HR Employment Law
SPECIALIST
Trusted compliance advice for HR professionals
In The News ...
Must you pay employees
for time spent voting?
While no federal law addresses voting
leave, a majority of states do have such
laws. Most require you to offer employees
time off to vote only if the workers don’t
have sufficient time to cast ballots
before or after work. In some states,
employees must be paid for that time.
Check your state law in our State-byState Voting Leave Law chart at www.
theHRSpecialist.com/votelaw.
Prepare your organization for
the ‘fiscal cliff’ looming Jan. 1
Unless Congress acts soon, the end of
this year will see the expiration of an
unprecedented number of tax provisions.
That could cause havoc with your payroll
operations, as the IRS will be forced to
delay issuing the 2013 tax and withholding tables. Bottom line: Prepare now to
deal with last-minute changes to the tax
code. For a summary of what to expect
on Jan. 1 if Congress fails to act, go to
www.theHRSpecialist.com/cliff.
NLRB sets new limits on your
off-duty employee access rules
Does your organization set restrictions on
when and where off-duty employees can
access your workplace? If so, you should
review a new National Labor Relations
Board (NLRB) ruling that narrows the
circumstances under which you can keep
off-duty workers off your premises.
The case involved a California hospital
Continued on page 5
In this issue
This month’s employment law cases and advice......1-4
News: Health, FMLA, Halloween, dress codes.............5
Case in Point: Can casual chat spark FMLA risk..........6
Nuts & Bolts: What time records must you keep?.......7
Mailbag: doctor’s note, travel pay, nursing...................8
(800) 543-2055
•
www.theHRSpecialist.com
Vol. 42, No. 10 • October 2012
Cut the fat: Can you reject obese applicants?
I
n the past decade, two things have definitely grown: Americans’ waistlines and
the desire for U.S. employers to reduce
their employee-related health care costs.
Those two trends have more employers
considering a legally risky thought: Can
we refuse to hire overweight people?
A Texas hospital made headlines
last year when it decided to stop hiring
people with a body mass index (BMI)
of 35 or higher. Bad publicity led the
hospital to suspend its policy this year.
Still, with nearly 36% of adults in this
country considered obese, according to
the CDC, this issue isn’t going away.
What does the ADA say? No federal employment law, only one state
(Michigan) and a handful of cities specifically prohibit employers from discriminating against overweight people
in hiring, firing and job conditions.
That means the debate typically
comes down to a question of whether
obesity is a covered “disability” under
the ADA. (The ADA protected disabled
people from on-the-job discrimination.)
Simply being overweight or even
obese doesn’t typically entitle an em­­
ployee to ADA protection. But the
EEOC has said that the ADA does protect people who are morbidly obese. And
the ADA Amendments Act of 2008
broadened the definition of “disabled.”
Whether or not obesity is a protected
ADA characteristic, overweight em­­
ployees have brought successful ADA
claims under the following arguments:
The employee has a related health
condition. Weight-related conditions—
Continued on page 2
The price for tolerating name-calling: $70,000
I
f you need any incentive to crack down
on name-calling in the workplace, consider this new ruling: A jury slapped a
$70,000 judgment on an employer for
allowing a supervisor to repeatedly call
his female subordinate a “bitch.”
Recent case: Kim, a deputy director
in a sheriff’s department near Chicago,
saw her position eliminated during
budget cuts. But she didn’t go quietly.
Kim sued, alleging sex discrimination
and harassment.
Her proof: Kim said her former boss
frequently got in her face and called her
“bitch,” often in front of co-workers. On
one occasion, he allegedly said, “Shut
the f*** up, you lying bitch.” The supervisor also used the term to describe other
women.
A lower court said this name-calling
was “vulgar, rude and ungentlemanly
… but not sexist.”
Kim appealed the case and the 7th
Circuit saw the case in a different light.
It said vulgar language must be viewed
“in context,” and gender-based slurs can
trigger harassment claims based on sex.
In this case, the appeals court said,
the boss “used the word ‘bitch’ in a
gender-specific term and that its impact
was to degrade women in general and
(Kim) in particular.”
Judgment: for the employee … and
a $70,000 reminder for the employer.
(Passananti v. Cook County, No.
11-1182, 7th Cir., 2012)
Final note: Remind employees that
name-calling is inappropriate. There’s
no need to distribute a list of prohibited
words. But immediately punish anyone
who uses demeaning language. Don’t
let it escalate into a lawsuit.
Business Management Daily
Reject obese applicants?
(Cont. from page 1)
such as diabetes, heart disease and
hypertension—may be “substantially
limiting” impairments that afford the
employee ADA protection, regardless
of the degree or cause of obesity.
Plus, some ADA-recognized disabilities such as depression can
trigger weight gain, as can certain
medications that people take for
ADA-covered conditions (diabetes,
seizures, etc.)
