrumental activities of daily living (e.g., cooking, cleaning, shopping, transportation).

Factor 3: The adult child must have a serious health condition. The serious health condition may be the adult child’s disability or a separate health condition.

Factor 4: The adult child must need care due to the serious health condition. The eligible employee must be needed to provide care (physical or psychological) to the adult child because of the adult child’s serious health condition.

Effect of Administrator’s Interpretation on Military Caregiver Leave: Under the military caregiver leave provisions of the FMLA, a parent of a “son or daughter” who is a covered servicemember may take up to 26 week of leave in a single 12 month period, provided all other requirements for leave are satisfied. Unlike general FMLA leave, the military caregiver leave provision’s definition of “son or daughter” is not restricted by age and thus, the son or daughter may be any age.

The general FMLA provision may, however, become applicable if the son or daughter needs care in subsequent years due to continuing effects of his or her injury while in military service. In this circumstance, the parent may be able to take FMLA leave for that child if the four factors listed above are met.

Eleventh Circuit Rules on Breastfeeding Breaks Under the FLSA

By Glenn Rissman on January 15, 2013 Posted in Discrimination & Harassment, Legislation & Regulations

On December 26, 2012, the Eleventh Circuit, which has jurisdiction over Florida, issued a decision in Miller v. Roche Surety and Casualty Co., Inc. The plaintiff, Danielle Miller, sued her former employer claiming that it violated the Fair Labor Standards Act (“FLSA ) by failing to give her a time and place to express breast milk and then by terminating her in retaliation for her complaints.

As you may recall, the Patient Protection and Affordable Care Act of 2010 amended the FLSA to require employers of 50 or more employees to provide reasonable break time for a nonexempt employee to express milk for her nursing child for one year after the child’s birth and a location, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, where the employee may express breast milk. The law creates, but does not define, an undue hardship defense for the employer.

The plaintiff in Miller admitted that the employer gave her the necessary breaks to express breast milk. The employer also made a private place, other than a restroom, available to the plaintiff for expressing her breast milk. The plaintiff unilaterally decided to use her own office for expressing her breast milk. The court concluded that the employer satisfied its obligations under the law – it provided the plaintiff with the necessary time and private location to express her breast milk.

The plaintiff’s retaliation claim also failed. She never complained to her employer about lack of access or time to express her breast milk and she never asked for a location other than her office to express. On one occasion, when the plaintiff was scheduled to work in another location, she emailed her employer to inquire where she should express her breast milk in the other office. The court concluded that the email was not a complaint that the employer had violated the law. Because the plaintiff made no complaint, there could be no retaliation for complaining.

The facts of plaintiff’s case were incredibly weak. As a result, the 11th Circuit’s decision leaves unresolved some of the more intriguing questions under the FLSA’s breaktime provisions for nursing mothers, such as what is reasonable break time, what is an undue hardship, and what if the employee prefers a space other than the private, non-bathroom location the employer has offered for expressing milk.

Court Says Employer Not Liable for Unreported Work Time

By Stearns Weaver Miller on December 21, 2012 Posted in Employee Handbooks & Policies, Employment Litigation, Wage & Hour/Employee Classification

The Sixth Circuit Court of Appeals affirmed dismissal of a lawsuit under the Fair Labor Standards Act brought by an employee who failed to follow her employer’s policy for reporting uncompensated work time. In Margaret White v. Baptist Mem’l Health Care Corp., the employer, Baptist Memorial Health Care Corp. (“Baptist”), automatically deducted meal breaks from pay checks of employees who worked shifts of more than six hours like Margaret White. However, if an employee’s meal break was missed or interrupted because of a work-related reason, the employee was to record the time in an “exception log” to ensure compensation. This policy and procedure was outlined in Baptist’s employee handbook, a copy of which White signed. White was also aware of Baptist’s procedure for reporting and correcting payroll records – to notify a nurse manager.

White, a nurse in the emergency department, sued Baptist claiming that she was not compensated for missed meal breaks. While White had complained to her managers and the human resources department about missing a meal break or having them interrupted because of work, she admittedly had failed to record those missed meal breaks in an “exception log.” She never took advantage of Baptist’s procedure for correcting payroll records. Because of her general complaints, White argued that Baptist “should have known” about the off-the-clock work.

