Hair Trigger: When are Employee Notice Provisions Triggered under the FMLA?

It can be hard to know when an employee is invoking rights under the Family and Medical Leave Act (“FMLA”). Every employer wants FMLA-requested leave to come in the form of 30 days advance notice, filed in the appropriate manner pursuant to company policy. However, a triggering event for FMLA leave can come from something as simple as an employee asking for a day off for medical reasons. It’s important to understand what the FMLA requires of employers in that instance to fulfill their responsibilities.

Under the FMLA, an employer must notify the employee of her or his eligibility to take FMLA leave if the employer “acquires knowledge that the leave may be for an FMLA-qualifying reason.”[1] Did you catch that? The word “may” is the issue here. The employee doesn’t have to explicitly request the leave – the knowledge standard for the employer rests on a single word that opens the door to what amounts to making educated guesses about an employee’s need for time off.

Courts have differed on exactly how this provision applies. In the Sixth Circuit case Gipson v. Vought Aircraft Industries, an employee who had an underlying heart condition for which he had previously received FMLA leave did not invoke FMLA rights when saying he had a headache and had to gSick Woman Sleeping In Bedroomo home for his medicine. In Willis v. Coca-Cola, the Fifth Circuit found that an employee who was terminated due to violating an attendance policy did not provide information sufficient to invoke FMLA leave rights when she called in sick while pregnant without informing the employer that the illness was due to the pregnancy. In the more recent case of Munoz v. Nutrisystem, Inc., however, the U.S. District Court in the Eastern District of Pennsylvania found that an employee who asked for time off because of an issue with her neck WAS entitled to the protections of FMLA. The court found that the employer was well aware of the employee’s ongoing medical issues to a prior car accident.

The takeaway here is that employers should err on the side of a caution. Employers should always give the employee the benefit of the doubt in any situation that could trigger FMLA leave rights. Notice of these rights must be provided within five business days, so employers should make this determination and provide the necessary notice as quickly as practicable.

If you have any more questions about your responsibilities as an employer under the FMLA, don’t hesitate to contact the attorneys at McBrayer for guidance.

[1] 29 CFR 825.300(b)(1)

Cindy EffingerCynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mmlk.com or (502) 327-5400.

Leave a comment

What Employers Can (Probably) Expect from the FLSA Overtime Exemption (Yet to Be) Proposed Rules

With apologies to Tom Petty, with regard to upcoming proposed regulations under the Fair Labor Standards Act set to increase the overtime exemption salary, the waiting is the hardest part. Employers everywhere will likely experience some budgetary change to comply, but it’s hard to know exactly what that change will be. At the same time, knowing what may be coming down the pike can only prepare employers more for how to handle the final regulations when they come into effect.

The genesis of the forthcoming regulation proposals came when President Obama issued an Executive Order to the Secretary of Labor in March of last year to update the regulations regarding overtime exemptions. The White House cited the erosion of the 40-hour workweek coupled with the failure to update the salary threshold to keep current with inflation as grounds for the order. The administration then released the Semiannual Regulatory Agenda, stating that the proposed rulemaking would take place in November of 2014. Three months post-deadline with no rules and it’s looking like even slightly pessimistic appraisals of proposed rules appearing in the first quarter of 2015 might be a tad off.Daily Time Record With Blank Payroll Time Sheet

What we do know is that the current salary exemption of $23,000 (or $455 a week) is expected to at least double. That means that an entire swath of employees who make between $23,000 a year and $56,000 a year will now be subject to overtime pay requirements, regardless of their duties. Employers will need to evaluate just how many employees this will affect and begin budgeting for the eventuality. Not only will the added overtime pay be a necessary expense, the cost of evaluating affected employees should be factored in – it may be quite expensive to conduct an internal audit of FLSA classifications.

Employers should also plan for the exemption for executive, administrative or professional roles to become somewhat more constricted, as many commentators feel that regulations regarding these roles might start to track similar regulations in other states. Those states have a minimum threshold for the amount of an employee’s time that must be performed in a “white collar” role to continue to be exempt.

