Human Resource Professionals Beware -- Second Circuit Finds HR Director May Be Individually Liable Under the FMLA
March 23, 2016
New York Labor and Employment Law Report
Family and Medical Leave Act
Human Resource Professionals Beware -- Second Circuit Finds HR Director May Be Individually Liable Under the FMLA
March 23, 2016
On March 17, 2016, the United States Court of Appeals for the Second Circuit issued a decision in Graziadio v. Culinary Institute of America. In that decision, the Court held that the facts (when viewed in the light most favorable to the plaintiff) could lead a jury to conclude that the Culinary Institute of America’s Director of Human Resources was individually liable for violating the Family and Medical Leave Act. The plaintiff, Cathy Graziadio, was employed at the Culinary Institute as a Payroll Administrator. On June 6, 2012, Graziadio’s son was hospitalized due to issues related to Type I diabetes. Graziadio immediately informed her supervisor that she needed to take leave to care for him. Graziadio completed the necessary FMLA paperwork and submitted medical documentation supporting her need for leave. Only a few weeks later, Graziadio’s other son fractured his leg playing basketball and underwent surgery. Graziadio again notified her supervisor that she needed leave to care for her other son and expected to return to work, at least part time, by the week of July 9. On July 9, Graziadio’s supervisor asked for an update on Graziadio’s return to work and Graziadio responded that she needed a reduced, three-day week schedule until mid-to-late August and could return July 12 if that schedule was approved. Graziadio asked whether the Culinary Institute required any further documentation from her. At that point, Graziadio’s supervisor contacted the Director of Human Resources regarding Graziadio’s request. Despite several calls and e-mails from Graziadio, the Director of Human Resources did not respond until July 17. Over the next several weeks, Graziadio and the Director of Human Resources corresponded regarding Graziadio’s need for continued leave, alleged deficiencies in her FMLA documentation, and her expected return to work date. On September 11, 2012, the Director of Human Resources sent Graziadio a letter notifying her that she had been terminated for abandoning her position. After being terminated, Graziadio commenced an action against the Culinary Institute, her supervisor, and the Director of Human Resources alleging interference with her FMLA leave and retaliation for taking FMLA leave. The District Court granted summary judgment to the Culinary Institute and the individual defendants, but the Second Circuit reversed that decision. Under the FMLA, an individual may be held liable if he or she is considered an “employer,” defined as “any person who acts, directly or indirectly in the interest of an employer to any of the employees of such employer.” In examining this standard, the Second Circuit applied the economic realities test – which courts apply to determine who may be considered an employer under the Fair Labor Standards Act. Under this test, the Court must look to whether the individual “possessed the power to control the worker in question.” The factors include whether the individual: (1) had the power to hire and fire employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. In the context of the FMLA, courts look to whether the individual “controlled in whole or in part plaintiff’s rights under the FMLA.” In the Graziadio case, the Second Circuit held that the Director of Human Resources “appears to have played an important role in the decision to fire Graziadio” and “under the totality of the circumstances, [the Director of Human Resources] exercised sufficient control over Graziadio’s employment to be subject to liability under the FMLA." Accordingly, unless the parties reach a settlement, the case will proceed to trial with both the Culinary Institute and its Director of Human Resources as defendants. This case stands as a stark reminder to human resource professionals involved in making decisions related to employee FMLA requests to proceed with caution and to strictly comply with the requirements of the FMLA when processing requests for leave. If there is any doubt regarding the appropriate course of action, human resource professionals should consult with counsel.