The employer acts on stereotypes
and assumptions. If you perceive
employees or applicants to be disabled, they will earn ADA protection.
For example, a truck driver won
$109,000 in damages after his em­­
ployer suspended him without pay
based on the assumption that his obesity made him unfit to drive a truck. (McDuffy v. Interstate Distributor)
Men and women are held to different weight standards. A Yale
study found that overweight women
are twice as likely to face discrimination than overweight men. If you
treat overweight women differently,
you could face a sex bias lawsuit.
Here’s the skinny
The legally safe bet is to ignore applicants’ weight, unless it could prevent a candidate from performing the
essential functions of the job. There’s
a good chance that the weight problem could be tied to a medical condition—or causing a medical condition
—which would then cause that person to be protected under the ADA.
Instead, focus on positive actions
your organization can take to improve
employees’ overall health. Two tips:
• Implement a weight reduction
program. Keep program participation voluntary and private, and
involve employees in the planning.
• Maintain a healthy workplace
culture. Ideas: Stock vending
machines with healthy snacks;
offer annual health fairs with cardiovascular screenings; obtain discounts for staff to local health clubs;
or other activities that attract em­­
ployees of all fitness levels.
2 HR Specialist: Employment Law • October 2012
Employee late in submitting his FMLA
certification? Don’t just fire! Find out why
W
hen employees take FMLA leave,
you can require they obtain written
certification from a doctor to confirm
the underlying serious health condition.
FMLA rules say you must give the
employee “at least 15 calendar days
to obtain the medical certification.”
But take note: It’s not smart to terminate an employee simply because you
didn’t receive the paperwork on time.
Those same FMLA rules include an out
for employees who miss the deadline
for reasons beyond their control.
Recent case: When Gary, an assistant manager at a Florida Walmart,
asked for time off to deal with panic
attacks, the store manager gave him an
FMLA packet. It included instructions
for his doctor to fill out a medical certification.
The doctor did, certifying that Gary
had depression and anxiety and needed
FMLA leave. Walmart claimed it never
got the form. The doctor’s office had a
fax confirmation form showing the date
it was faxed. Gary was fired for taking
unapproved absences.
He sued, alleging FMLA interference and retaliation. He pointed out
that the regulations allow for extenuating circumstances. Gary said he would
have followed up if he had known
Walmart didn’t receive the form. The
court sent the case to trial. (Drake v.
Wal-Mart, No. 2:10-CV-679, MD FL,
2012)
Final note: Always give employees
a reasonable chance to submit paperwork and ask “why” if it’s missing.
Jumping the gun makes it look like you
were looking for an excuse to fire.
FMLA paperwork: When & how
What counts as “timely, complete and
sufficient” certification under FMLA
rules? Find out at www.theHRSpecialist.
com/FMLAtimely.
Got a hugger on your hands?
Prepare to wrap your arms around a lawsuit
H
aving a good sexual harassment
policy in place doesn’t mean much
if your supervisors ignore it. Take, for
example, a supervisor who we might
call “touchy-feely.” He greets employees
with a hug. He may kiss them on the
cheek or pat them on the back.
That probably makes some em­­
ploy­­ees feel uneasy … and may also
escalate into a sexually hostile work
environment. By then it will be too late.
Recent case: Dominique was a
Com­cast customer service representative. Every morning, her male supervisor greeted incoming employees with
a hug.
Over several months, Dominique
claimed that her supervisor also made
sexual comments to her, complimented
her legs, buttocks and lips. Once he
moved her legs from the desk where she
had them propped up. He also “accidentally” kissed her while leaning over her.
When Dominique finally complained, she was immediately transferred to a different team. Her former
boss was told to leave her alone. Even
so, he continued his demonstrative
greetings. Eventually, after another
employee complained, the hugging
boss was fired.
Dominique sued, alleging she had
worked in a sexually hostile environment. Comcast argued that Domi­nique
should have complained earlier and that
it took action when she complained.
But the court sent the case to trial.
Since the boss seemingly hugged and
touched subordinates with impunity,
Dominique could reasonably have
assumed that complaining wouldn’t help.
In effect, the court said Comcast
didn’t have an effective sexual har­ass­
ment policy if it allowed harass­ment in
plain view. (Thomas v. Comcast, No.
11-CV-1209, ND IL, 2012)
www.theHRSpecialist.com
‘Keep this private’ may be unlawful request
during internal investigations
W
hen investigating claims of harassment or misconduct, it’s common to
ask employees whom you interview to
“keep this information confidential.”
But a new ruling from the National
Labor Relations Board (NLRB) says
that such a blanket confidentiality rule
barring workers from discussing ongoing investigations violates employees’
legal rights unless “legitimate and substantial justification exists” for the rule.
Recent case: The HR director for
Banner Heath Systems typically asks
workers involved in in-house investigations not to talk about the investigation
with co-workers. She made that request
of James, who was interviewed as part
of an insubordination charge.
