May 8, 2013

Here today, gone tomorrow — intermittent leave under the FMLA

Posted in Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Intermittent Leave, Leaves of Absence tagged , , , , , at 9:58 am by Tom Jacobson

FMLALast week I had the privilege of speaking at Lakes Country Service Cooperative to a group of  HR professionals regarding recent developments in employment law. One of the participants asked about an employee’s right to take a day off here and there to help care for a parent. The question struck a personal chord with me because I’ve recently been dealing with an ailing dad and multiple days away from the office to visit him in the hospital and to help my mom. I’m happy to report that he’s now making a good recovery.

For employers covered by the Family and Medical Leave Act, the participant’s question is whether the FMLA allows an eligible employee to take intermittent leave to care for a family member with a serious health condition. By definition, intermittent leave under the FMLA is “leave taken in separate blocks of time due to a single qualifying reason,” and it may be used for this purpose. Specifically, federal regulations provide that:

Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

Of course, this only applies to eligible employees of employers who are covered by the FMLA. Also, the FMLA has detailed definitions of what qualifies as a “serious health condition” or “serious injury or illness” which would trigger the right to intermittent leave, and another FMLA regulation describes how intermittent leave is to be scheduled.

What you need to know: Based on last week’s LCSC discussion, navigating through the intersecting laws that grant employees the right to time away from work continues to be a major challenge for many employers. The FMLA is only one of those laws, and intermittent leave is just one type of leave that covered employers must be prepared to provide to eligible employees.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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March 6, 2013

Laws and sausage

Posted in Application Process, Background Checking, Conviction Records, Criminal History, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Non-Compete Agreements tagged , , , , at 10:00 am by Tom Jacobson

Laws are like sausages. Better not to see them being made.

John Godfrey Saxe

sausage440It’s that time of year again.  The Minnesota Legislature and Congress are both in session, so that gives us a chance to see what sort of legislation is being ground up and processed into what could become the new law of the land. Here are a couple of work-related bills worth watching.

Minnesota H.F. 506: This proposed law would void non-compete agreements in all but a few limited circumstances.  Generally speaking, it would bar non-competes between employers and employees.  This law would have a tremendous impact on any employer that uses non-competes as a tool for protecting their business interests.

Minnesota H.F. 690 /Minnesota S.F. 523: These bills would amend Minn. Stat. § 364.021 by prohibiting private sector employers from considering an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. This restriction already exists for public employers, but the new law would expand this to private employers as well.

H.R. 675: Introduced in the U.S. House of Representatives, this bill, dubbed the Part-Time Worker Bill of Rights Act of 2013, would amend the Family and Medical Leave act by removing from the law the requirement that before an employee is eligible for FMLA leave, s/he must work 1,250 hours during the year preceding the request for leave. Thus, if this bill were to become law, virtually any part-time employee with at least one year of service with an employer covered by the FMLA would gain FMLA leave rights.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com. If you have concerns about the impact of this legislation, please contact your duly elected senators and representatives.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 15, 2013

New FMLA poster requirement takes effect March 8

Posted in Family and Medical Leave Act (FMLA), Leaves of Absence, Posting Requirements, Posting Requirements, Uncategorized tagged , , , , , , at 7:16 am by Tom Jacobson

FMLABy March 8, 2013 employers covered by the Family and Medical Leave Act must start using the new poster prepared by the United States Department of Labor. The poster summarizes the major provisions of the FMLA, and it advises employees how to file a complaint. The DOL requires the poster to be “displayed in a conspicuous place where employees and applicants for employment can see it…. [and] at all locations even if there are no eligible employees.” Covered employers may continue to use the old version of this poster until March 7, but thereafter they must post the new notice.

Not every employer in the U.S. is covered by the FMLA. Under the FMLA, a “covered employer” is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Download the DOL’s new poster by clicking here or by visiting the DOL Wage and Hour Division’s FMLA site. For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 or taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 12, 2012

Minnesota Parenting Leave Rights Expanded by Federal Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , , , , , , at 11:25 am by Tom Jacobson

IMGIn June I noted how the Minnesota Supreme Court ruled in the case of Hansen v. Robert Half International that so long as employees disclose a qualifying reason for parenting leave, they are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave. A federal court has further expanded the MPLA by ruling that no specific language is needed to extend the right to reinstatement following an MPLA leave and that a reduction in force (RIF) is not a lawful reason for denying reinstatement.

