Establishing Paid Sick Leave for Federal Contractors

A Proposed Rule by the Labor Department on 3/14/2016

Published in the Federal Register on 3/14/2016, this document extends the period for filing written comments until April 12, 2016 on the proposed rulemaking:  Establishing Paid Sick Leave for Federal Contractors. The Notice of Proposed Rulemaking (NPRM) was published in the Federal Register on February 25, 2016. The Department of Labor (Department) is taking this action in order to provide interested parties additional time to submit comments.

A Proposed Rule by the Labor Department on 2/25/2016

This rule proposes regulations to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, signed by President Barack Obama on September 7, 2015, which requires certain parties that contract with the Federal Government to provide their employees with up to 7 days of paid sick leave annually, including paid leave allowing for family care. Executive Order 13706 explains that providing access to paid sick leave will improve the health and performance of employees of Federal contractors and bring their benefits packages in line with model employers, ensuring that Federal contractors remain competitive employers and generating savings and quality improvements that will lead to improved economy and efficiency in Government procurement.

The Executive Order directs the Secretary of Labor to issue regulations by September 30, 2016, to implement the Order's requirements. This proposed rule therefore defines terms used in the regulatory text, describes the categories of contracts and employees the Order covers and excludes from coverage, sets forth requirements and restrictions governing the accrual and use of paid sick leave, and prohibits interference with or discrimination for the exercise of rights under the Executive Order. It also describes the obligations of contracting agencies, the Department of Labor, and contractors under the Executive Order, and it establishes the standards and procedures for complaints, investigations, remedies, and administrative enforcement proceedings related to alleged violations of the Order. As required by the Order and to the extent practicable, the proposed rule incorporates existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act, the Service Contract Act, the Davis-Bacon Act, the Family and Medical Leave Act, the Violence Against Women Act, and Executive Order 13658, Establishing a Minimum Wage for Contractors.

The comment period for the proposed rule ends on 3/28/2016.

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Executive Order -- Establishing Paid Sick Leave for Federal Contractors

September 7, 2015

President Obama signed an Executive Order establishing Paid Sick Leave for Federal Contractors.  Section 1 of the Policy states, "This order seeks to increase efficiency and cost savings in the work performed by parties that contract with the Federal Government by ensuring that employees on those contracts can earn up to 7 days or more of paid sick leave annually, including paid leave allowing for family care." 

The Executive Order requires federal contractors to offer their employees up to seven days of paid sick leave per year.  The President is calling on Congress to pass legislation expanding paid sick and family leave, and he will announce new Department of Labor rules giving federal contract workers new tools to demand equal pay.

EXPANDING SICK LEAVE AND OTHER ACTIONS FOR WORKERS
1.      Guaranteeing Sick Leave for Federal Contract Workers: While roughly 60 percent of workers are eligible under the Family and Medical Leave Act (FMLA) to take unpaid, job-protected leave for family and medical reasons for more extended absences, many workers are without coverage for shorter-term health care needs and others may not be able to afford to stay home sick if it means the loss of pay.
2.      Calling on Congress to Expand Leave to Millions More Workers: In addition to issuing Monday's Executive Order, the President is renewing his call for Congress to pass the Healthy Families Act, which would require all businesses with 15 or more employees to offer up to 7 paid sick days each year.  He is calling for the passage of federal legislation guaranteeing every working American paid family and medical leave to care for a new child, a seriously ill family member, or their own serious illness.  The Department of Labor is also releasing a report, “The Cost of Doing Nothing ” that explores the costs to workers, families, businesses, and the nation of not taking action to expand paid family and medical leave to millions of workers without it today.
3.      Strengthening Rights to Equal Pay: Women are the primary breadwinners in 40 percent of U.S. children, but the typical woman makes about 78 percent of what the typical man makes – which means less for families’ everyday needs, less for investments in our children’s futures, and, when added over a lifetime of work, substantially less for retirement. The President is announcing that this week the Department of Labor will publish a final rule prohibiting federal contractors from discriminating against employees and job applicants who choose to discuss their compensation.  The rule – issued under an April 2014 Executive Order – does not compel workers to discuss pay. However, it provides a critical tool to encourage pay transparency, and make it easier for workers to recognize pay discrimination and seek appropriate remedies.

Read the Executive Order here
Source: White House Press Release

Staples to pay fired employee $275K in wages, benefits and damages

US Labor Dept. alleged that Staples failed to comply with Family and Medical Leave Act
 
Jeffrey Angstadt didn't want days off to relax. In September 2010 and over the months that followed, the furniture sales executive told his employer, Staples Contract and Commercial, Inc., a subsidiary of Staples, Inc., that he needed to take leave to care for his critically ill wife. While Angstadt was eligible for federal workplace protections for those coping with the illness of a family member, no one at Staples notified him as the law requires.

For the next two years, Angstadt used his personal, sick and vacation days, and worked remotely as needed to balance his work obligations and to care for his wife.

