Detecting FMLA Abuse

Dealing with employees who abuse FMLA can be difficult. Letting abuse run rampant, however, can impact business productivity and put a damper on company morale (as present employees often have to pick up the slack of someone on leave). Employers who detect abuse must proceed with caution because it is very easy to run afoul of regulations.

Under the FMLA, it is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the Act. Further, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions. Violating these provisions can lead to employee lawsuits for interference or retaliation. Having said that, an employer is not helpless in thwarting employees’ ill-intentioned leaves.

If there is suspected abuse, it should be documented in detail. Who reported it? Is the source credible? Is there evidence (i.e., photographs)? Employers should refrain from overzealously playing detective or prompting other employees to snoop on a coworker – doing so may violate privacy laws. However, if there is a reasonable belief or honest suspicion that abuse is occurring, an employer may begin a confidential investigation, perhaps with the aid of private investigator. Surveillance of an employee should only be used in the most egregious situations and should always be conducted by a professional. Be sure to allow the employee the chance to refute the allegation and present his or her side of the story before taking any adverse action against him or her.

FMLA leave is a right for covered employees, but it does not act as a shield for misconduct nor does it prohibit termination of an employee who abuses the terms of an FMLA leave. You can terminate an employee on FMLA leave, but caution must be used. If you are an employer and detect abuse, it is highly recommended you contact an employment attorney about how to proceed so as to avoid costly lawsuits alleging interference or retaliation.

Ben Riddle

 

 

 

 

 

 Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

 

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Curbing FMLA Abuse

The Family Medical Leave Act (“FMLA”) permits eligible employees to take up to 12 work weeks of leave during a 12-month period if a serious health condition makes the employee unable to perform the functions of his or her position. When an employer suspects that an employee is abusing the FMLA leave, employers may feel caught in a classic Catch-22. They can ignore the abuse and operate with a reduced workforce, or subject themselves to an interference or defamation suit if they decide to challenge or confront the employee about the questionable leave.
If an employer suspects FMLA abuse, the first step in curtailing that abuse is to review the employees’ eligibility for FMLA leave. Oftentimes employers (or their HR managers) do not distinguish between employees who qualify for it and those that do not. To be eligible for FMLA leave, an employee must:

Be employed at a worksite within 75 miles of which that employer employs at least 50 people;
Have worked at least 12 months (which do not have to be consecutive) for the employer; and
Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

After determining if an employee is eligible for FMLA leave, an employer should next consider the nature of the request. Eligible employees are entitled to leave only for serious medical conditions and/or to care for certain individuals (spouse, child, or parent) with serious medical conditions. Employers serious about preventing abuse should never just take an employee’s word for it that the condition is serious. Employers can, and should, require employees to submit a medical certification of a health care professional that confirms the employee’s need for leave. If requested, the employee is responsible for providing a complete and sufficient certification, generally within 15 calendar days after the employer’s request. The employee is responsible for paying for the cost of the medical certification and for making sure the certification is provided to the employer.

It is of course important to ensure that policies and procedures are up-to-date. Current regulations make employers responsible for ongoing communication with employees requesting or taking FMLA leave. By outlining the rights and responsibilities for both the employer and employee, the potential for abuse can be minimized.

Unfortunately, even employers who take preventive steps to curb abuse may still be occasionally affected by employees’ deceptive practices. Check back on Wednesday for what to do if you suspect abuse.

Ben Riddle

 

 

 

 

 

 Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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What Does the Northwestern Decision Mean for Unions?

It is not often that a decision from the National Labor Relations Board (“NLRB”) makes headlines, but the recent decision declaring Northwestern scholarship football players as “employees” of the university has done just that. While those in the sports world are theorizing about the ruling’s impact on college athletics, the decision does offer another takeaway.

In recent years, the NLRB has decided controversies, published guidance, and pursued cases that many employers and “right-to-work” advocates argue fall outside the Board’s power. The NLRB has even created extensive rights for non‐union employees and dived into the social media policy realm. This expansion of power has drastically increased employer liability.
In finding for the student athletes in the Northwest decision, the NLRB regional director gave “employee” and “compensation” an expansive meaning. Historically non-union workforces, such as the health care industry, may start to see the NLRB attempting to exert its power over employers. If a college athlete can be deemed an “employee” and his scholarship “compensation,” then interns and contractors could easily be labeled as employees, too – and entitled to NLRA protection.
The Northwestern decision has revived talk about the pros and cons of labor unions. Whether one agrees or disagrees with the decision, there is no denying that it has turned the media spotlight on the protection that unions can offer and the power that the NLRB wields.

B. Koch

 

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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Does the Northwestern Decision Change the Direction of College Athletics?