Federal Appeals Court Provides Employers With a Harsh Reminder to Carefully Draft Their FMLA Policies
March 31, 2015
Employers are likely well aware of the conditions that must be satisfied before an employee can be deemed eligible for leave pursuant to the Family and Medical Leave Act (“FMLA”):
February 22, 2015
The U.S. Department of Labor ("DOL") today announced a change to the definition of spouse under the Family and Medical Leave Act ("FMLA"). Under this new rule, which will be published later this week (on February 25, 2015), an employee in a legal same-sex marriage will be entitled to use FMLA leave to care for a same-sex spouse regardless of where the employee lives. The DOL initially proposed the rule on June 20, 2014. This change was triggered by the U.S. Supreme Court’s 2013 decision in U.S. v. Windsor. In Windsor, the Court ruled that the federal Defense of Marriage Act ("DOMA") was unconstitutional. Prior to Windsor, and consistent with DOMA, the FMLA defined spouse as a marriage between a man and a woman. This meant that same-sex married couples could not use FMLA leave to care for each other. Immediately following Windsor, the DOL announced that an employee could take FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriage (i.e., a “state of residence” approach). This interpretation meant that a category of same-sex spouses were still unable to use the protections of the FMLA: those who married in a state recognizing same-sex marriage, but who lived in a state that did not. This latest rule change, which takes effect on March 27, 2015, shifts to a “place of celebration" approach and ensures that same-sex spouses have the same rights as all spouses to exercise FMLA rights. In other words, as long as the employee is legally married, and regardless of the legal status of same-sex marriage in the state the employee now resides, the employee can take FMLA leave:
November 10, 2014
Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes. While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion. The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner. Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis. When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation. While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question: Do any job protections exist for domestic violence victims? Answer: Yes. In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis. While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence. This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons. It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments. Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business. Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question: Is an employer required to provide victims of domestic violence time off from work? Answer: The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection. In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence. The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question: Is an employer obligated to ensure a safe workplace for domestic violence victims? Answer: The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions. Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee. Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees. An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question: What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence? Answer: New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor. At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds. This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission. If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime. In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation. Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action. Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused. If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection). If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record. In either situation, merely ignoring the problem is never a good strategy.
October 27, 2014
Two months ago, many Americans were unfamiliar with the term “Ebola." It’s amazing how quickly things can change. Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak. Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans. If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus. Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are: fever, fatigue, muscle pain, headache, and sore throat. As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to: nausea, vomiting, diarrhea, a rash, and impaired organ function(s). The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q: What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue. If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:
Q: May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA. Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard? The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so. As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present: (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q: To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored. In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus. Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q: May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances. In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others. Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk. The governing standard here is one of reasonableness. For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms. Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q: What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury. Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm. According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States. Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern. Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q: What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed. In other words, don’t panic. Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:
It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States. However, what is abundantly clear is that this situation is constantly changing. What may seem reasonable today may need to be modified tomorrow. As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.
June 23, 2014
On Friday, June 20, 2014, the Wage and Hour Division for the U.S. Department of Labor (“DOL”) announced a proposed rule that would extend the spousal leave protections afforded by the Family and Medical Leave Act (“FMLA”) to include all eligible employees in legal same-sex marriages – regardless of where the employees live. The FMLA provides eligible employees with the right to take unpaid leave for a variety of qualifying reasons and to various qualifying family members. When focusing purely on FMLA leave for spouses, eligible employees may take FMLA leave to care for their spouse under the following circumstances: (1) when time off is needed to care for a spouse with a serious health condition; (2) when time off is needed to care for a spouse who is a covered servicemember with a serious injury or illness; and/or (3) when time off is needed for a qualifying exigency related to the covered military service of a spouse. The FMLA regulations currently define the term “spouse” to mean a “husband or wife, as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” This definition of spouse has historically excluded same-sex marriages because of certain definitions contained in Section 3 of the Defense of Marriage Act (“DOMA”), a federal law that permits states to refuse to recognize same-sex marriages granted under the laws of other states. However, in June 2013, the United States Supreme Court declared Section 3 of DOMA unconstitutional in its U.S. v. Windsor decision. What result did the Court’s Windsor decision have on the FMLA? In sum, this decision enabled eligible employees in legal same-sex marriages residing in states that recognize their marriage to avail themselves of the various leave rights and protections to care for spouses offered under the FMLA. Despite the practical developments stemming from Windsor, many same-sex couples remain unable to take FMLA spousal leave. For example, employees who are legally married in a state which recognizes same-sex marriages, but subsequently move to a state which does not, may not be entitled to seek FMLA spousal benefits because FMLA spousal benefits are governed by the state of the employee’s residence. With its newly proposed rule, the DOL is attempting to rectify this inconsistency by revising the definition of spouse so that the FMLA regulations will look to the law of the state (or country) where the marriage was entered into, as opposed to the law of the state where the employee resides. The DOL believes that this change from a “place of residence” rule to a “place of celebration” rule will allow all legally married couples, whether opposite-sex or same-sex, to have consistent FMLA rights, regardless of the state in which they reside. The DOL’s proposed rule would also permit eligible employees to take FMLA leave to care for their stepchild (child of the employee’s same-sex spouse) or stepparent (employee’s parent’s same-sex spouse) without establishing an in loco parentis relationship. Like all proposed administrative changes, this DOL rule is subject to a notice and comment period before it can be implemented. We will continue to follow this FMLA issue and provide additional updates if and when a final rule is issued.