In January 2012, his supervisors decided Angstadt wasn't meeting his job responsibilities, and the company fired him. Angstadt found himself without an income and critical health benefits when both were needed the most. Two months later, an investigation began by the U.S. Department of Labor's Wage and Hour Division district office in Columbia.

Following the investigation, the department then sued Staples in June 2013 for violating the Family and Medical Leave Act in its failure to inform Angstadt of his rights.

As part of a settlement agreement reached with Staples Inc. and Staples Contract and Commercial Inc., the Staples defendants have agreed to pay Angstadt $137,500 in lost wages and benefits, plus an equal amount in liquidated damages. The agreement was reached in a consent decree approved by a federal court.

"When an employee must be away from work to care for a loved one, there are no second chances to get it right," said Wage and Hour Division Administrator Dr. David Weil. "For more than 20 years, the Family and Medical Leave Act has been a critical safety net for working families. It ensures that no one should have to choose between the job they need and the family they love."

"This case shows the department's strong commitment to that principle, and our intention to use all enforcement tools at our disposal, including litigation, to uphold FMLA protections for workers and make sure that all employers operate in compliance with the law and get it right the first time," added Weil.

Angstadt's wife died in 2014.

As a part of the settlement, the company will also promote an enterprise-wide policy for compliance with the FMLA by providing training for human resources and other managerial personnel with respect to FMLA notice and eligibility requirements; post FMLA enforcement posters in the workplace; and investigate and respond to complaints of potential FMLA violations concerning an employee's notice of FMLA rights, including correcting violations when discovered.

Timeline of Key Events:

• March 2007: Angstadt starts work as market manager for Corporate Express in Miami.
• July 2008: Staples purchases Corporate Express. Angstadt continues work as market manager for Staples.
• March 2009: Angstadt transferred to Staples Contract and Commercial's Columbia office.
• September 2010: Angstadt first informed Staples of his desire to take leave to care for wife.
• March 2011: Angstadt selected as a furniture sales executive.
• January 2012: Angstadt is fired.
• March 2012: Wage and Hour Division begins investigation.
• June 2013: Labor Department files suit in U.S. District Court for District of South Carolina.
• May 2015: District Court approves consent decree with the parties' settlement agreement.

The case was litigated by the department's Regional Office of the Solicitor in Atlanta.

Staples Contract and Commercial, Inc. offers business supplies to Fortune 1000 organizations as a subsidiary of Staples, Inc.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Disability Services Company Sued for Discriminating Against Disabled Employees

ValleyLife Failed to Provide Reasonable Accommodations to Disabled Employees, Federal Agency Charges

ValleyLife, a disability support services company, unlawfully discriminated against disabled employees by refusing to provide them with reasonable accommodations in violation of federal law, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today in the United States District Court for the District of Arizona. ValleyLife is an Arizona corporation which provides programs and support services for individuals with disabilities in the greater Phoenix metropolitan area.

According to the EEOC's suit, ValleyLife fired employees with disabilities rather than provide them with reasonable accommodations due to its inflexible leave policy. The policy compelled the termination of employees who had exhausted their paid time off and/or any unpaid leave to which they were eligible under the Family Medical Leave Act (FMLA).

For example, the Commission said that ValleyLife forced out one supervisor, Glenn Stephens, due to his need for further surgery when his FMLA leave was exhausted. ValleyLife did not engage in any interactive process to determine whether any accommodations (including additional leave) were possible, accord­ing to the suit. Stephens had worked for ValleyLife for over ten years at the time of his termination. The suit also alleges that ValleyLife commingled medical records in employee personnel files and failed to maintain these medical records confidential in violation of the Americans with Disabilities Act (ADA).

Such alleged conduct violates the ADA, which protects workers from discrimination based upon disability and requires employers to provide reasonable accommodations to the known physical or mental impairments of disabled employees unless doing so would cause an undue hardship. Moreover, the ADA requires employers to keep employees' medical documents confidential and separate from other personnel records. The EEOC filed suit, EEOC v. ValleyLife, Civil Action No. 2:15-cv-00340-GMS, in U.S. District Court for the District of Arizona, after first attempting to reach a settlement through its pre-litigation conciliation process. The lawsuit seeks lost wages and compensa­tory and punitive damages for the alleged victims, as well as appropriate injunctive relief to prevent discriminatory practices in the future.

"Individuals with disabilities are untapped resources that employers should value and utilize--indeed, this is the essence of ValleyLife's business," said EEOC Phoenix District Office Regional Attorney Mary Jo O'Neill. "It is critical that employers reach out to employees with disabilities to make an informed and accurate evaluation of their ability to work and to provide reasonable accommodations where necessary."

Rayford O. Irvin, district director of the EEOC's Phoenix District Office, added, "Employers have a legal obligation to provide reasonable accommodations unless there is an undue hardship. ValleyLife, of all employers, should understand that."

