Tomorrow is “FMLA Day.” Is your company ready?

Tomorrow, January 16, is FMLA Day – the day the new FMLA regulations take effect. If a business is covered by the FMLA (it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year), there are certain steps it should be taking to get ready for the changes.

1. Post the Revised FMLA Poster.

2. Distribute a revised FMLA Policy or make appropriate handbook amendments.

3. Take out of circulation old FMLA forms (Employer Response to Employee Request for FMLA Leave and Certification of Health Care Provider, for example), which are no longer legal to use.

4. Put into use the new form to notify employees of their FMLA eligibility, to be used within five business days of an employee’s request for FMLA leave or the employer’s other notice of the need for leave.

5. Put into use the two new medical certification forms, one for an employee’s own serious health condition, and the other for an employee’s family member’s serious health condition.

6. Put into use the new FMLA designation notice, which must be given to an employee within five business days after an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA.

7. Make sure that the appropriate forms are being used for military family leave – one for the certification of qualifying exigency and one the certification for a serious injury or illness of a covered servicemember.

8. Train all HR personnel, managers, and supervisors on the mechanics of the new FMLA regulations.

For more information on the key FMLA changes, you can review these earlier posts:

• Summary of new FMLA Regulations: 10 Key Changes.

• Summary of new FMLA Regulations: Military Family Leave.

• New FMLA Regulations: What do they mean to notice and designation obligations to employees?

Hooters sued for not hiring men

An alleged rejected male job applicant for a food server position at a Corpus Christi, Texas, Hooters has filed a class action sex discrimination lawsuit against the restaurant chain. He claims that Hooters refuses to even consider men for food server positions. According to the lawsuit:

Hooters attempts to circumvent the law by referring to its waiters as “Hooters Girls.” Hooters contends that since its food servers are Hooters Girls, males may not be employed in that role. Hooters is incorrect, since, in the stores, Hooters Girls’ primary function is to serve food and drinks. A male or female can perform this function and, therefore, Hooters is not entitled to the defense of bona-fide occupational qualification.

Because it is discriminatory on its face to refuse to hire an entire gender, Hooters will certainly rely on the “bona fide occupational qualification defense.” A BFOQ is a defense to discrimination based on age, sex, religion, or national origin (but, importantly, not race discrimination). It permits discrimination where the protected class (such as sex) is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots.

This case will largely hinge on the perception of the real nature of Hooters’ product – does Hooters sell sex or wings? If it’s the former Hooters win, the latter the plaintiff wins. The reasonable view is that Hooters sell wings by using the sex appeal of its servers. If this view prevails, then the plaintiff is probably out of luck.

If I was representing Hooters, I would advise it to give serious consideration to offering the plaintiff a position under the same conditions as it hires all of its female food servers. He would have to wear the same uniform and show off the same cleavage. His acceptance would show his lack of qualification, and his refusal it would show his true motivation for filing suit, while also likely cutting off his economic damages.

[Hat tip: Courthouse News Service, via Above the Law]

Do you know? “Comp” time in lieu of overtime

Do you know? Unless you are a state or local government, it is illegal to provide “comp” time in lieu of time-and-a-half for hours worked in excess of 40 in a work week.

Federal law requires that all non-exempt employees receive an overtime premium of one-half the regular rate of pay for all hours worked in excess of 40 in a given work week. To save on wages, some employers seek to provide overtime as “comp” time to employees. In other words, instead of paying an employee time-and-a-half for overtime worked, the employee would be paid the regular straight time rate, and receive an additional half-hour of paid time off to be banked and used in the future. Under the FLSA, this practice is illegal for private employers. It interferes with employees’ right to be paid their overtime premium.

For state and local governments, the FLSA has a specific provision that allows for the payment of comp time in certain circumstances, such as where it is provided for in a collective bargaining agreement or other agreement between the employer and employee.

For most employers, though, implementing a comp time program to skirt overtime obligations is a huge wage and hour no-no.

What do the recent ADA amendments really mean to employers?

A lot of ink has been spilled about the nuts and bolts of the amendments to the ADA. The amendments make some key fundamental changes to various definitions in the statute, such as to the definition of disability. So, for example, mitigating measures are no longer to be taken into consideration when determination whether an individual has a “disability.” (For more information on the ADA Amendments Act, see House overwhelmingly votes in favor of ADA Amendments Act of 2008).

Much of the ADA Amendments Act, though, is legal minutiae that may be of interest to employers litigating ADA lawsuits, but of little interest to employers running their businesses on a daily basis. Provided that job descriptions are up to date, supervisors are trained on reasonable accommodations and interactive processes, and employees are receiving appropriate accommodations, employers’ day-to-day experiences under the ADA should not change all that much.

So, what then will change? For businesses, the most significant change will be in the cost of defending ADA lawsuits. Most agree that the changes to the definition of disability will make it harder for employer to win dismissals of ADA cases on summary judgment. Because fewer cases will be summarily dismissed, more cases will go to juries for resolutions. This higher incidence of jury issues in ADA cases will increase both defense costs and settlement value in these cases. Because of the potential for increased costs, businesses should be prepared to be extra-vigilant in their handling of employees with potential disabilities.