July 5, 2012
On or about June 20, 2012, the U.S. Department of Labor, Wage and Hour Division, released a 16-page guide to the Family and Medical Leave Act (“FMLA”) in an effort to inform employees about the FMLA and to make the law more accessible to them. This publication, entitled “Need Time? The Employee’s Guide to The Family and Medical Leave Act” (“Guide”), provides a basic overview of the FMLA. Through a combination of text, flow-charts, and examples, it answers common questions that employees may have about their rights under the FMLA.
So what does this new publication mean for employers?
Although the Guide is specifically geared toward employees, it may also be useful to employers for the reasons set forth below.
A word of caution . . .
Many employers who are well-versed in the FMLA may not be inclined to utilize or familiar themselves with the Guide. However, it is important for all employers to understand that this Guide also advises employees, in specific detail, regarding an employer’s obligations to the employee under the FMLA. For example, the Guide states that employers must notify employees of their eligibility and rights and responsibilities within 5 business days, and must also notify employees within 5 business days if a leave request has, in fact, been designated as FMLA leave. In addition, the Guide informs employees of their right to continued health benefits while on leave, as well as their right to be returned to the same or nearly identical position upon their return from FMLA leave. Most importantly, employers should be aware that the Guide contains an entire page of detailed information informing employees how to file a complaint with the U.S. Department of Labor if they feel their FMLA rights have been violated.
Finally, employers are reminded that while the Guide can be a helpful and informative resource to employers and employees alike, it does not serve as a substitute for a well-drafted FMLA policy that is compliant with the law.
Third Circuit Court of Appeals Holds That Supervisors May Be Subject to Individual Liability Under the FMLA
March 29, 2012
The Third Circuit Court of Appeals recently held, in Haybarger v. Lawrence County Adult Probation and Parole, that supervisors may be subject to individual liability under the Family and Medical Leave Act ("FMLA"). Although this Third Circuit decision is not binding on U.S. District Courts in New York or the Second Circuit Court of Appeals, the decision potentially opens the door for plaintiffs in FMLA cases filed in New York to name individual supervisors as defendants in their lawsuits.
In Haybarger, the plaintiff, Debra Haybarger, was an office manager for Lawrence County Adult Probation and Parole. Ms. Haybarger's supervisor was William Mancino, the Director of Probation and Parole. Ms. Haybarger had Type II diabetes, heart disease, and kidney problems, which constituted serious health conditions under the FMLA and caused her to miss work frequently to seek medical attention. Mr. Mancino allegedly expressed dissatisfaction with Ms. Haybarger's absences and wrote on her performance evaluation that Ms. Haybarger needed "[t]o improve her overall health and cut down on the days that she misses due to illness." On March 23, 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period due to alleged performance problems, and subsequently recommended the termination of Ms. Haybarger's employment. Ms. Haybarger's employment was terminated on October 4, 2004.
After her discharge from employment, Ms. Haybarger filed a lawsuit against Lawrence County Adult Probation and Parole and Mr. Mancino. Part of her lawsuit included a claim against Mr. Mancino in his individual capacity for an alleged violation of her rights under the FMLA. The U.S. District Court for the District of New Jersey granted summary judgment to Mr. Mancino with respect to the FMLA claim against him in his individual capacity, but the Third Circuit reversed and remanded the case back to the District Court.
The Third Circuit examined the definition of "employer" under the FMLA, which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The Third Circuit also reviewed the Department of Labor's regulations implementing the FMLA, which provide that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA." Based on the text of the statute and the regulations, the Third Circuit concluded that "liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff's 'employer.'" Although the employer at issue in the Haybarger case was a public agency, the Third Circuit's analysis appears to apply equally to individual supervisors at private employers as well.
The Third Circuit also held that there was a genuine dispute of material fact regarding whether Mr. Mancino exercised sufficient authority over Ms. Haybarger's employment to qualify as an "employer" under the FMLA, and remanded the case back to the District Court for a jury trial. The Third Circuit applied an "economic reality" test to determine whether a reasonable jury could determine that Mr. Mancino qualified as Ms. Haybarger's employer under the FMLA. Citing to a Second Circuit Court of Appeals case in the context of a Fair Labor Standards Act ("FLSA") claim, the Third Circuit examined the following factors in applying the "economic reality" test: (1) whether the individual had the power to hire and fire the employee; (2) whether the individual supervised and controlled employee work schedules or conditions of employment; (3) whether the individual determined the rate and method of payment; and (4) whether the individual maintained employment records. Based on these factors, the Third Circuit concluded that a reasonable jury could find that Mr. Mancino acted as Ms. Haybarger's employer under the FMLA.