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Federal job-protected family and medical leave rights extended to eligible workers in same-sex marriages

US Labor Dept. updates Family and Medical Leave Act’s definition of spouse

Workers in legal, same-sex marriages, regardless of where they live, will now have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act to care for a spouse with a serious health condition. The U.S. Labor Department announced a rule change to the FMLA today in keeping with the U.S. Supreme Court ruling in United States v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that interpreted "marriage" and "spouse" to be limited to opposite-sex marriage for the purposes of federal law.

"The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one," said U.S. Secretary of Labor Thomas E. Perez in announcing the rule change. "With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families — without the threat of job loss."

Enacted in 1993, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA's provisions became effective and even more American families will benefit as a result of the rule.

Today's rule change updates the FMLA regulatory definition of "spouse" so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of "spouse" did not include same-sex spouses if an employee resided in a state that did not recognize the employee's same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This "place of celebration" provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Nueces Electrical Co-op pays former employee for Family and Medical Leave Act violations

An employee of Nueces Electrical Co-op in Corpus Christi has received $46,920 in back wages and damages after an investigation by the U.S. Department of Labor’s Wage and Hour Division found the company in violation of the Family and Medical Leave Act.

“The FMLA protects eligible workers from having to choose between work and family care or personal medical leave needs,” said Cynthia Watson, regional administrator for the Wage and Hour Division for the Southwest. “When employees are unlawfully denied leave and their livelihoods put at risk, the potential for harm is great.”

The division’s McAllen District Office found that the employer, a company that provides electrical services to Corpus Christi and surrounding areas, wrongfully advised the employee to retire or face termination of employment for needing leave for an FMLA-qualifying health condition. The employer’s actions forced the employee, who was entitled to receive FMLA job-protected leave, to cash out a 401(k) savings plan, which incurred significant penalties. The employee suffered wage losses, resulting in loan defaults and an inability to pay essential bills.

In addition to the monetary damages, the company neglected to provide proper FMLA notice to the employee. Under the FMLA, a covered employer must notify eligible employees of their FMLA rights and responsibilities and permit employees to take leave as outlined in the FMLA.

Nueces Electrical Co-op has agreed to future compliance with the FMLA and instituted new policies to prevent future violations.

The FMLA allows an eligible employee to take unpaid leave to bond with a newborn, newly adopted or placed child, for their own serious health condition, or to care for a seriously ill child, spouse or parent, without fear of losing their job and with continuation of health care coverage under the same terms and conditions as if the employee had not taken leave. FMLA leave may also be taken for specified reasons related to certain military deployments and to care for a covered service member with a serious injury or illness. An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, an FMLA right. Prohibited conduct includes refusal to authorize FMLA leave for an eligible employee.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Princeton Healthcare Pays $1.35 Million to Settle Disability Discrimination Suit

Hospital Fired Employees After 12 Weeks of Leave, Federal Agency Says

Princeton HealthCare System (PHCS), which operates an inpatient hospital and several outpatient medical facilities, will pay $1,350,000 and will undertake significant remedial measures to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

The EEOC's suit alleged that PHCS's fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the Americans with Disabilities Act (ADA). According to the EEOC, since PHCS's leave policy merely tracked the requirements of the federal Family Medical Leave Act (FMLA), employee leaves were limited to a maximum of 12 weeks. PHCS's policy meant that employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks.

The EEOC filed suit (EEOC v. Princeton HealthCare System, Civil Action No.:3:10-cv-04126) in U.S. District Court for the District of New Jersey after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, approved by U.S. Magistrate Judge Douglas E. Arpert, PHCS is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the ADA may take. PHCS must instead engage in an interactive process with covered employees, including employees with a disability related to pregnancy, when deciding how much leave is needed. In addition, PHCS can no longer require employees returning from disability leave to present a fitness for duty certification stating that they are able to return to work without any restrictions. PHCS also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the ADA to its workforce.

The EEOC will monitor PHCS's compliance with the decree over the next four years and will distribute the $1.35 million to employees who were unlawfully terminated under PHCS's former policy.

"This is the latest in a series of cases challenging unlawful leave policies, and the relief obtained here furthers the EEOC's efforts to reinvigorate the Americans with Disabilities Act following the 2008 amendments," said EEOC General Counsel David Lopez. "While the EEOC is always careful and cautious before resorting to litigation, our efforts here should encourage employers to voluntarily comply with the ADA."

EEOC Senior Trial Attorney Rosemary DiSavino said, "Employers must understand that fixed leave policies, by definition, limit the opportunity for the employee and employer to engage in the interactive process and determine whether leave may be a reasonable accommodation under the federal law."

Robert D. Rose, Regional Attorney of EEOC's New York District Office, added, "This case should send a clear message that a leave of absence is a reasonable accommodation under the law. Policies that limit the amount of leave, even if they comply with other laws, violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit."

Other significant resolutions of EEOC cases involving leave and attendance policies include Interstate Distributor, ($4.85 million nationwide resolution challenging maximum 12-week leave policy), Supervalu ($3.2 million resolution challenging termination of approximately 1,000 employees at the end of medical leave), Sears ($6.2 million resolution challenging automatic termination policy and failure to accommodate employees injured at work) and Verizon ($20 million nationwide resolution challenging "no fault" attendance policy).