James filed a charge with the NLRB,
saying this policy was an unfair labor
practice that violates Section 7 of the
National Labor Relations Act. Section
7 gives employees—in both union
and nonunion shops—the right to dis-
cuss the terms and conditions of their
employment with other employees.
The NLRB sided with James, saying that for a company to justify such
a confidentiality request, it must show
the existence of a substantial business
justification. (Banner Health System,
358 NLRB No. 93)
How to respond? Avoid blanket
re­quests for employees to keep investigations confidential. And don’t discipline employees for failing to maintain
confidentiality.
According to the Fisher & Phillips
law firm, a better approach would be “to
limit such requests to situations where
there is a legitimate and demonstrable
safety concern, a concern about witness
tampering, or a risk of lost evidence.”
Even in such instances, the law firm says,
“the request should ideally be limited to
time (i.e., the duration of the investigation) and scope (i.e., during work time
and on company property).”
Tell supervisors: Never discourage
employees from taking FMLA leave
W
hen employees take FMLA leave, it
can cause major headaches for their
supervisors. Those bosses need to be
careful how they respond. Displays of
frustration—and subsequent discipline
or comments at work—may be interpreted by employees as retaliation for
requesting the FMLA leave.
FMLA interference lawsuits can succeed if employees can show that management persuaded them to work while
on leave, return sooner than planned or
not use their full entitlement.
Recent case: After Najat an­­­nounced
she was pregnant, she said her super­
visor suddenly became hostile toward
her. Still, she went out on leave right
before her due date.
Soon, her boss began impatiently
asking whether she’d given birth yet.
He allegedly told her over the phone
that she had to return to work early or
risk losing out on promotions.
www.theHRSpecialist.com
Najat took her full FMLA leave
and returned. Then she sued, alleging
FMLA interference. Fortunately for the
employer, this was a case of no harm,
no foul.
Since Najat still took the full FMLA
leave, despite the pressure, her super­
visor hadn’t interfered with her rights.
(Elsayed v. University of Houston, No.
H-11-3636, SD TX, 2012)
Final note: The employer could have
avoided the lawsuit if the supervisor
acted appropriately. Train your managers
on their FMLA duties (see box below).
FMLA training for managers
You can download our simple Memo
to Managers primer on the law, What
Managers Need to Know About the
FMLA, at www.theHRSpecialist.com/
FMLAmanager. Print and distribute or
send the info in an email to supervisors.
Legal Briefs
Win lawsuits the easy way:
Always document discipline
After being fired from her correctionalfacility job, a Florida woman sued, claiming the firing was retaliation for requesting
a medical accommodation. But the case
was dismissed because the employer
showed written warnings filed against her
for bringing a cellphone into the facility and
leaving an inmate’s cell door unlocked. All
she produced was a hunch about the re­­
taliation. That’s not good enough to win.
(Jeudy v. Attorney General, 11th Cir.)
The lesson: Employers usually win lawsuits
if they show they had a legitimate reason
for an employment decision. Good records
make that easy. Draft a policy that requires
supervisors to document all discipline.
Denying unemployment:
Is action ‘willful’ or just stupid?
A Pennsylvania company fired a manager
because he posted a sign regarding a
safety violation that began “To the moron
who can’t read …” The company denied
him unemployment benefits, saying the firing was due to “willful misconduct.” The
employee appealed and won. The court
said referring to em­ployees as “morons”
is unwise, but doesn’t rise to the level of
“misconduct” that erases UI benefits.
(Brown v. Un­­em­­ployment Compensation
Board, Com­­mon­­wealth Court)
The lesson: Not every crude or stupid
action is serious enough to bar benefits,
as this case shows. Know where your
state sets the “misconduct” bar.
It’s OK to set limits on what
workers can do during breaks
An employee at the Dallas Cowboys’
offices wanted to spend his lunch break
urging co-workers to attend church functions. The Cowboys banned religious
solicitations at work. The employee sued,
saying that since he wasn’t allowed to
do whatever he wanted during lunch, he
wasn’t truly relieved of work duties, and
thus was due overtime. The court didn’t
buy it. (Lacy v. Dallas Cowboys Football
Club, No. 3:11-CV-0300, ND TX, 2012)
The lesson: During true, unpaid breaks,
employees must be relieved of all duties.
But that doesn’t mean you can’t prohibit
some break-time activities without having
to pay them.
October 2012 • HR Specialist: Employment Law 3
Get Legal Advice for
YOUR State—FREE Sample
HR Specialist continues to add to its ­roster of
state-specific Employment Law newsletters. To
view sample issues of all available states, go to
www.theHRSpecialist.com/states.