The Sixth Circuit stated that if an employer establishes a reasonable process for an employee to report uncompensated work time the employer will not be liable for non-payment if the employee fails to follow that process. While Baptist may have known that White had missed meal breaks, the court said that because White failed to follow either procedure for reporting the uncompensated work time, Baptist had no way of knowing that she was not being compensated for the missed meal breaks.

White is good news for employers. Although Sixth Circuit does not preside over courts in Florida, the case will support the argument that employees who disregard established policies and procedures for reporting uncompensated work time will have a hard time arguing that the employer “should have known” about the off-the-clock work. White reiterates the importance of employers having well-disseminated policies for reporting uncompensated work time.

Accurate Timekeeping System Gives Company Win on Overtime Claim

By Stearns Weaver Miller on December 5, 2012 Posted in Employment Litigation, Wage & Hour/Employee Classification

The Tenth Circuit Court of Appeals recently found no liability for a company that kept accurate time records in the face of a former employee who claimed that he was not paid for overtime hours that he worked at home. In Brown v. Scriptpro, the employer, Kansas-based company ScriptPro LLC, had an automated timekeeping system in place that could be accessed remotely. Although the former employee, Frank Brown, provided testimony from his wife that he did work from home, he admittedly did not log the hours into the timekeeping system. The court explained that “[u]nder these circumstances, where the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not a Fair Labor Standards Act violation.”

The federal regulations to the Fair Labor Standards Act require employers to keep accurate time records. Those same records are essential to an employer’s defense of “off the clock” overtime claims. Brown highlights the need for employers to heed the federal regulations by having an accurate recordkeeping system in place and clearly communicating and enforcing policies regarding the recording of work time. While the Tenth Circuit only has jurisdiction over district courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, the case may be persuasive to federal courts in Florida and across the country.

I Hear There is an Election Coming Up – Is There Anything I Should Be Concerned About?

By Glenn Rissman on October 23, 2012 Posted in Employee & Management Counseling, Legislation & Regulations

If you have not watched television or driven on any road lately, you might be surprised to learn that there is a presidential election scheduled for Tuesday, November 6. Well maybe not. This blog focuses on issues that employers should consider during the next few weeks.

Florida law does not require employers to give employees time off to vote. Nor are their county ordinances in Miami-Dade, Broward, or Palm Beach that guarantee employees time off for voting. Given the availability of early voting, absentee ballots, and poll hours before and after work, employers should not feel compelled to allow employees time off to vote. However, if you do allow time off to vote, you must be consistent. Allowing only individuals or classes of employees time off to vote who you anticipate will vote for your preferred candidate could lead to claims of voter coercion or disparate impact.

Do not dock the pay of exempt employees who miss work time to vote. As you know, to qualify for an overtime exemption under the Fair Labor Standards Act, many employees must be paid on a salary basis. Docking a salaried exempt employee’s pay for a partial day absence is inconsistent with the notion of salary basis. Docking these employees’ pay for a partial day absence could result in having to pay them, and all employees in their job classification, overtime going back up to three years.

For private employers, employees have no free speech rights under the First Amendment. If you are a private employer, the Constitution’s right to free speech does not apply to your workplace. You can prohibit all political speech in the workplace, with some caveats. Some political speech could implicate state and federal prohibitions against discrimination on the basis of religion. Issues such as birth control, abortion, and gay marriage are hot political topics, but they also may implicate an employee’s religious beliefs. A discussion about a party’s or a candidate’s views on organized labor could be protected under the National Labor Relations Act. Rather than ban all political speech in the workplace, employers should consider reminding employees to keep discussions about political issues civil and to respect a co-worker’s request not to participate in the conversation.

Do not try to influence for whom or for what employees vote. Employers should avoid trying to influence employees to vote for a particular candidate or for or against a particular ballot measure, such as an amendment to the state constitution. Florida law gives voters the right to vote free from coercion or intimidation by elections officers or any other person. Employers should steer clear of trying to influence how employees vote.

Florida’s Minimum Wage Set to Increase to $7.79 per Hour on January 1, 2013

By Glenn Rissman on October 22, 2012 Posted in Wage & Hour/Employee Classification

Effective January 1, 2013, Florida’s minimum wage will increase from the current rate of $7.67 to $7.79 per hour. Each year, the Florida Department of Economic Opportunity must recalculate Florida’s minimum wage based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. Based upon the calculation, the minimum wage will increase to $7.79 an hour.