Addressing emerging and developing issues under the ADA is one of six national priorities identified by the EEOC's Strategic Enforcement Plan.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Notice of Proposed Rulemaking to Revise the Definition of "Spouse" Under the FMLA

U.S. Secretary of Labor Thomas E. Perez announced today a proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court's decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted "marriage" and "spouse" to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA's provisions became effective and even more American families would be made secure as a result of the proposed rule. 
 
"The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver," said Secretary Perez. "Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families."

The proposed rule would change the FMLA regulatory definition of "spouse" so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of "spouse" only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.

Following the Windsor decision, noting that it was "a victory... for families that, at long last, will get the respect and protection they deserve," President Obama directed the Attorney General to work with the Cabinet to review federal statutes to ensure the decision, including its implications for federal benefits and obligations, is implemented.

For additional information on the FMLA, including information and fact sheets on the proposed revisions, visit http://www.dol.gov/whd/fmla/nprm-spouse. The department encourages all interested parties to view the proposed rule and submit comments at http://www.regulations.gov. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

New FMLA Chief: Enforcement on the Rise

The new DOL FMLA Branch Chief, Helen Applewhaite announced last month that there will be an increased focus concerning employer on-site FMLA compliance audits. To that end, she stated that “2014 would become a pivotal year for FMLA enforcement” and that her department had specifically budgeted for increased on-site investigations in 2014 – with little or no notice to employers in most cases.


Applewhaite is also focusing on systemic FMLA issues and will likely request additional information beyond the intial charge and will cover at least 2 years.
FMLA investigations could include employee interviews, similiar to federal wage and hour reviews.  

This information is intended to be educational and should not be considered legal advice on any specific matter.

DNA Diagnostics Center Inc. settles US Labor Department

Under terms of a settlement agreement, DNA Diagnostics Center Inc. has agreed to pay $25,000 in lost wages and liquidated damages to an employee of the Fairfield-based company to resolve a lawsuit filed by the U.S. Department of Labor for unlawfully denying leave under the Family and Medical Leave Act. The company subsequently fired the employee for exercising her rights under the FMLA to care for her seriously ill 12-year- old niece, for whom the employee was standing “in loco parentis,” or in the place of a parent.

“The settlement of this case is a win for working parents and guardians in America. An employee who has day-to-day responsibility for caring for a child is entitled to the protections of the FMLA, even if the employee does not have a biological or legal relationship with the child,” said George Victory, Wage and Hour district director in Columbus. “The department is committed to protecting workers’ rights under the FMLA and to educating both employers and employees about their rights and responsibilities under the law.”

Under terms of the settlement agreement, DNA Diagnostics will expunge the employee’s record of any disciplinary references. The firm has also been permanently enjoined from violating the FMLA in the future.

The FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

In June 2010, the department issued an Administrator Interpretation clarifying the definition of son and daughter under the FMLA. This interpretation clarified that, under the FMLA, a son or daughter 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. This definition ensures that an employee who assumes the role of caring for a child receives parental rights to family leave, regardless of the legal or biological relationship.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Bradenton Big Lots pays former employee back wages

A Big Lots Stores Inc. store in Bradenton paid a former employee $8,787 following an investigation by the U.S. Department of Labor’s Wage and Hour Division that found the company violated the Family and Medical Leave Act. The Columbus, Ohio-based company terminated the worker’s employment for absences from work that should have been protected as FMLA leave because the employee was taking the time off to care for a seriously ill child.

“This outcome demonstrates the department’s commitment to ensuring that employees are not retaliated against or prevented from exercising their FMLA rights,” said James Schmidt, director of the Wage and Hour Division’s Tampa District Office. “The FMLA became law 20 years ago, giving any employee covered by this act the ability to balance their work life with their own and their family’s health needs without risking their job.”

The investigation, conducted by the division’s Tampa District Office, found that Big Lots failed to properly provide the employee with the required FMLA eligibility and designation notices. The firm then disciplined the employee by writing her up for tardiness and absences. It ultimately fired her for violating the company’s attendance policy, although the time off met the qualifying criteria for the FMLA.

Big Lots agreed to maintain future compliance with the FMLA by changing its internal policy to screen leave appropriately that could be eligible under the FMLA.

The FMLA provides eligible employees up to 12 workweeks of unpaid, job-protected leave due to their own or a family member’s serious health condition and other specified family and medical reasons, with continuation of health care coverage under the same terms and conditions as if the employee had not taken leave. Leave may be taken all at one time, or may be taken from time to time as the medical condition requires. An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Prohibited conduct includes refusing to authorize FMLA leave for an eligible employee.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Houston Ear, Nose & Throat Clinic to pay back wages

Houston Ear, Nose & Throat Clinic LLP has been cited with multiple violations of the Family and Medical Leave Act following an investigation by the Houston District Office of the U.S. Department of Labor’s Wage and Hour Division.