Employers in New York should be aware that plaintiffs who allege a violation of their FMLA rights may name individual supervisors as defendants in their lawsuits. Employers should take this opportunity to train their supervisors regarding their obligations under the FMLA. Employers should also remind their supervisors that their actions could result not only in liability for the employer, but also potentially in liability for themselves.
February 19, 2012
The U.S. Department of Labor ("DOL") recently issued "updated" Family and Medical Leave Act ("FMLA") model notices and medical certification forms. The prior notices and forms expired on December 31, 2011, but employers may now use the following DOL model notices and forms through February 28, 2015:
At this time, it does not appear as though the DOL has made any substantive changes to these model FMLA forms. In fact, the only modification that seems to have been incorporated by the DOL and the Office of Management and Budget ("OMB") is the new 2015 expiration date. These forms do not address important changes that have occurred since the FMLA was amended in November 2008. Specifically, these forms do not incorporate changes brought about by the 2010 amendments pertaining to military family leave (i.e., changes in exigency leave, the inquiry of a servicemember's past military service given the expanded definition of a "covered servicemember," etc.).
In addition, the DOL's forms do not contain the proposed "safe harbor" language that employers should insert on particular FMLA medical certification forms (e.g., WH-380-E) in order to avoid the disclosure of genetic information under the Genetic Information Nondisclosure Act of 2008 ("GINA"). In our January 14, 2011 blog post, we issued a reminder that employers may inadvertently obtain genetic information when they request that health care providers complete certification forms to support a leave under the FMLA or an accommodation request under the Americans with Disabilities Act ("ADA"). The GINA regulations, however, created a safe harbor for employers who integrate specific language (which is set forth in our January 14, 2011 blog post) into their requests for medical information in order to certify an employee's own serious health condition under the FMLA. In light of the fact that the DOL's FMLA model forms have not been amended to incorporate the GINA safe harbor language, we continue to recommend that employers take their own proactive measures to add and/or use the GINA safe harbor language when requesting medical information to certify an employee's own serious health condition under the FMLA.
It is entirely possible that the DOL will propose and/or make substantive changes to the FMLA model forms prior to February 2015, particularly because the DOL published its proposed changes to the FMLA regulations on February 15, 2012. The proposed changes to the regulations address topics such as military family leave, calculation of leave usage, and FMLA eligibility for flight crews. In the meantime, employers are encouraged to use the most recent published version of the FMLA model forms and to include any appropriate modifications needed to afford themselves protection under GINA's safe harbor provisions.
January 29, 2012
Recently, the U.S. Department of Labor's Wage and Hour Division released three new Fact Sheets on unlawful retaliation under the Fair Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), and the Migrant and Seasonal Agricultural Worker Protection Act ("MSPA"). Although the Fact Sheets do not contain any new information on the prohibition against retaliation, they provide a good reminder to employers regarding the scope of the anti-retaliation provisions in these three statutes.
Fact Sheet #77A provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation. The Fact Sheet reminds employers that an employee who files a complaint under the FLSA is protected from retaliation regardless of whether the complaint was made orally or in writing. The Fact Sheet also states that the anti-retaliation provision of the FLSA applies even in situations where there is no current employment relationship; for example, former employees are also protected from retaliation. The Fact Sheet further indicates that complaints made to the Wage and Hour Division are protected and that "most courts have ruled that internal complaints to an employer are also protected."
Fact Sheet #77B provides general information concerning the FMLA's prohibition of retaliation against an individual for exercising his or her rights protected under the FMLA. The Fact Sheet provides examples of prohibited conduct, which include: discouraging an employee from using FMLA leave, manipulating an employee's work hours to avoid responsibilities under the FMLA, and counting FMLA leave as absences under "no fault" attendance policies.
Fact Sheet #77C provides general information concerning the MSPA's prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under the MSPA. The MSPA applies to agricultural employers, agricultural associations, and farm labor contractors who engage in at least one of the following activities: furnishing, employing, soliciting, hiring, or transporting one or more migrant or seasonal agricultural workers.
September 17, 2010
A recent decision from the United States Court of Appeals for the Eighth Circuit raises an interesting issue: can an employer be held liable for interference with FMLA rights if it discharges an employee after giving the employee reason to believe FMLA leave has been approved -- even if the employee is not in fact entitled to FMLA leave? In Murphy v. FedEx National LTL, Inc., the Court held that an employer could be liable, if the employee reasonably believes she has been granted FMLA leave and if she has put her employer on notice that she may need FMLA leave.