Florida’s minimum wage statute requires employers to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees work. The minimum wage posting is in addition to wage and hour postings under federal law. Florida minimum wage posters in English and Spanish are available by clicking on the highlighted links.

For companies with employees outside the State of Florida, the federal minimum wage remains $7.25 per hour. You should verify that no state or local wage law requires payment of a minimum wage greater than the federal minimum wage.

NLRB Nixes Costco Social Media Policy

By Glenn Rissman on October 10, 2012 Posted in Employee Handbooks & Policies, Labor Law

Am I the only blogger who has a problem with social media? My twelve year old is addicted to his smart phone and Instagram. I constantly get poked from Facebook users. I read with dismay how administrative law judges interpreting the National Labor Relations Act (NLRA) have invalidated employers’ efforts to place some limits on the use of social media by employees. We have blogged extensively on interpretations of the NLRA that give employees a free hand to criticize their employers and managers on the worldwide web. Now, the National Labor Relations Board (NLRB) has issued its first social media decision — Costco Wholesale Corporation.

Costco’s employee handbook included a policy that stated: “Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.” The administrative law judge who first reviewed the policy statement concluded that employees would reasonably infer that Costco’s purpose was to ensure a “civil and decent workplace.” The NLRB disagreed. The NLRB found that employees would reasonably construe the rule as one that prohibits them from exercising their rights under Section 7 of the NLRA.

Section 7 of the NLRA guarantees employees’ rights to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. The NLRB determined that the Costco policy infringed upon employees’ Section 7 rights because it “encompasses concerted communications protesting [Costco’s] treatment of its employees.” In the NLRB’s opinion, the Costco rule had a reasonable tendency to inhibit employees’ protected activity, such as being critical of Costco or its management. The policy therefore violated the NLRA.

It is clear that the current NLRB will continue to invalidate social media policies it views as overly broad. If a policy can be construed as even remotely “chilling” an employee from exercising his or her right to criticize working conditions, pay, and other workplace issues, the NLRB will invalidate the policy. The current enforcement environment compels employers to adopt narrowly defined social media policies that only prohibit actions such as defamatory remarks, unlawful harassing behavior, and disclosure of trade secrets.

USCIS Extends Temporary Protected Status for Certain Haitian Nationals – EADs Automatically Extended

By Glenn Rissman on October 10, 2012 Posted in Immigration

On October 1, the U.S. Citizenship and Immigration Services (USCIS) extended the Temporary Protected Status designation for Haiti for a period of eighteen (18) months, until July 22, 2014. Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of that country from returning safely or prevent the country from handling their return adequately. There are currently several countries designated for TPS, including El Salvador, Nicaragua, Honduras, and Haiti.

Qualifying individuals from Haiti may re-register for TPS status by filing Form I-821 during the period from October 1 to November 30, 2012. Applicants can also apply for a new Employment Authorization Document (EAD) by submitting Form I-765. The EADs of Haitians currently in TPS status will be automatically extended for a period of six months, through July 22, 2013. The automatic extension is limited to EADs with an expiration date of January 22, 2013. The EADs must also bear the designation “A-12” or “C-19” on the face of the card under “Category” to qualify for the six month extension. Eventually, qualified individuals will receive new EADs valid to July 22, 2014.

When completing Form I-9 using an automatically extended EAD prior to
July 22, 2013, for a new hire, the USCIS advises as follows:

1. In Section 1, the employee checks “An alien authorized to work,” writes the A-number in the first space, and writes the automatic extension date (July 22, 2013) in the second space.

2. In Section 2, the employer records the document title, records the document number, and records the automatically extended EAD expiration date (July 22, 2013).

After July 22, 2013, the employer will have to re-verify the employee’s authorization to work.

For an existing employee who presented a TPS EAD that was valid at the time of hire, has a printed expiration date of January 22, 2013, and is now automatically extended for six months, the USCIS recommends the following Form I-9 procedure:

1. In Section 1, the employee draws a line through the expiration date in the second space, writes July 22, 2013 above the previous date, writes “TPS Ext.” in the margin of Section 1, and initials and dates the correction.