The investigation found that the company violated the FMLA when an eligible employee returning to work, after taking FMLA leave, was not placed in the same full-time position held prior to using the job-protected leave. Instead, the employee was placed in a part-time position which resulted in fewer working hours and without the same benefits held before taking FMLA leave. Under the FMLA, an employee returning to work from FMLA leave is entitled to job restoration to the same or an equivalent position with the same pay, benefits and other employment terms and conditions. This violation resulted in $17,390 in back wages, medical expenses and unpaid monetary benefits due to the employee.

“No employee should have to worry about their job when facing a serious health condition,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. “Coming back to work with the same seniority and benefits following an FMLA-related absence is not an option, it is the law. This employee’s reinstatement and subsequent collection of back wages should send a clear message to other employers that compliance with the FMLA is critical.”

The employer was charged with several additional FMLA violations, including failing to provide the employee with the required notice designating the leave as FMLA; failing to keep the proper records required by FMLA; and failing to have a current FMLA policy reflecting the most recent provisions of the law. The employer agreed to reinstate the employee to the previously held full-time position with the same pay rate and benefits; pay all the back wages due; ensure that all eligible employees taking FMLA leave are properly provided with the required notices; maintain the necessary records; update its written FMLA policy; and conduct FMLA training with its managers.
 
Since 1993, the FMLA has been a major component in the department’s effort to promote work-family balance, providing workplace protections for those living with a serious health condition, or caring for a covered family member with a serious health condition. The FMLA helps to ease the burden that can come with needing time away from work when faced with such an illness.
 
The FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Under certain circumstances, military family leave entitlements under the FMLA allow eligible employees up to 26 workweeks of leave.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

DNA Diagnostics Center Inc. sued for denying a worker FMLA leave

The U.S. Department of Labor has filed a lawsuit in federal District Court seeking back wages, liquidated damages and employment reinstatement for an employee of Fairfield-based DNA Diagnostics Center Inc. The employee requested unpaid leave under the Family and Medical Leave Act to care for an ill niece for whom the employee was standing “in loco parentis,” or as a temporary guardian. The lawsuit, which resulted from an investigation conducted by the department’s Wage and Hour Division, alleges the company unlawfully denied the FMLA leave request and terminated the employee from her position after she exercised her rights under the FMLA.

“Our investigation found that DNA Diagnostics Center denied this worker her right to unpaid, job-protected leave under FMLA and then fired her for attempting to exercise that right. An employee who has day-to-day responsibility for caring for a child is entitled to FMLA protection, even if the employee does not have a biological or legal relationship with the child,” said George Victory, Wage and Hour district director in Columbus. “Employees already in distress over family or medical situations should not have to choose between their family and their job. The department is committed to protecting workers’ rights under the FMLA and to educating both employers and employees about their rights and responsibilities under this law.”

The FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The definition of 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. In June 2010 the department issued an Administrator Interpretation, clarifying the definition of son and daughter under the FMLA. This was to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.

The worker was a temporary guardian for her seriously ill 12–year-old niece, and she requested leave to care for the child during a health crisis. Her FMLA leave was denied because the company alleged the guardianship was temporary and not court-ordered. The employee was subsequently terminated by the company when she took leave to care for the child.The lawsuit requests for the worker to receive unpaid back wages; employment benefits plus interest and an additional equal amount as liquidated damages; and reinstatement to her position with the company. The lawsuit also asks the court to enjoin the company from violating the FMLA in the future.

Since 1993, the FMLA has been a major component in the department’s effort to promote work-family balance, providing workplace protections for employees with a serious health condition, or for those who are caring for a covered family member with a serious health condition. The FMLA helps to ease the burden that can come with needing time away from work when faced with such an illness. For more information about the FMLA and other federal wage laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

The Family and Medical Leave Act Supports Military Families

by Laura Fortman on November 9, 2013

For 20 years, the Family and Medical Leave Act has supported a healthy work-life balance for all workers, including veterans.

Earlier this year, we issued a final rule implementing recent amendments that expanded the FMLA to meet the unique challenges confronting military families and those who care for our wounded warriors. Serving your country is an honorable and rewarding career, but one that also calls upon the strengths of a servicemember’s entire family. For every soldier on the front lines, there is a support team at home steadfastly marching forward, filling voids left while a loved one serves. Here’s how the law can help:

• The FMLA’s Military Caregiver Leave provides time away from work to assist a service member who has suffered a serious illness or injury in the line of duty. A family member who works for a covered employer and meets the eligibility requirements of the FMLA may be entitled to take up to 26 workweeks of unpaid leave, during a single 12-month period. This leave is available to family members of current servicemembers and certain veterans of the Armed Forces, including the National Guard or Reserves.

• The FMLA’s qualifying exigency leave provisions mean that a family member who works for a covered employer and meets eligibility requirements may be entitled to take up to 12 workweeks of unpaid leave to take care of issues related to the foreign deployment of the military member. Examples of qualifying exigencies include time to make or update financial and legal arrangements, to attend military events and related activities, to attend non-medical counseling and for post-deployment activities.