The following facts are taken from the Court’s opinion. Susan Murphy and her husband worked as truck drivers for FedEx. Ms. Murphy requested FMLA leave to care for her hospitalized husband, which was approved on August 31, 2006. On September 7, 2006, her husband died. Ms. Murphy called to notify her supervisor and to inquire about specific employee and bereavement-related benefits. Her supervisor offered to obtain the information for her because she was upset. Ms. Murphy remained out of work for three days on bereavement leave provided by FedEx.
Ms. Murphy’s supervisor spoke with her again on September 11, 2006, to inform her that her FMLA leave had expired on September 7. He also asked Ms. Murphy when she would return to work. She replied that she needed thirty days to “take care of things.” The supervisor then stated, “okay, cool, not a problem, I’ll let HR know.” The two had no further discussions regarding her leave request, nor did Ms. Murphy contact FedEx to seek any additional approval regarding the leave of absence. At trial, Ms. Murphy testified that following her husband’s death, she experienced difficulty sleeping and functioning, and she cried frequently. She also acknowledged that she did not notify FedEx that she was experiencing these symptoms. On September 12, her supervisor contacted the Human Resources Department and relayed Ms. Murphy’s request for a 30-day leave of absence to “put her affairs in order.” FedEx denied the leave request, and on September 15, the supervisor contacted Ms. Murphy to notify her that FedEx was terminating her employment. Ms. Murphy subsequently sued FedEx, claiming that FedEx interfered with her FMLA rights by denying her leave request and ending the employment relationship.
One of Murphy’s legal theories was equitable estoppel; that FedEx interfered with Murphy’s FMLA rights by representing that it had granted her leave, inducing her reasonable reliance on that representation and later terminating her. On that claim, the District Court rejected FedEx’s proposed jury instruction that would have required the jury to find, among other things, that Murphy had a serious health condition and had put FedEx on notice that she potentially had such a condition. The jury returned a verdict in favor of Ms. Murphy on the equitable estoppel claim.
On appeal, the Eighth Circuit found that the District Court erred when it gave the jury instructions on the equitable estoppel claim. Specifically, the Court of Appeals found that, while an employee need not actually have a serious health condition to prevail on an estoppel theory, the employee still bears the responsibility of adhering to the FMLA’s notice requirements, including providing the employer with information sufficient to indicate the requested leave may be FMLA protected. Simply stated: “[b]efore an employee can claim FMLA protection, whether through estoppel, waiver, or otherwise, the employee must put the statute in play – she must notify her employer that she may need FMLA leave… .”
Finally, the Court noted that on retrial, Murphy has to prove that she “reasonably believed,” FedEx approved her request for thirty days as FMLA leave, rather than “some other type of leave.” The Court noted that while vague representations by the employer are not sufficient, the employer does not have to mention the FMLA to create a reasonable belief. Consequently, employers should be aware that even simple affirmations of a leave request (i.e., okay, cool, not a problem, etc.) may be sufficient to support a claim of equitable estoppel.
USDOL Interprets FMLA to Apply to Domestic Partners, Grandparents, and Other Individuals Providing Day-to-Day Care for Children
July 1, 2010
Recently the U.S. Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation (the “Interpretation”) clarifying the definition of “son or daughter” under Section 101(12) of the Family Medical Leave Act (“FMLA”) as it applies to an employee standing “in loco parentis” to a child. The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a child after adoption or birth, or to care for a child with a serious health condition. The Interpretation concludes that these rights extend to any individual who assumes the role of caring for a child, regardless of the legal or biological relationship.
The definition of a “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” According to the Interpretation, the legislative intent behind this definition was to reflect the reality that often the day-to-day responsibility of caring for a child falls to someone without a biological or legal relationship to the child, and that employees with such a responsibility are therefore entitled to leave under the FMLA.
In loco parentis, or “in the place of a parent,” is commonly understood to mean a person who has assumed obligations typical of a parent without formally adopting the child. Courts have routinely looked to the intent of the person allegedly in loco parentis to determine whether such a relationship is established; such intent is inferred from the acts of the parties. Whether an employee stands in loco parentis depends on multiple factors such as the age of the child, the child’s dependence on the employee, the amount of support provided and to what extent the employee performs duties commonly associated with parenthood.
Although FMLA regulations define persons standing in loco parentis as including those with day-to-day responsibilities to care for and financially support a child, the Interpretation views the regulations as not requiring an employee to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis. In addition, the Interpretation makes special note that neither the statute or the regulations restrict the number of parents a child may have under the FMLA. Although an employer may require the employee to provide reasonable documentation of the family relationship, a simple statement asserting that the requisite relationship exists is sufficient.
Examples of situations in which an in loco parentis relationship may be found include:
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