On March 26, 2014, Peter Ohr, Regional Director for the National Labor Relations Board (“NLRB”), issued a landmark decision: a group of Northwestern football players receiving scholarships qualify as employees of their university, and have the right to form a union and bargain collectively. The decision followed after a petition was filed by the College Athletes Players Association (“CAPA”), led by former Northwestern quarterback Kain Colter. The university opposed the petition, arguing that scholarship football players are akin to stipend-receiving graduate student assistants, who have historically been categorized as non-employees by the NLRB.
Using the “right of control” test, Ohr concluded that grant-in-aid football players are employees for the following reasons:
• Scholarships are essentially payment in exchange for playing for the school’s team (Ohr noted that scholarship players received as much as $76,000 per calendar year for the “athletic services” they performed);
• The athletes are more devoted to playing football than their academic activity;
• Coaches and the university exercise substantial control over scholarship athletes both on and off the field through behavioral rules, curfews, etc.
The ruling breaks precedent with the 2004 Brown University ruling wherein the NLRB considered the academic emphasis between a university and its graduate student assistants. While the student assistants in Brown were “primarily students,” the same could not be said of the athletes because their football-related duties did not have the same nexus to their studies. The ruling specifically excludes “walk on” players because they are not compensated, nor obligated, in the same manner as scholarship athletes.
If the ruling stands, the impact on college athletes and university athletic departments will be enormous – no doubt changing college sports as we know it. Universities could be forced to bargain with athletes about employment terms, covering everything from scholarship amounts, benefits, merchandise royalties, the nature and duration of practices, etc. A players’ union could decide to strike in the middle of the season. Similarly, coaches could fire an underperforming “employee” athlete. Other laws would be scrutinized in light of the decision, too. For instance, would the Family Medical Leave Act (FMLA) apply? What implication would this have on Title IX? Would athlete “employees” be required to pay income tax on their earnings?
There is still a long way to go before this decision is made final or, alternatively, overruled. Northwestern has stated that it intends to appeal this decision. If upheld, the ruling would not apply to public universities, since public colleges and universities are not subject to the National Labor Relations Act. For more on this topic, check back on Wednesday.

B. Koch

 

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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OSHA & MSHA Budget Proposals for Fiscal Year 2015

As an employment and labor law attorney, I am constantly emphasizing the importance of complying with regulations regarding employee health and safety. Training, up-to-date policies and procedures, and an environment focused on safety are the best ways to ward off costly fines and potential employee lawsuits.

In recent years, OSHA has increased their inspections and enforcement activities and it appears that the agency is set to continue on the same course. The Obama Administration recently issued the Department of Labor’s budget request for fiscal year (FY) 2015. As part of the budget request to Congress, OSHA is seeking a total budget of $565 million, a $12.7 million increase from the enacted FY 2014 budget. A third of the new money would go towards the hiring of 27 new employees for the agency’s whistleblower protection program – an indication that there has been a surge in whistleblower cases and the agency will increase its focus on these. Other enforcement programs would receive $3 million in new funding.

The budget proposal also seeks a new target for inspections – small establishments where there is potential for catastrophic accidents. Currently, OSHA is prohibited from inspecting businesses with 10 or fewer employees in industry codes that have lower than average injury and illness rates. The proposal would allow OSHA to inspect businesses with process safety management programs or those which fall under the Environmental Protection Agency’s risk management program.

Earlier this week, MSHA’s reminder about mine safety was discussed. In the FY 2015 budget proposal, MSHA is asking for $377.2 million, the majority of which would go toward strengthening its enforcement functions. The agency wants additional funding to move forward on a regulation governing hazards faced by miners working around mobile equipment in underground mines. In addition, MSHA has proposed to end its $8.4 million annual subsidy to the states for training. The proposal mirrors one that was included in the FY 2014 budget, but did not succeed.

The proposals will no doubt face criticism and modification efforts in Congress, but the budget requests enforces the notion that employers must continue to focus on federal labor laws and protect the safety of workers.

B. Johnson

 

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Mind Regulations When It Is Time To Mine

The Department of Labor recently issued a reminder to employers involved in the mining industry. As spring (slowly) approaches, surface mines will reopen. As miners head back to the job site and prepare equipment for the new season, potential for injury is high.

Of the 12,000 metal and nonmetal mines overseen by the Mine Safety and Health Administration (“MSHA”), almost half are operated on a seasonal basis, closing for winter when conditions make operations too difficult. According to MSHA information, injuries at seasonal mines climb sharply in the spring. MSHA is vested with the power to enforce compliance with mandatory safety and health standards as a means to eliminate fatal accidents; to reduce the frequency and severity of nonfatal accidents; to minimize health hazards; and to promote improved safety and health conditions in the Nation’s mines.

Miner operators and managers should review safety information available at http://www.msha.gov and take the time to educate employees on the numerous hazards associated with the job. Always keep in mind that employers are responsible for providing a safe workplace; employee injuries are not only detrimental to operations, but can be costly – both financially and reputation-wise. If you are a manager or operator and have questions about state or federal regulations for your mining operations, contact a McBrayer labor and employment attorney today.

B. Johnson

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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More Workers Eligible for Overtime in the Future, Cont.

Recently, President Obama signed an order which directed the Department of Labor to reexamine how employees are paid for working more than 40 hours per week. According to the President, “[o]vertime is a pretty simple idea. If you have to work more, you should get paid more.”

Current regulations, however, are a little more complicated than that. In 2004, President Bush upped the threshold from $250 to $455, but that figure remains well below what it would be had it continued to track inflation – $553. Changing the overtime rules, however, comes at a price and concerns many businesses. If eligibility requirements are altered, then employers – especially small business employers – may have to find ways to cut costs elsewhere, including through employee lay-offs.

Currently, most hourly workers must be paid time-and-a-half if they work more than 40 hours a week. Salaried workers making more than $455 (or $23,660 a year) are not eligible for overtime if some of their work is considered supervisory. At issue is whether too many employees are being disqualified from overtime by being labeled as “executive” or “administrative”
(two of the exempt categories), when in reality they are not performing the tasks that are associated with these positions.

Take a look at the guidelines below for the executive and administrative categories and consider whether your employees are properly classified:

Executive Exemption

1. The employee must have a “primary duty” of managing the enterprise or a customarily recognized department or subdivision of the enterprise;
2. The employee must customarily and regularly direct the work of at least two or more other full-time employees (or the equivalent); and
3. The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.

Administrative Exemption

1. The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
2. The employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

McBrayer employment law attorneys can answer your wage and hour questions and ensure your business’s compliance with the Fair Labor Standards Act. We will keep you abreast of any changes in the federal regulations regarding overtime pay as they develop.

Chad Hopkins

 

 

 

 

W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

 

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