• Thanks to these expanded protections afforded under the FMLA, family members can take leave to attend a deployment ceremony, spend time with an active duty soldier on rest and recuperation leave, or care for a wounded active duty soldier or veteran while having the peace of mind that comes from knowing that their employer-provided benefits − such as health insurance − are still available, and that their jobs will be there when they return.

No one should have to choose between the job they need and caring for the family that needs them − particularly the families of our men and women in uniform. The FMLA’s protections only have meaning and provide real benefits when our military, their families and veterans are aware of them and use them. Check out our Employee’s Guide to Military Family Leave, our employee and military worker information cards (in both English and Spanish), and other FMLA materials here.

To servicemembers and their families, on behalf of the Wage and Hour Division − and the entire Labor Department − we appreciate your sacrifices and wish you a happy Veterans Day.

Laura Fortman is the principal deputy administrator for the Wage and Hour Division.

This information is intended to be educational and should not be considered legal advice on any specific matter.

Motel 6 agrees to pay nearly $52,000 in back wages and to comply with the FMLA

Envy27 LLC, doing business as Motel 6 in Knoxville, has agreed to pay employees $51,967 in overtime back wages after an investigation by the Wage and Hour Division of the U.S. Department of Labor identified violations of the Fair Labor Standards Act and the Family and Medical Leave Act.

“A typical violation in the hotel and motel industry is the failure to pay required overtime premiums,” said Nettie Lewis, district director of the Wage and Hour Division’s Nashville District Office. “These employees have worked long hours. As a result of our investigation, they are being paid the wages they have earned and now know the benefits and protections of the FMLA. We encourage other hotel and motel employers to learn from this case, review their practices and make a diligent effort to limit future liability by complying with the FLSA and FMLA.”

An investigation conducted by the Division’s Nashville District Office disclosed that employees regularly worked more than 40 hours a week, but were only paid straight-time wages for all hours worked. The FLSA requires that workers be paid time and one-half their regular rates of pay for all overtime hours worked. The employer failed to post required FMLA posters in an area visible to workers and did not provide information about the FMLA in the company’s handbook, in violation of FMLA requirements.

The hotel is a franchise of the Motel 6 brand. Following the investigation, establishment owner Nitinkumar “Nick” Patel agreed to pay all back wages due to the affected employees, pay proper overtime rates when overtime is worked, amend the company handbook to include general notice of the FMLA, display required FMLA posters at all locations, and comply with the FLSA and FMLA going forward.

The Wage and Hour Division has noticed the noncompliance in this industry and is concentrating its resources on investigating and remedying violations, informing workers of their rights and providing compliance assistance to employers. Since 2009, the division has concluded nearly 5,000 cases involving hotel and motel employers, resulting in more than $15.1 million in back wages for more than 28,000 workers nationwide.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well as time and one-half their regular rates of pay for hours worked over 40 per week. In general, hours worked includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, from the beginning of the first principal work activity to the end of the last principal activity of the workday. Additionally, the law requires that accurate records of employee’s wages, hours and other conditions of employment be maintained.
 
The FMLA provides eligible employees up to 12 workweeks of unpaid, job-protected leave with continuation of health care coverage under the same terms and conditions as if the employee had not taken leave. Leave may be taken all at one time or may be taken from time to time. An employer is prohibited from interfering with, restraining or denying the exercise of, or the attempt to exercise, any FMLA right. Prohibited conduct includes refusing to authorize FMLA leave for an eligible employee.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Modern Families and Worker Protections

by Laura Fortman on August 15, 2013

Until 1993, there was no law that protected workers from having to choose between their jobs and their health – or the welfare of family members who needed their care. The Family and Medical Leave Act changed that, by allowing covered employees to take up to 12 weeks of unpaid leave without getting fired. This law provided greater protection and flexibility to America’s workers, and the Wage and Hour Division has been proud to uphold it for the past 20 years.
 
But our agency doesn’t just enforce the law. We also provide guidance to employees and employers, to make sure they understand their rights and responsibilities. Earlier this week, the Wage and Hour Division made a few revisions to some of our guidance documents that reflect changes to our enforcement of the FMLA in light of the Supreme Court’s recent decision in United States v. Windsor.

These updates remove all references to the Defense of Marriage Act’s provisions that denied federal benefits to legally married, same-sex couples. In light of the Supreme Court’s decision U.S. v. Windsor, the updates clarify the definition of “spouse” for Title I of the FMLA, which applies to covered private-sector employers and any covered public agency. The updated documents can be viewed at these links:

• Fact Sheet 28F
• FMLA PowerPoint (slide 12)
• WHD Field Operations Handbook Chapter 39d03(d)(1) (p.23 of PDF)
• WHD Opinion Letter FMLA 98 (header)

These changes are not regulatory, and they do not fundamentally change the FMLA. They simply recognize that the Supreme Court’s Windsor decision expands the number of employees who are eligible for FMLA benefits to include legally married, same-sex couples. The effective date of this expansion is June 26, 2013, the date of the Windsor decision.