A DVISO R Y B OA R D
ALABAMA: Paul Myrick, The Kullman Firm
ALASKA: Elizabeth Pifke Hodes, James Juliussen,
Davis Wright Tremaine
ARIZONA: L. Eric Dowell, Ogletree Deakins
ARKANSAS: Dan Herrington, Friday, Eldredge & Clark
CALIFORNIA: Joseph Beachboard, Ogletree Deakins
COLORADO: Andrew Volin, Sherman & Howard
CONNECTICUT: Pamela Moore, McCarter & English
DISTRICT OF COLUMBIA: Nancy Delogu,
Littler Mendelson
FLORIDA: Ralph Peterson, Beggs & Lane
GEORGIA: R. Read Gignilliat, Elarbee Thompson
HAWAII: Jeff Portnoy, David Banks, Cades Schutte
IDAHO: James C. Dale, Stoel Rives LLP
ILLINOIS: David Ritter, Neal Gerber Eisenberg INDIANA: Charles Baldwin, Matthew Effland,
Ogletree Deakins
KANSAS: Kathy Perkins, Kathy Perkins LLC
KENTUCKY: William Becker, Frost Brown Todd
LOUISIANA: Michelle Craig, Leslie Lanusse,
Adams and Reese
MARYLAND: Mark Swerdlin, Shawe Rosenthal
MASSACHUSETTS: Jonathan Keselenko, Foley Hoag
MICHIGAN: Fred Batten, Clark Hill
MINNESOTA: Carl Crosby Lehmann, Gray Plant Mooty
MISSISSIPPI: T. Michael Cronin, Adams and Reese
MISSOURI: Ira Blank, Lathrop & Gage
MONTANA: William J. Mattix, Crowley Fleck PLLP
NEW JERSEY: Sandro Polledri,
Adams Stern Gutierrez & Lattiboudere LLC
NEW MEXICO: Whitney Warner, Moody & Warner
NEW YORK: Louis DiLorenzo, Bond, Schoeneck & King
NORTH CAROLINA: Brian Clarke, Stephen Dellinger,
Littler Mendelson
NORTH DAKOTA: William J. Mattix, Crowley Fleck PLLP
OHIO: Jon Hyman, Kohrman Jackson & Krantz PLL
OREGON: Jathan Janove, Ogletree Deakins
PENNSYLVANIA: Susan Lessack, Pepper Hamilton
SOUTH CAROLINA: David Dubberly, Nexsen Pruet
TENNESSEE: Jeffrey Smith, Adams and Reese
TEXAS: Michael Fox, Ogletree Deakins
UTAH: Justin B. Palmer, Stoel Rives LLP
VIRGINIA: Declan Leonard, Albo & Oblon
WASHINGTON: Steven Winterbauer,
Winterbauer & Diamond
WEST VIRGINIA: Roger Wolfe, Jackson Kelly
Find all attorney contact information at
www.theHRSpecialist.com/Attorneys.
STAFF
Editor: Anniken Davenport, Esq.,
[email protected]
Editorial Director: Patrick DiDomenico, (703) 905-4583,
[email protected]
Senior Editor: John Wilcox,
[email protected]
© 2012. Volume 42, Issue 10. HR Specialist: Employment Law
(ISSN 1934-1652) is published monthly by Business Management
Daily, a division of Capitol Information Group, Inc., 7600A Leesburg
Pike, West Build­ing, Suite 300, Falls Church, VA 22043-2004,
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This publication is designed to provide accurate and authoritative information. It is sold with the understanding that the
publisher is not engaged in rendering legal service. If you require
legal advice, please seek the services of an attorney.
4 HR Specialist: Employment Law • October 2012
Assigning ‘too much’ work?
Beware lawsuit for encouraging unpaid labor
Y
ou may be tempting fate—and a Fair
Labor Standards Act (FLSA) classaction lawsuit—if your managers are
demanding so much productivity from
employees that they can’t reasonably get
everything done in the time you allow.
The problem: Nonexempt employees
may feel compelled to come in early or
stay late to meet an unreasonable quota.
And such off-the-clock work could
spark a lawsuit for unpaid overtime.
Recent case: Several Verizon
Wire­­less call center employees sued,
claiming they weren’t paid for work
performed before and after their shifts.
They claimed that, before logging in to
the call center system each morning,
they spent time checking email and
otherwise preparing for the calls that
would soon begin. Then they reversed
the process at the end of each shift.
Verizon argued that it neither
encouraged nor condoned this offthe-clock work, saying employees
could have read email and performed
other routine tasks between calls. The
employees said there was no time
between calls.
The court gave the green light for
the class-action case, based on this
group’s representation that management’s expectations could not be
met during regular working hours.
(Jennings, et al., v. Verizon, No.
12-00293, DC MN, 2012)
Off-the-clock work and
record-keeping provisions
At the heart of this case is recordkeeping. Employers have to find a way
to track all hours employees work. Any
system that fails to take into account
preparation time and routine tasks like
checking email spells trouble.
