WIRTW #57

Two topics dominate the employment law headlines this week – the new FMLA regulations and the continued debate over the prospects for the Employee Free Choice Act. I’ve covered the former in depth earlier in the week (here and here). The following blogs all wrote this week on the latter, the EFCA: Today’s Workplace, Jottings By An Employer's Lawyer, World of Work, and Work Matters. In related news, Overlawyered happily reports that employment lawyers are busier than ever.

As always seem to be the case, we have a couple of interesting wage and hour posts: George’s Employment Blawg on wage and hour implications for telecommuters, and the Workplace Prof Blog on whether time spent booting up one’s computer is considered compensable work time.

The Trade Secrets Blog reports on a case before the Ohio Supreme Court on whether certain customer-related information qualifies as a trade secret.

The MMMG Law Blog discusses a 10th Circuit case, which may be the first of its kind to apply the Supreme Court’s Holowecki standard of what constitutes a “charge” of discrimination.

The Delaware Employment Law Blog gives some helpful guidance on how to properly make deductions from a salaried employee’s pay without jeopardizing an FLSA exemption.

BLR’s HR Daily Advisor properly advises that when management hears a rumor about inappropriate or discriminatory workplace conduct, it should investigate and not ignore it.

Finally, the Toronto Employment Lawyer points out a key difference between American and Canadian employment law – apparently north-of-the-border management-level employees have an affirmative duty to provide a reasonable notice of resignation.

Hidden cameras pose potential problems

The D.C. Circuit is considering an appeal by 16 former Anheuser-Busch employees who were disciplined or fired after the company installed hidden cameras without first bargaining with their union. Among the violations caught on video – sleeping on the job, peeing on the roof, and smoking marijuana. It is fairly settled law that in a unionized setting, the installation of security cameras is a mandatory subject of bargaining. Thus, Anheuser-Busch violated federal labor law by unilaterally installing the cameras. At issue in the appeal is whether an employer’s own violation of labor law should require it to ignore the employees’ misconduct.

The union argues that the employer should not receive any benefit from its misconduct. The employer argues that the remedy for its unfair labor practice is to remove the cameras, and that the employees should not receive a free pass for their misconduct. I’m curious to see how this case comes down, because both sides have compelling arguments, although I think the employer has the stronger position. It could have discovered the misconduct without the cameras and taken the same actions against the employees. The cameras were coincident to, but not the cause of, the discipline.

In a non-union setting, the use of hidden cameras pose their own unique problems. First, to avoid any potential illegal wiretap issues, cameras should be video-only. Surreptitious voice recordings could violate state and federal wiretap laws. Secondly, cameras should not be placed in any areas in which employees have an expectation of privacy. Bathrooms and locker rooms are per se off limits. Work areas, lunch rooms, smoke holes, and other areas in which employees cannot reasonably expect to have any privacy are all fair game for surveillance cameras.

[Hat tip: The Blog of LegalTimes]

Summary of new FMLA Regulations: Military Family Leave

Yesterday, I examined 10 key changes in the new FMLA regulations to the legacy FMLA provisions. Today, I’ll break down the new regulations’ effect on Section 585(a) of the National Defense Authorization Act for FY 2008. That provision amended the FMLA to provide eligible employees working for covered employers two important new leave rights related to military service: military caregiver (or covered servicemember) leave and qualifying exigency leave.

Military Caregiver Leave (also known as Covered Servicemember Leave):

1. Eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty.

2. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.

3. When leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his or her request for leave with a sufficient certification, which includes certain necessary military and medical information support the request for leave.

Qualifying Exigency Leave:

1. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation.

2. The Department’s final rule defines qualifying exigency as any of the following categories for which employees can use FMLA leave: i)Short-notice deployment; ii) Military events and related activities; iii)Childcare and school activities; iv) Financial and legal arrangements; v) Counseling; vi) Rest and recuperation; vii) Post-deployment activities; and viii) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

3. Employers will be able to require an employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty (or has been notified of an impending call or order to active duty), and the dates of the covered military member’s active duty service.

4. Each time leave is first taken for a qualifying exigency, an employer may require an employee to provide a certification that sets forth information pertaining to the exigency.

Summary of new FMLA Regulations: 10 Key Changes

On Monday, November 17, 2008, the Department of Labor (DOL) published its final rule to implement the first-ever amendments to the Family and Medical Leave Act (FMLA). The new regulations update and clarify certain key issues under the FMLA, in addition to providing guidance on the law’s recent coverage changes for military family leave.

These changes become effective January 16, 2009. A full copy of the new regulations is available for download from the DOL.

Today begins a three-part series on these new regulations, beginning with the top 10 substantive changes to the old FMLA scheme. Tomorrow, I’ll take a look at the military leave regulations, and next Monday I’ll provide my thoughts on the pros and cons of the new regulations.