Pursuant to the president’s directive, the Department of Labor continues to collaborate with our federal colleagues, including the Department of Justice, on interpreting the Supreme Court’s decision and ensuring that we are implementing it in a way that provides the maximum protection for workers and their families. We believe the decision represents an important step toward equality for America’s working families, and we look forward to providing further guidance as it becomes available.

Laura Fortman is the principal deputy administrator of the Wage and Hour Division.

This information is intended to be educational and should not be considered legal advice on any specific matter.

The FMLA: 20 Years On and Keeping America’s Families Strong

by Laura Fortman on August 7, 2013

Today we announced that national restaurant chain T.G.I. Fridays has agreed to change its employee leave policy to be in compliance with the Family and Medical Leave Act. The move affects thousands of employees at locations across the U.S. The company has also agreed to pay back wages to an employee in Louisiana after failing to reinstate the employee to the same or equivalent position following FLMA-covered leave, and not allowing the employee to return to work immediately.

Workers should not have to choose between their jobs, and their health or the health and welfare of family members who need their care. That is the core belief behind the FMLA, which provides America’s workers the right to take unpaid, job-protected leave for up to 12 weeks to care for themselves or a loved one while maintaining full health care coverage. It also guarantees that a worker can return to the job at the same level with the same pay and benefits.

Millions of American workers and their families have benefited since the FMLA’s provisions became effective 20 years ago this week. In the first year-and-a-half after it became available, it’s estimated that between 1.5 and 3 million Americans took FMLA-covered leave to care for themselves or a loved one. Twenty years later, FMLA leave has been used nearly 100 million times, and research shows that the FMLA has not imposed an undue burden on employers.

But the FMLA must evolve to keep pace with the changing face of the modern family. In 2010, the department clarified that workers who assume the role of guardians – including grandparents and gay parents – receive parental rights to family leave, regardless of legal or biological relationship to the child. Earlier this year, we recognized that the FMLA could be used to care for an adult child with a mental or physical disability, ensuring compatibility with the Americans with Disabilities Act.

We also expanded military family leave provisions this year, and incorporated a special eligibility provision for airline flight crew employees. My agency, the department’s Wage and Hour Division (responsible for enforcing the act), is currently working with the Department of Justice to review our FMLA guidance to see if changes are necessary to ensure consistency with the Supreme Court’s recent decision on the Defense of Marriage Act, known as DOMA.

As we move into the act’s third decade, we are increasing our outreach to educate employers and workers about the law as well as stepping up enforcement efforts. When we review FMLA compliance practices during our routine workplace investigations, we examine how companies communicate with employees about their FMLA policies.

Covered employers are required to provide certain notices to their employees about their rights under FMLA. The T.G.I. Fridays policy did not include information on the FMLA’s military family leave provisions or information on the right to take FMLA-covered leave on an intermittent or reduced schedule basis, and misstated the 12-month employment requirement for FMLA eligibility as being 12 continuous months. If employers like T.G.I. Fridays provide incomplete or inaccurate information to their employees about the FMLA, it can prevent eligible employees from understanding and exercising their rights.

In every case, large or small, we try to work with the employer to prevent future violations. This month, aircraft manufacturer Hawker-Beechcraft agreed to resolve allegations of violating the FMLA by paying three wrongfully terminated workers more than $48,000 in back wages. The company also agreed to provide training for its 6,000 employees about their rights under the act. And earlier this year, an energy company in Alaska was ordered to reinstate and pay $43,000 in back wages to a worker fired under an erroneous leave policy. That company also has agreed to change its policy going forward.

On the 20^th anniversary of the FMLA’s enactment in February, President Obama challenged us to “recommit ourselves to the values that inspired the law and redouble our efforts on behalf of fairer workplaces and healthier, more secure families.” As today’s announcement makes clear, we are dedicated to ensuring the FMLA’s protections are honored in workplaces across the country and more American families are being made secure as a result.

Laura Fortman is the principal deputy administrator of the Labor Department’s Wage and Hour Division.

This information is intended to be educational and should not be considered legal advice on any specific matter.

 

US Labor Department finds violations of federal job-protected leave, back wages for worker at T.G.I. Fridays

Restaurant chain makes corrections to comply with Family and Medical Leave Act

The U.S. Department of Labor’s Wage and Hour Division announced today that T.G.I .Fridays, a subsidiary of Minnesota-based Carlson, has agreed to change its leave policy to be in compliance with the Family and Medical Leave Act. The move affects employees at its 272 company-owned locations. The company has also agreed to correct violations of the FMLA found during an investigation of one of its restaurants in Shreveport, La., and pay an employee $1,455 in back wages. 
 
“Workers should not have to choose between their job, and the family members who need their care,” said Laura Fortman, principal deputy administrator for the Wage and Hour Division. “Ensuring a work-life balance is the cornerstone of the Family and Medical Leave Act, which has been the law of the land for 20 years. It gives America’s workers the right to take unpaid, job-protected leave to care for themselves or a loved one. As we move into its third decade, we are more dedicated than ever to enforcing the law when necessary to protect workers, yet continue to offer assistance to those employers who need help to come into compliance.”
 