As to when employers can expect to comply, there’s a bit a silver lining. The rules have to be proposed still, the proposed rules will have a public comment period of at least 30 days, the Department of Labor would have to consider the comments, then the final rule would be then be written, approved and enacted. All told, the process would take at least three months, and likely longer, once the proposed rule drops. We wait with bated breath.

Cindy EffingerCynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mmlk.com or (502) 327-5400.

Leave a comment

This Party is BYOD, Part Two

The discussion in the last post focused on reasons for allowing BYOD in the work place and some traps to watch out for, which continues below.

Another pitfall that might arise in a BYOD context pertains to the nature of the information on the device itself. In addition to proprietary information of the company, certain other information is subject to additional rules and regulations. For instance, HIPAA requirements would apply to any employee devices that might be used to transmit patient information or data. Be aware of the consequences of data breach, and make sure BYOD policies in a health care context appropriately reach these topics. Certain information possessed by government contractors with specific clearances could also cause significant headaches for those without a sufficiently robust BYOD policy.

What will ultimately separate the wheat from the digital chaff is the adoption of a strong BYOD policy that provides guidance to both employer and employee on both the acceptable and expected use of personal devices in and out of the workplace.

The first place to start with a BYOD policy is to clarify the role of the personal device and the rights of both employer and employee. For instance, it may be important for the employee to know that the information on their devices is discoverable when the employer becomes embroiled in a lawsuit. The employer will most likely decide to reserve some rights to monitor, access and even wipe parts of the device to protect sensitive information, if necessary. The employee should also be reasonably informed of her or his rights pertaining to her or his own device should the empMobile devicesloyer have to take measures to protect employer data on the device. Clarity in defining these rights and obligations is of crucial importance.

The next step in crafting a coherent BYOD policy is to decide on the goals of such a policy. Is it merely a cost-cutting measure? Is it just a response to an influx of personal devices? Some policies fail from being overbroad, so it’s important to hone in on exactly what the goals of the employer are in bringing BYOD online. What resources will the employee have access to remotely? How should personal devices be used most effectively? Where could the business and personal use of the device dovetail and possibly create conflict? Tailor your BYOD policy to the anticipated usage of the device in furtherance of company goals.

Next, clearly delineate who pays. While BYOD is seen as a cost-cutting measure, some employees may balk at the idea of conducting company business on their own dime. Employee-reimbursement policies will become more prevalent over time as BYOD adoptions take hold, so it’s important to clarify where each party stands financially.

Finally, a strong BYOD policy will contain provisions on what will happen with the device if the employee finds him- or herself terminated. How will sensitive company data be removed? Who oversees the process?

A strong BYOD policy in the beginning will save some strong headaches down the road as employees become more and more connected to the workplace through personal devices. For more information on BYOD policies and other technological issues in the work place, please contact the attorneys of McBrayer.

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

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

Leave a comment

This Party is BYOD, Part One

The word you’re looking for is “ubiquity.” It describes the near-total assimilation of technology into every aspect of our lives. The words “cell phone” are falling by the wayside as the words “smart phone” take their place, and soon enough the word “phone” might be dropped altogether as a relic of a time when people used them primarily (and ever so quaintly) for actually talking to each other. These relatively recent smart devices are upending the traditional separations between work and home, with uncertain results. For some employers, “bring your own device” (“BYOD”) is considered a boon, allowing employees to stay connected to the workplace at all times through the comfort and convenience of their personal devices. For others, BYOD could be a nightmare, with IT advisory company Gartner calling it, cheekily, “a disruptive phenomenon where employees bring non-company IT into the organization and demand to be connected to everything – without proper accountability or oversight.”[1] Chances are good that the true answer might be a little bit of both as lines continue to blur across the wirelessly-connected workforce. Gartner estimates that as many as 90% of workplaces will have some aspect of BYOD in place by 2017. We’ll explore the reasoning behind BYOD and the pitfalls that can accompany it before delving into what makes for a strong BYOD policy.