WIRTW #61

What I’m Reading returns after an extended holiday break.

To follow up on my post from earlier this week on the Ledbetter Fair Pay Act, Michael Moore’s Pennsylvania Labor & Employment Blog comments on the record retention nightmare that this law would create for employers. Michael also has some good thoughts on compliance with the ADA Amendments Act.

In the wake of Boston College firing its head football coach after he accepted an interview with the New York Jets, Gruntled Employees has some thoughts on employee loyalty.

The Workplace Prof Blog reports on a recent NLRB decision that found an unfair labor practice from an attorney’s deposition questions.

With tongue firmly planted in cheek, LaborPains offers 10 New Year’s resolutions for labor union officials.

Where Great Workplaces Start gives us another list, the top 5 ways to be an HR hero in 2009.

The Cleveland Law Library Weblog reminds everyone that as of 1/1/09, Ohio’s minimum wage increased to $7.30 per hour.

Overlawyered brings the story of four Piqua, Ohio, employees who are suing their co-workers for their share of a $207 million Mega-Millions payout. Their claim: “The four said they were out of the office and unavailable to contribute to the office pool for the Dec. 12 drawing but allege an oral agreement that winnings would be shared whether workers happened to be around to contribute or not.”

The Word on Employment Law with John Phillips reminds us that some people simply have too much time on their hands. The evidence, an EEOC complaint alleging religious discrimination stemming from an employee’s use of “Merry Christmas” instead of “Happy Holidays.”

The ABA Journal reports on a Hooters Waitress, fired for having visible bruises courtesy of some domestic abuse, who won her unemployment claim.

The Delaware Employment Law Blog asks a very important question: Why don’t employers care about employees’ internet use?

Jottings By An Employer's Lawyer compares whether recession juries are good or bad for employers. I agree with Michael that large jury awards are usually fueled by anger against the employer and not sympathy for the employee. If this is true, then lawyers picking juries for the foreseeable future will want to try to weed out those potential jurors who have been affected by the recession and harbor anger against corporations as a result.

Maybe you’ve heard, but Wal-Mart recently settled almost all of its pending 76 wage and hour class actions for a staggering $640 million. The Wall Street Journal’s Law Blog suggests that Wal-Mart might have been motivated the Employee Free Choice Act and ponied up as a preemptive strike against unionization.

Meanwhile, World of Work argues that the Employee Free Choice Act may not be as done of deal as some other commentators are suggesting.

Another hot legislative issue, family and caregiver issues, will receive special attention during President Obama’s administration, according to Corporate Voices for Working Families.

Finally, the FMLA Blog reports on a case in which the court held that an employer’s honest suspicion of employee fraud justified its insistence for a second medical opinion.

Five “must haves” for your employee handbook

I’m in the process of drafting an employee handbook, which got me thinking – what are the policies that every handbook absolutely must contain? I came up with a list of the top five “must have” policies.

1. At-will employment disclaimer. I can’t imagine anything worse than an employee being able to successfully claim that an employee handbook creates a contract with the employer, or provides something on which the employee can reasonably and justifiably rely. This disclaimer should be in writing, both in the handbook and on a receipt that employees sign and is placed in their personnel files.

2. Anti-harassment. It’s impossible to take advantage of the Faragher-Ellerth affirmative defense for harassment liability without a policy of which employees can avail themselves.

3. No-solicitation. In light of the implications of the Employee Free Choice Act, it is vitally important to safeguard against non-business uses of company property. Any non-solicitation policy should cover written and oral solicitations, in addition to e-mail and computer systems.

4. Technology. A comprehensive technology policy guards against improper uses of e-mail and computer systems, limits personal uses of company property, tempers employees’ privacy expectations, and protects against potential harassment liability. A very versatile policy that no business should be without.

5. FMLA. If your company is covered by the FMLA, it is required to have an FMLA policy. The new regulations clarify this obligation.

Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency

According to Monday’s New York Times, Congressional Democrats are looking to fast-track the Lilly Ledbetter Fair Pay Act. This should not come as any surprise, given Ms. Ledbetter’s prominent speaking position at last summer’s Democratic convention.

Recall that in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled that in pay discrimination cases the federal statute of limitations begins to run when the pay-setting decision is made:

Current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

According to the Court, its narrow reading of the statute of limitations “reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” Or, at least prior Congresses, as this Congress will certainly pass the Ledbetter Fair Pay Act.

This law will provide that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. 

Businesses should brace themselves for longer statutes of limitations for pay discrimination claims. Once the Fair Pay Act becomes law, it will be more difficult for companies to know at what point in time a pay decision can no longer be challenged. This law’s Congressional supporters have spoken of the need for fairness. Fairness, however, works both ways, both for employees and employers. A perpetual statute of limitations for pay discrimination claims fosters a perceived fairness for the former at the expense of the latter.