The regulations change the FMLA in the following key areas:

Serious Health Condition:

1. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider,” which now must take place within seven days of the first day of incapacity.

2. Another definition of serious health condition involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The new regulations clarify that the first visit to the health care provider must take place within seven days of the first day of incapacity.

3. The new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Light Duty: 

1. Time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement.

2. An employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).

Substitution of Paid Leave: FMLA leave is and remains unpaid, although employer can require that employees use any and all paid time off (sick days, vacation, personal days, etc.) concurrently with FMLA leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FMLA leave must follow the same rules of the employer’s policy that apply to other employees for the use of such leave.

Perfect Attendance Awards: Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave, as long as it treats employees taking non-FMLA leave identically.

Employer Notice Obligations:

1. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook or otherwise upon hire); an eligibility notice and a rights and responsibilities notice (given when leave is requested); and a designation notice (given when leave is designated as FMLA-leave).

2. The new regulations extends the time for employers to provide these various FMLA notices from two business days to five business days.

All of these forms are available from the DOL in the new regulations.

Employee Notice: The new regulations provide that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

Medical Certification Process

1. During the medical certification process, the employer will be permitted to speak directly to the employee’s health care provider, so long as the employer’s contact person is a health care provider, human resource professional, a leave administrator, or a management official. It can never be the employee’s direct supervisor.

2. Employers may not ask health care providers for additional information beyond that required by the certification form.

3. The DOL will provide separate medical certification forms for the employee and covered family members. The forms will also allow, but not require, health care providers to provide a diagnosis of the patient’s health condition as part of the certification.

4. If an employer deems a medical certification to be incomplete or insufficient, the employer must specify, in writing, what information is lacking, and give the employee at least seven calendar days to cure the deficiency.

5. Employers may request a new medical certification each leave year for medical conditions that last longer than one year.

6. In all cases, employers are now permitted to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness-For-Duty Certifications:

1. An employer may require that the certification specifically address the employee’s ability to perform the essential functions of the job.

2. Where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work from intermittent leave.

The Ragsdale Decision/Penalties: Ragsdale v. Wolverine World Wide  ruled that an employer’s failure to properly designate leave as FMLA leave cannot result in the grant of additional leave to an employee without a specific showing of harm to the employee from the missed designation. The new regulations clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable for the additional FMLA time.

Waiver of Rights: Taylor v. Progress Energy held that no FMLA waiver, whether retrospective or prospective, can be valid unless first approved by a court or the DOL.The new regulations clarify that employees may voluntarily settle or release their FMLA claims based on past conduct without court or agency approval. Prospective waivers of FMLA rights continue to be prohibited absent prior approval.

Do you know? Compensation for travel time

Do you have employees that travel for work? Do you know that only certain travel time may be considered compensable and therefore paid for? As a general rule, time spent traveling from home to work and back again to home does not have to be compensated.

Like all rules, however, there are exceptions.

1. Time spent by an employee traveling as part of the principal work activity, such as travel from job site to job site during the workday, or travel between customers, is counted as hours worked and must be paid.
2. Travel that keeps an employee away from home overnight must also be compensated, but only when the travel time occurs during an employee’s normal workday. Thus, if an hourly employee's normal work day runs from 8 am to 5 pm, only out-of-town travel during those hours must be paid. This rule applies whether the travel occurs on a regular work day or a normal day off. So, if the same employee travels during regular work hours on a Sunday, but regularly has Sunday off, the time must still be paid.
3. Out-of-town travel that is completed all in one day receives different treatment. The employee is compensated for the travel from home to the out-of-town worksite, less the amount of time it would have taken the employee to drive to work during a regular workday. The rationale is that the employee should not have to be compensated for the time he or she would have spent traveling to and from work on a regular work day.

The swift hand of justice

Next time you consider whether you really want to litigate a case, consider the following case study.

On Friday, I reported about a case in which a jury vindicated a city administrator whose secretary accused him of sexual harassment for staring at her breasts. She filed her case in December 2002. In July 2006, the trial court dismissed the lawsuit on the employer’s motion for summary judgment. In February 2008, the court of appeals reversed that ruling. The trial was finally held on October 31, 2008, nearly six years after the case was originally brought. On Point reports this saga has cost the employer nearly $400,000 to defend. And, it’s not over yet. The plaintiff has filed a motion for new trial, and when that is denied, she’ll likely go back to the court of appeals. Everyone had their day in court, but at what cost?

ALERT: New FMLA regulations to be published Monday

The title says it all. Once I've had a chance to digest the new regs (they're over 700 pages) I'll have more to say.