To begin, it’s important to understand the reasons for allowing BYOD at all. The most obvious reason is the direct benefit of a reduction in cost of investment in the devices themselves. An employee who accesses company email Technology News On Apple Ipad Airor takes business calls on her or his own device saves the employer the cost of purchasing a device for the employee for the same purpose. The other upside to this is that an employee may be far more likely to access a personal device and have it on their person at all times than a company device for purely company purposes. If the employer doesn’t reimburse the employee for business conducted on personal devices with added stipends for data or voice plans, those are more ongoing costs savings for the employer. Another reason for allowing BYOD is a little less cheery – you can’t really stop it. These devices are on employees at all times, with the employees reading company emails, taking calls, accessing networks – it’s better to plan for the eventuality rather than lament the failure of a zero-tolerance policy.

There are also multiple pitfalls from a purely employee conduct standpoint to avoid with BYOD in the mix. The biggest concern is security – what happens when an employee misuses or loses a device that has sensitive proprietary information? Even if the employee used the device for email alone, chances are good that valuable information is contained within. Malware on an employee’s device could do harm to a company by logging an employee’s use of the device that then sends that information back to cyber criminals. Non-secure cloud storage could be used to store important employer documents. The employee could use the device on an open network, exposing the device and all the information stored in it. Finally, the employee could just flat-out lose the device – and all the sensitive information inside, as well as access to the company’s resources.

Be sure to view the next post on Wednesday for more pitfalls of BYOD, as well as some best practices for BYOD policies.

[1] Gartner. http://www.gartner.com/technology/topics/byod.jsp (last accessed on January 20, 2015)

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

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

Leave a comment

OSHA’s New Reporting Requirements Will Not Apply In Kentucky

In September, we told you that the U.S. Department of Labor had published its final rule amending the federal Occupational Safety and Health Administration’s (OSHA) reporting and recordkeeping regulations.  The new rule revises the reporting requirements regarding severe injuries and updates the list of industries partially exempt from recordkeeping requirements established in 29 CFR 1904.   As we explained, the new requirements go into effect in federal jurisdictions on January 1, 2015. However, since Kentucky operates an approved state plan, the new reporting requirements do not apply to employers in the Commonwealth.

 

Safety Inspector ChecklistIn 2006, Kentucky completely revamped its reporting regulation, 803 KAR 2:180. The state requirements differ from those in the current federal regulation, but are similar to the ones in the new rule. In order to maintain its state plan approval, Kentucky’s occupational safety and health program, KOSH, must remain at least as effective as the federal. Accordingly, Kentucky’s Occupational Safety and Health Standards Board will have to compare the state’s current reporting regulation with the new federal one to determine if any changes need to be made. Federal OSHA requires state plans to act on new federal standards within six months, so any changes will have to be made at the Board’s May 2015 meeting.

 

 

Here is a reminder about what Kentucky employers must do to report fatalities and injuries:

  • Report the death of any employee or the hospitalization of three or more employees by calling the Kentucky Labor Cabinet at 502-564-3070 within eight hours. If no one is available to speak with in Frankfort, call 1-800-OSHA (1-800-321-6742).
  • Report an amputation or hospitalization of fewer than three employees by calling the Labor Cabinet within 72 hours of the incident. An amputation means an injury in which a portion of the body including bone tissue is removed.
  • The clock starts for reporting from the time the incident is reported to the employer, the employer’s agent, or another employee.

Watch this space for information about whether Kentucky decides to change its reporting regulation. If you have questions about any OSHA recordkeeping or reporting requirement, contact counsel for advice.