2. In Section 2, the employer draws a line through the expiration date written in Section 2, writes July 22, 2013 above the previous date, writes “TPS Ext.” in the margin of Section 2, and initials and dates the correction.

After July 22, 2013, the employer must re-verify the employee’s authorization to work.

Employers who participate in E-Verify will receive a “Work Authorization Documents Expiring” case alert. For existing employees with TPS EADs that have been automatically extended, USCIS instructs employers to disregard the E-Verify case alert and follow the instructions above explaining how to correct the Form I-9.

USCIS reminds employers that they cannot require employees to present proof of their Haitian citizenship.

Beginning January 1, 2013, Employers Must Use a New Summary of Consumer Rights to Comply with the Fair Credit Reporting Act

By Glenn Rissman on September 18, 2012 Posted in Hiring/Termination, Legislation & Regulations

The Fair Credit Reporting Act (FCRA) is the federal law regulating, among other things, background checks that employers conduct on applicants for employment and employees. Employers who use third parties to provide background reports on employees or potential employees know that they must make certain disclosures before taking any adverse action based in whole or in part on the results of the third party’s background check. Generally, the employer must provide the employee or applicant with a copy of the background check report and a statement summarizing the individual’s rights under the FCRA.

Prior to the Dodd-Frank Act, the Federal Trade Commission was responsible for administering the FCRA. Now, the newly created Consumer Financial Protection Board (CFPB) is responsible for rule making under the FCRA. The CFPB issued regulations calling for the use of a new Summary of Consumer Rights form. The new form is slightly different from the form published by the Federal Trade Commission. Employers may continue to use the Federal Trade Commission version of the form through December 31, 2012. Thereafter, employers must use the CFPB’s version of the Summary of Consumer Rights under the FCRA form. A link to the new Summary of Consumer Rights Under the FCRA is provided for your reference. Employers taking adverse actions after January 1, 2013 based upon the results of a background check should be sure to use the CFPB’s new form Summary of Consumer Rights under the FCRA.

Appeals Court Says ADA’s Safe Harbor Provision Permitted Medical Examination and Disability-Related Inquiries for Wellness Program Tied to Group Health Plan

By Stearns Weaver Miller on September 10, 2012 Posted in Disability & Leave, Employee Benefits & Compensation, Employment Litigation

The Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, ruled on Monday that Broward County’s wellness program, which required employees to undergo a biometric screening and fill out a health assessment questionnaire, did not violate the Americans with Disabilities Act (“ADA”). The ADA generally prohibits medical examinations and disability-related inquiries unless job-related and consistent with a business necessity. However, the ADA has a safe harbor provision stating that the statute “shall not be construed” as prohibiting employers “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.”

Broward County employee Bradley Seff filed a class action lawsuit alleging that the County’s wellness program violated the ADA. From the information gathered from the screening and questionnaire, employees identified as having asthma, hypertension, diabetes, congestive heart failure or kidney disease were given the opportunity to participate in a disease management coaching program and become eligible to receive co-pay waivers for certain medications. An employee who did not participate in the wellness program, like Seff, incurred a $20 charge biweekly. The trial court granted summary judgment for the County finding that the wellness program fell under the safe harbor because it was a “term” of the group health plan.

Seff appealed, pointing to the deposition testimony of the County’s acting benefits manager, Lisa Morrison, who said that the wellness program was not a “term” of the County’s benefit plan nor was it a “term” contained in the County’s health or pharmacy plans. The appeals court said that Morrison’s testimony could be interpreted in two ways but that neither interpretation raised a triable issue of fact. Morrison could have been stating her opinion that the wellness program was not a benefit plan term within the meaning of the safe harbor provision, which would have been a conclusion of law, and subject to evaluation by the court, not a jury. Or Morrison’s testmony could be understood to mean that the physicial documents comprising the group health plan did not include a written term providing for the wellness program. This, too, would not have raised a triable issue of fact absent authority suggesting that a wellness program “must be explicitly identified” in the benefit plan’s written documents to qualify as a “term” under the ADA’s safe harbor provision. Rather, the appeals court said that the record established that the wellness program was indeed a part of a health insurance contract to provide Broward County with a group health plan and, therefore, was a “term” of County’s group health insurance plan. Further, the County had presented the program as part of its benefit plan in at least two employee handouts.