When using paper time sheets, choose
a form that clearly sets out unpaid
break time.
Make sure employees are completely
released from their duties during un­­
paid breaks. Finally, make sure the
work assigned can actually be done
in the allotted hours. Otherwise, em­­
ployees will find a way to get the work
done outside regular paid time.
Remember, it takes just one angry
employee to start a class action.
Read more about timekeeping rules
on page 7.
How can an IT network crash
become an employment law issue?
W
hy should HR worry about what
the IT department does? After all,
you’re about people ... they’re about
hardware and software.
But there is one time when HR must
collaborate with IT: when the system
goes down.
Make sure the IT department reports
any such outages to HR and provides
a brief explanation. Then document
it. That way, an employee can’t later
claim that information he needed in a
legal claim was somehow intentionally
destroyed.
Recent case: After being fired,
Stephen sued his former employer and
lost. He filed an appeal, arguing that he
could have won if only he had access
to emails between HR and his super­
visor that he claimed went missing.
The employer explained that the gap
in its email records was caused by an
IT problem, and was documented at
the time it happened. The court dismissed the case, saying Stephen had
no evidence that anyone sabotaged
the email system to destroy any documents. (Omogbehin v. Cino, et al., No.
11-2223, 3rd Cir., 2012)
Final note: Remember, you have an
obligation to preserve any documentary
evidence as soon as you learn that litigation may be pending. Have recordsretention processes in place.
www.theHRSpecialist.com
In The News ...
Give employees the new summary of health benefits
One of employers’ first responsibilities under the Affordable
Care Act is to make sure that, for open enrollment periods
beginning Sept. 23, 2012, employees receive a summary of
benefits and coverage (SBC) and a glossary that defines basic
health benefit terms. While insurers are on the hook for pro­­
vid­ing SBCs, it’s up to employers to ensure that employees
receive SBCs with their enrollment material. For details, go
to www.tinyurl.com/reformsbc, and scroll down to “Sum­
mary of Benefits and Coverage and Uniform Glossary.”
Court: FMLA damages are subject to payroll taxes
For a long time, damages employees received under the
FMLA weren’t considered payroll taxable because courts read
the FMLA’s rules—which mandate damages equal to lost pay
—as not being the same as taxable back pay. A federal trial
court has now turned this reasoning on its head and ruled that
FMLA lost-pay damages are subject to income and FICA tax.
(Cheetham v. CSX Transportation, D.C., Fla., 2012)
Be careful if employees earn tips: DOL is watching!
Newly finalized regulations make it clear that employers are
not entitled to take any portion of employees’ tips under any
circumstances. According to a DOL Field Assistance Bulle­
tin, tips are employees’ sole property, whether or not you
take the tip credit. The rules also prevent employers from
diverting employees’ tips into tip pools without informing
employees beforehand. Read the bulletin (No. 2012-2) at
www.dol.gov/whd/FieldBulletins/fab2012_2.pdf.
Costumes at work: Halloween trick or treat?
If you’ll be allowing (or encouraging) employees to wear Hal­
lo­ween costumes to work on Oct. 31, take a moment to lay
some ground rules. Costumes have sparked morale problems
and, in some cases, legal issues. Tell workers to leave at home
costumes that are revealing, in poor taste, divisive, political,
discriminatory or that mock co-workers.
NLRB sets new limits (Cont. from page 1)
whose rule stated: “Off-duty employees are not allowed to enter
or re-enter the interior of the hospital or any other work area
outside the hospital except to visit a patient, receive medical
treatment or conduct hospital-related business.”
Relying on its past rulings, the NLRB said the hospital’s policy
was overly broad. It said an off-duty employee access policy will
be upheld only if it:
• Limits access solely to the interior of the facility
• Is clearly disseminated to all employees
• Applies to all off-duty access, not just union activity.
Advice: Re-examine your no-access policy to make sure it fits
this narrowly tailored rule. Make sure you consistently apply and
enforce your rule for all employees. Read the ruling at www.
nlrb.gov/case/21-CA-039086. (Sodexo America, 358 NLRB 79)
www.theHRSpecialist.com
What to Say When …
She’s violating the dress code! Now what?
Do some of your employees emphasize the “casual” in your
business-casual dress code?
It’s best for managers and HR to step in early on these situations
before they become major distractions or even legal issues.
But what exactly should you say? Here are tips for having that
uncomfortable discussion:
1. Talk in business terms. If the policy is well-written, the manager can easily point out which part of the policy the employee
has violated, e.g., “Sandals create a safety hazard on the production line.” Citing a legitimate business reason will make the
manager’s request go down more easily for the employee.
2. Refrain from making disparaging remarks. A skirt that is
too short should be described as “too revealing,” not “trashy.”
Visible tattoos and piercings are not “weird” or “freaky,” but
“inappropriate.”