Kembra Sexton Taylor

 

 

 

 

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

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

 

Leave a comment

U.S. Supreme Court Decision in Amazon Worker Security Screening Case is Clear Victory for Employers

Gavel on court desk

 

 

 

Last week, the U.S. Supreme Court ruled unanimously against workers who had sued the agency that provided temporary staffing for Amazon warehouses in Nevada seeking compensation for time spent waiting to go through security screening at the end of the workday. The workers alleged that such screenings could take up to 30 minutes. Amazon disagreed, contending that “employees typically walk through security with little or no wait, and Amazon has a global process that ensures the time employees spend waiting in security is less than 90 seconds.”

Writing for the Court, Justice Clarence Thomas said that the screenings were not “integral and indispensable” to the workers’ jobs, which involved retrieving products from warehouse shelves and packaging them for delivery to Amazon’s customers. Therefore, Integrity Staffing Solutions was not required to pay for the screenings. The Supreme Court overruled the 9th Circuit Court of Appeals, which held that the screenings were for the company’s benefit and a necessary part of the workers’ jobs.

The decision centered on an interpretation of the Portal-to-Portal Act of 1947, the law that amended the Fair Labor Standards Act to define the beginning and end of the workday. Congress passed the Act in response to a flood of litigation requiring pay for a wide range of work-related activities. In 1956, the Supreme Court held in Steiner v. Mitchell that employers were required to pay only for tasks that were an “integral and indispensable part of the principal activities for which covered workmen are employed.”

Justice Thomas declared that the Court of Appeals had “erred by focusing on whether an employer required a particular activity.” Instead, the inquiry should be whether the activity “is tied to the productive work that the employee is employed to perform.” Justice Thomas went on to identify instances in which other activities some employees engage in, such as preparing tools or donning and doffing safety equipment, would qualify for payment.

Remarkably, all the members of the Court agreed with the result, although Justice Sotomayor, joined by Justice Kagan, issued a brief concurrence reaffirming the narrow basis for the ruling and emphasizing that “preliminary or postliminary” activities were not compensable under the Portal-to-Portal Act.

The Amazon decision will have far-reaching impact on other litigation. Approximately 13 class action lawsuits have been filed against Amazon and other companies involving more than 400,000 plaintiffs with hundreds of millions of dollars at stake. If you have any questions about whether certain work-related activities are compensable in light of this ruling, contact your McBrayer employment law attorney.

Kembra Sexton Taylor

 

 

 

 

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

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

Leave a comment

Telecommuting Employees and Unauthorized Overtime – Must the Employer Pay?

Word Cloud Telecommuting

 

 

 

In today’s ever-increasing digital world, more employers than ever are turning to telecommuting to help reduce overheard and increase morale of employees. Importantly, however, state and federal laws apply equally to employers and employees, regardless of whether they work on-site or remotely. Among the most common issues and missteps which affect employers with telecommuting employees are wage and hour laws and, more specifically, overtime laws.

All non-exempt employees must be paid for all time worked, regardless of whether the work was performed on-site or remotely. Importantly, this rule typically applies regardless of whether the employer authorized the performance of the work or not. If, for instance, an employee works more than 40 hours per week at home, the employer must pay the employee overtime wages for all time worked – even if the employer did not authorize the employee to work overtime.

As a result, it is imperative that the employer have a lawful and enforceable policy with respect to overtime, particularly suitable for employees who work remotely. Such a policy should be clear that any overtime must be authorized in writing, and that any overtime worked without authorization will subject the employee to disciplinary action. Note, however, that if an employee violates this policy by working overtime, that employee remains entitled to receive overtime wages, but an employer should determine whether to retain an employee who consistently violates company policy.

Businessman working on a laptop.

 

 

 

 

Before approving any telecommuting policy, an employer should take care to ensure that its policy is not only lawful, but also enforceable. While telecommuting may be the solution to many employment-related issues, it is only as effective as the policies which govern telecommuting employees. Our employment attorneys at McBrayer can help ensure that our clients’ needs are met through appropriate telecommuting policies.

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.

Leave a comment

Follow

Get every new post delivered to your Inbox.

Join 31 other followers