The agency’s investigation found that the company violated the FMLA by failing to reinstate the employee to the same or equivalent position, including pay, benefits and other terms of employment, and that the worker was not allowed to return to work immediately following FMLA-covered leave. The delay in allowing the employee to return to work caused the employee to lose three weeks of pay.

Additionally, the investigation found that the company’s FMLA policy and worker rights notification practices were not in keeping with the law. Specifically, the policy did not include information on the FMLA’s military family leave provisions, information on the right to take FMLA-covered leave on an intermittent or reduced schedule basis, and misstated the 12-month employment requirement for FMLA eligibility as being 12 continuous months.
 
The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Under certain circumstances, military family leave entitlements allow eligible employees up to 26 weeks of leave. Employers are prohibited from interfering with, restraining or denying the exercise of (or the attempt to exercise) any FMLA right. Employers also are prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. For example, an employer may not use an employee’s request for or use of FMLA leave as a negative factor in employment actions such as hiring, promotions or disciplinary procedures.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Settlement reached by Presbyterian Hospital following U.S. Labor Department FMLA investigation

Presbyterian Healthcare Services in Albuquerque, one of the largest health care providers in New Mexico, has agreed to comply with the law in a settlement that requires corrections to its Family and Medical Leave Act policies and practices.

An investigation by the U.S. Department of Labor Wage and Hour Division’s Albuquerque District Office found several FMLA violations that affected more than 9,600 employees, including wrongful denial of leave to nearly a dozen eligible employees and improperly requesting more information than permitted under the law. 
 
Presbyterian has signed a settlement agreement with the Wage and Hour Division to attest their agreement to come into and maintain compliance with the FMLA. Terms of the settlement include requirements for Presbyterian to make corrections to the wrongful denials and provide FMLA leave benefits to future eligible employees; supply FMLA training to managers; update its policy regarding normal call-in procedures when employees need FMLA leave; give proper advance notice of fitness-for-duty medical certification requests for employees to return to work; and eliminate the annual automatic renewal of medical certification without a leave request from the employee.

“The FMLA gives eligible employees the ability to help balance the demands from work and family that we all face without the worry of being fired or disciplined for taking FMLA leave. This agreement will impact thousands of families in New Mexico by ensuring employers will comply with the protections and benefits afforded to them under the FMLA. We are pleased that Presbyterian Healthcare Services will make these significant changes in its FMLA policy,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest.

Under the FMLA, an employer is prohibited from interfering with, restraining or denying the exercise of, or the attempt to exercise, any FMLA right. Employers are prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempting to exercise any FMLA right. Specifically, an employer may not use an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary procedures.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Hawker Beechcraft agrees to improve Family Medical Leave compliance; training to 6,000 workers following US Labor Department investigation

Company will also pay 3 employees $48,800 in back wages for FMLA claims

Hawker Beechcraft Inc. signed a compliance agreement with the U.S. Department of Labor, as a result of an investigation by the department’s Wage and Hour Division, which found the Wichita company interfered with employees’ rights under the Family and Medical Leave Act.

A 20-year employee, who was terminated in violation of the FMLA, will be reinstated and receive a total of $45,000 in back wages and 15 months of accrued vacation and sick leave hours. The company offered to write a letter of explanation to the employee’s creditors, who had threatened foreclosure on his home. Two other employees, who were also wrongfully terminated, will receive a total of $3,800 in back wages.

“Our investigation revealed that Hawker Beechcraft’s policies discouraged workers from applying for FMLA leave because employees feared reprisals, violation of privacy and, ultimately, loss of employment. Employees already in distress over family or medical situations should not have to choose between their health care and their job” said Patricia Preston, the division’s district director in Kansas City, Mo. “The department is committed to protecting workers’ rights under the FMLA and to educating both employers and employees about their rights and responsibilities under this law.”

The company has agreed to provide FMLA information to its 6,000 member workforce, to provide proper notification of eligibility, rights and responsibilities to employees within the time frames required by the FMLA, to revise its administrative procedures for requesting FMLA leave and to provide additional FMLA training to its human resources staff.

The investigation found that Hawker Beechcraft required employees to submit complete medical records to the company physician prior to scheduling an appointment for a second opinion. The company allegedly terminated the employment of those employees who failed to provide these private medical records in a timely manner, a practice which discouraged employees from applying for leave under the FMLA. Under the FMLA, an employer only has the right to request medical certification containing sufficient medical facts to establish that a serious health condition exists. The company also failed to provide employees notification of their eligibility, rights and responsibilities under the FMLA, as required.

Since 1993, the FMLA has been a major component in the department’s effort to promote work-family balance, providing workplace protections for employees with a serious health condition, or for those who are caring for a covered family member with a serious health condition. The FMLA helps to ease the burden that can come with needing time away from work when faced with such an illness.

Source: DOL
 

This information is intended to be educational and should not be considered legal advice on any specific matter.