3. Prepare for a rebuttal. If the em­­ployee
complains about different requirements
for different employees being unfair, the
manager should explain that it’s legal
to set different requirements for men
and women, as long as they are applied
consistently and do not create an undue
burden on one gender.
4. Counter any challenges. Often, an em­­ployee will say, “The policy doesn’t say anything about what I’m wearing.” The manager
should respond: “The policy is intended as guidance only. The
company cannot possibly list every clothing combination.” Then
cite a legitimate business reason.
Half of firms delaying decisions until after election
Is your organization putting off major decisions—whether
to add or reduce staff, make a major investment, etc.—until
after the Nov. 6 election? If so, you’re not alone.
A survey by Sage Small Business Accounting reports that
nearly half (46%) of small business owners say they are
putting off key business decisions until after the election is
over. Almost all (96%) of small business owners surveyed
say they’ll vote. Top five issues they care about, in order:
taxes, health care, national debt, unemployment/jobs and
employment laws.
Recovering addicts are not automatically disabled
When a railroad worker returned from drug-rehab leave, he
said co-workers harassed him. He sued, claiming a disabilitybased hostile environment. The court dismissed the case, saying the worker wasn’t officially “disabled” under the ADA
because he had no current addiction problems and his past
problems didn’t substantially impair any present major life
activities. (Abron v. Soo Line Railroad)
Learn more about how to deal with drug and alcohol addiction under the ADA at www.theHRSpecialist.com/addicts.
October 2012 • HR Specialist: Employment Law 5
Case in Point
by Mindy Chapman, Esq.
Can ‘casual chat’ with employee put you on FMLA notice?
3 lessons learned …
S
without going
ay you’re sitting with employees
at lunch and one of them casually
mentions that her parents are aging
and in poor health. You note your folks
aren’t getting any younger either. Chitchat-chit-chat. Time to get back to
work.
But wait: Does that informal chatter officially put your company on
notice that the employee’s leave to
visit her sick parents is protected
under the FMLA? As one court ruled,
the devil is in the details ...
Case in Point: Donna, a sales associate for an Illinois homebuilder, was
placed on a performance improvement
plan (PIP) to increase
her sales.
A year earlier, her
father was diagnosed
with leukemia. She
had not mentioned this
to her supervisor until
she casually remarked one day that
he may need chemotherapy and she
might need leave to take care of him.
Soon after, Donna had a casual
conversation with her boss about the
“challenges of dealing with aging
parents.” She also disclosed that her
mom suffered from chronic kidney
disease and noted that she often drove
her mom to the doctor.
Donna’s sales remained in a big
slump, so she was terminated.
She sued, saying the company
interfered with her right to take
FMLA leave. The company countered by saying Donna never put it
on notice of her need to take FMLA
leave. She claimed her casual conversation with her boss was enough
notice and the employer could not
have missed those cues. (Nicholson v.
Pulte Homes Corp., 7th Cir., 8/9/12)
Result: The court sided with the
company, noting that a casual conversation in which the employee “left
open” the possible need for medical
care for her parents was not enough
information to put a company on
notice.
But take note: The court did point
to another case in which the employee
“mentioned over a period of time”
his initial symptoms, continuing doctor’s appointments and the results of
medical testing. In that case, the court
concluded the employer had sufficient
FMLA notice.
to court
1. It’s all in the details. The more
details an employee gives you about
health issues, the more likely you will
be on legal notice of FMLA rights.
2. Don’t pry. But, it’s a fine line
between making illegal medical in­­
quiries and trying to determine if an
employee is putting you on notice
under the FMLA.
3. Let the employee spill the
beans. The more detailed the beans
are, the more likely you will be
responsible for connecting them to
FMLA leave.
Online resource For tips on how to
legally collect employees’ medical
information under the FMLA rules,
go to www.theHRSpecialist.com/
fmladoc.
Mindy Chapman is an attorney and presi­dent
of Mindy Chapman & Associates LLC.
She is a master trainer and co-author of
the book, Case Dismissed! Taking Your
­Har­assment Prevention Train­ing to Trial.
Sign up to receive her blog postings at
www.BusinessManagementDaily.com.
The HR I.Q. Test
3. a
4. b
5. b
6. c
6 HR Specialist: Employment Law • October 2012
Sources: 1. USCIS.gov; 2. Manpower survey;
3. National Federation of Independent Business
­annual survey; 4. Democratic party platform;
5. AARP/SHRM survey; 6. EEOC.gov.
2. c
4. Which political party’s platform argues
that “the right to organize and collective
bargaining is a fundamental value”?
a.Republican
b.Democrat
c.Tea
6. The federal Age Discrimination in
­Employment Act (ADEA) makes it
unlawful to discriminate against
employees or applicants who are
___ or older.
a.45 b. 50 c. 40
1. a
2. What are the top two reasons, in order,
people leave their jobs?
a.Low pay, lack of respect from manager
b.Poor benefits, low pay
c.Limited career opportunities, lack of
respect from manager
5. What percentage of workers age 50
and above plan on remaining in their
­current jobs until retirement?
a.46% b. 77% c. 85%
Answers:
1. The I-9 form expired on Aug. 31. What
3. The top three biggest problems, in
do the feds say you should do now to
order, facing small business owners,
verify new hires’ immigration status?
according to a new major survey:
a.Keep using the expired form until a
a.Health insurance costs, economic
new one is published
uncertainty, energy costs
b.Stop completing I-9s until a new form
b.Economic uncertainty, taxes, health
is published
insurance costs
c.Design your own form with the new
c.Taxes, health insurance costs, energy
I-9 Creator app
costs
www.theHRSpecialist.com
Nuts & Bolts
Timekeeping records: Know the rules for exempt & nonexempt staff
FLSA-related cases in federal court
A
s recent rulings have shown, employers with casual timekeeping systems
are much more likely to face lawsuits
over unpaid wages than organizations
with strict record-keeping rules.
While the Fair Labor Standards Act
(FLSA) requires you to have a reliable
system to accurately track employees’
hours and pay, the regulations don’t say
which types of time­­keeping methods
you should use—paper, time clock, etc.
Any timekeeping plan is acceptable,
the rules say, “as long as it is complete
and accurate.”
But the rules do specify the necessary data you need to maintain for both
exempt and nonexempt workers.
Pay lawsuits on the rise
Wage-and-hour lawsuits have exploded
in the past decade, led by class-action
cases (see chart at right).
In most cases, the key is the time
that nonexempt employees are working
outside their regular work hours. Even
five or 10 minutes worked voluntarily
off the clock can add up to a large
verdict when multiplied by several
employees over several years.
Advice: Make it clear to all hourly
employees that you prohibit any work
during breaks, or before and after shifts.
If you do discover employees
How long to retain records?
The FLSA requires you to keep the following records for at least two years:
• Basic employment and earnings
records
• Work-time schedules (timecards)
• Wage rate tables
• Order, shipping and billing records
• Records of additions to or deductions from wages paid.
In addition, keep these records for at
least three years:
• Payroll records
• Employee agreements, such as collective bargaining agreements and
individual contracts
• Sales and purchase records.
www.theHRSpecialist.com
working off the clock, use
suspensions and other discipline—don’t dock their pay
for those minutes or hours.
8,000
Records to keep for
exempt employees
6,000
7,000
Record-keeping requirements
5,000
for exempt employees differ
4,000
from those for nonexempt
workers.
3,000
Because you don’t pay
exempt em­­ployees by the
2,000
hour, you shouldn’t track
1,000
the exact number of hours
they work on a daily basis.
0
Doing so might appear to a
’02 ’03 ’04 ’05 ’06 ’07 ’08 ’09 ’10 ’11 ’12
wage-hour auditor as if you
Source: Seyfarth Shaw law firm report
are indeed basing pay on the
number of hours worked,
• Time of day and day of the week
which might raise the queswhen the workweek begins
tion of whether the employee is truly
•
Regular hourly pay rate for any
exempt.
week when overtime is due (include
However, just because a worker is
an explanation of the way wages are
exempt doesn’t mean your company is
paid—such as per hour, per day, per
freed from keeping any records. With
week, per commission—plus the
exempt employees, you should keep
amount and nature of each payment
records that describe the workweek
that’s excluded from the regular rate)
and the wages paid for that period.
Specifically, you should keep the fol• Hours worked each day and week
lowing records concerning exempt staff: • Total daily or weekly straight-time
• Personal information, including
earnings (not counting overtime).
name, home address, occupation,
• Total weekly overtime earnings.
gender, birth date for workers under
• Total additions to or deductions
age 19 and the person’s workplace
from the employee’s wages each pay
identification number
period, plus an explanation of the
• Time of day and day of the week
nature and dates of those additions
when the workweek begins
or deductions
• Total wages paid each pay period
• Total wages paid each pay period
• Date of payment and the pay period
• Date of payment and the pay period.
covered by each payment.
If employees are working under a
Your records for exempt employees
special certificate that allows you to
also can track the days employees use
pay below minimum wage—such as
for sick, vacation and personal leave.
a “training” wage for students—your
records must note that fact, too.
Records for nonexempts
With nonexempt, hourly employees, you
Online resource Record-keeping
need to collect more details, including:
To read the pertinent federal regu• Personal information, including
lations on this issue (29 CFR 516,
name, home address, occupation,
subparts A and B), go to the recordgender, birth date for workers under
keeping section of the U.S. Department
age 19 and the person’s workplace
of Labor’s website at www.dol.gov/
identification number
whd/regs/compliance/whdfs21.htm.
October 2012 • HR Specialist: Employment Law 7
The Mailbag
by David Ritter, Esq., Neal Gerber Eisenberg LLP, Chicago
Can we require a diagnosis on a doctor’s note?
Nursing rights law: Can we limit baby distraction?
Q
Q
A
A
Our policy says that if employees are out due to illness or hospitalization for three days or more, they
must provide a doctor’s note that includes a diagnosis.
Someone said we can’t demand the diagnosis. Is this
true? — K.B., Texas
While it may appear reasonable for an employer to re­­
quest a diagnosis for an employee’s absence due to an
illness or hospitalization, a federal court recently said that
requiring a doctor’s note that inquires into the nature of an
employee’s absence was an intrusive and unlawful medical
inquiry under the ADA.
Rather than requiring a diagnosis for sick leave, it’s better
to require employees to submit a doctor’s note that includes
the date the employee saw the doctor and the date when the
employee can return to work. It should also state that the em­­
ployee’s absence from work was medically necessary. Finally,
inform supervisors and HR personnel that they should limit
their questions to whether the employee can perform the job,
rather than asking about the diagnosis or condition surrounding the absence.
How do we pay hourly staff for out-of-town travel?
Q
I need to send a nonexempt employee to training for
two days out of town. We’ll pay his mileage, hotel,
meals and training costs. We plan to pay him for a normal eight-hour workday for both days (the class is eight
hours per day). Do we have to pay for off-duty hours
since the employee needs to stay at the training venue?
— R.O., Texas
It depends on whether the employee is engaged in activities related to training or work during the off-duty hours.
An employer is not required to count training as working
time when: (1) it is outside normal hours; (2) is voluntary;
(3) is not job related; and (4) no other work is concurrently
performed.
In this case, the employee should be paid for off-duty
hours in which he is engaged in activities related to the
training or work. The employee should not be paid for offduty hours if he is simply staying in the hotel room and not
engaged in activities related to the training or work.
A
Upcoming Webinars
Oct. 3: The I-9 and E-Verify Compliance Workshop
Oct. 4: Termination Pay: When to Pay It, How to Pay It, and
How to Tax It
Oct. 16: Keep Negativity From Infecting the Workplace
Oct. 19: Personnel Records: What to Keep, What to Toss
Oct. 24: How to Conduct Background Checks the Legal Way
To register or buy the CD, visit www.theHRSpecialist.com/
events or call (800) 543-2055.
8 HR Specialist: Employment Law • October 2012
I know we have to provide milk-expression breaks for
new moms, and we do. But now a new mother is having her mother, who babysits, bring the baby in twice a
day to nurse. These breaks go more than 30 minutes as
the baby is passed around, etc. Can we just tell her to
express and refrigerate the milk? — E.P., Pennsylvania
The 2010 health care law requires employers to provide
“reasonable break time for an employee to express breast
milk for her nursing child for one year after the child’s birth.”
The law doesn’t say you have to allow the child to enter the
workplace, nor does it define “reasonable” break times.
You should have a private meeting with the employee,
her supervisor and HR to discuss your concerns. Explain
that your organization is committed to providing breaks, but
clarify that the purpose of the break is for expressing breast
milk, not for co-workers to visit with the baby. Check to see
if your state law offers further protection. Read more about
the federal law in U.S. Department of Labor Fact Sheet #73
at www.dol.gov/whd/regs/compliance/whdfs73.htm.
Do we have to tolerate threats from bipolar worker?
Q
After an employee threatened a co-worker with violence, we gave her a warning. When she did it again,
she told her boss she was bipolar and going through
a prescription change. She was unaware she made the
comments. Do we have to tolerate this behavior now that
we know she may be disabled? — L.E., Arizona
The ADA prohibits employers from discriminating against
qualified individuals based on a disability. But employers
are not required to sacrifice safety if the employee poses a
direct threat to the health or safety of those in the workplace.
Simply having bipolar disorder doesn’t automatically constitute a direct threat. Employers should individually assess
whether the employee presents a direct threat. Consider:
(1) the duration of the risk; (2) the nature and severity of the
potential harm; (3) the likelihood that potential harm will
occur; and (4) the imminence of the potential harm.
If the employer determines that providing an accommodation will not reduce or eliminate the employee’s threat to
safety, it may terminate the employee.
Courts have held that employers are not required to tolerate
employees who make threats or engage in violent behavior
even if the employees have a mental illness. Carefully document the analysis and steps taken in deciding to terminate
the employee and make sure the rules are enforced for nondisabled and disabled employees.
A
David B. Ritter is an attorney with the Employment
Practice Group at Neal Gerber Eisenberg LLP in
Chicago. Contact: [email protected] or (312)
269-8444. David is also the editor of the HR Special­
ist’s Illinois Employment Law newsletter. For details
on our state newsletters, go to www.theHRSpecialist.com/states.
Got a question? Email: [email protected].
www.theHRSpecialist.com