The federal case, Kersten v. Old Dominion Freight Line, revolved around Anastasia Kersten’s maternity leave while working for Old Dominion.  According to court documents, Kersten and Old Dominion agreed that her leave would run from September 10 through November 1, 2009. On September 18, 2009 Kersten e-mailed an Old Dominion manager and requested to “come back on the 9th as long as that is ok with you.” The manager responded that “Nov 9 will work.” Old Dominion terminated Kersten on November 4, 2009, claiming that the termination was part of a RIF.

Under the MPLA employees may determine the length of leave, “but [the leave] may not exceed six weeks, unless agreed to by the employer.” Also, employees have a limited right to reinstatement at the end of their leave. Old Dominion argued that its agreement to extend Kersten’s leave was not an agreement to extend her right to reinstatement. Relying on the Minnesota Supreme Court’s decision in Hansen, the United States District Court for the District of Minnesota rejected that theory:

Using Hansen as a guide, the court determines that no specific language is required to extend leave; rather, a specific agreement to reinstate is reached when an employee requests a date to return to work, and an employer consents. A contrary interpretation would contravene the goal of the MPLA – to provide pregnancy leave for a term mutually agreed upon by the employer and employee.

Next, the court addressed Old Dominion’s RIF argument. Under the MPLA, an employee has no right to reinstatement if “the employer experiences a layoff and the employee would have lost a position had the employee not been on leave, pursuant to the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement.” Thus, the question was whether Old Dominion’s alleged RIF was a layoff that fit within the exception. The court said no. Specifically, the court noted that in this case, Old Dominion was merely implementing a verbal standard operating procedure which did not include any right of a RIF’d employee to be recalled/reinstated; therefore, it was not a “bona fide layoff and recall system,” and it was not a legitimate reason for failing to reinstate Kersten.

What you need to know: Recent court decisions indicate that the MPLA has a very expansive reach and will be liberally interpreted to allow parenting leave. Specifically, based on the Hansen and Kersten cases:

  • Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave; so long as the eligible employee puts the employer on notice of a qualifying reason, s/he is protected by the MPLA.
  • No specific language is required to extend MPLA leave; rather, a specific agreement to reinstate is reached when an employee requests a date to return to work, and the employer consents.
  • A RIF is not a bona fide layoff and recall system that can be used to deny reinstatement to an employee on MPLA leave. 

Managing leaves of absence under the MPLA, Family and Medical Leave Act (FMLA) and/or related statutes can be extremely complicated. Therefore, it is important for employers to establish clear policies and procedures for managing these complicated leave situations and to consult with legal counsel for advice when they arise.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 8, 2012

No Magic Words Needed under Minnesota Parenting Leave Act, says State’s Highest Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , at 9:24 am by Tom Jacobson

Employees are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave, says the Minnesota Supreme Court.

The MPLA requires Minnesota employers with 21 or more employees to grant an unpaid leave of absence to eligible employees who are natural or adoptive parents in conjunction with the birth or adoption of a child. Employers must continue to make coverage available to the employee while on leave under any group insurance policy, group subscriber contract, or health care plan for the employee and any dependents. Employees returning from MPLA leave are entitled to return to employment in the their former position or in a position of comparable duties, number of hours, and pay.

Unfortunately, the statute does not precisely say what an employee must do to request MPLA leave. This lack of precision was at the heart of the Court’s May 30, 2012 decision in the case of Hansen v. Robert Half International.

In this case Kim Hansen, who was employed by RHI, became pregnant and requested a leave of absence. In the paperwork that accompanied her request, Hansen indicated that her leave was pregnancy related, but she did not specifically mention the MPLA. RHI granted Hansen’s leave request and characterized it as a 12-week short term disability/FMLA leave.

Hansen returned to work after her approved leave ended, but she was dismissed a week later during a reduction in force. She then sued RHI, claiming, among other things, that RHI violated the MPLA by failing to reinstate her to the same or a comparable position after her maternity leave. The trial court dismissed Hansen’s MPLA claims for a number of reasons, including that Hansen had no right to reinstatement because the MPLA requires employees to request leave specifically under the MPLA, and Hansen failed to do so.

The case made its way to the Minnesota Supreme Court which analyzed the wording of the statute and compared it to the FMLA. The Court then concluded:

The record shows Hansen informed RHI of a qualifying reason for her leave. When Hansen completed her leave of absence request form, she completed section A of the form pertaining to “short-term medical disability,” “pregnancy-related disability,” or “worker’s compensation disability” leave. She completed the line entitled “[p]regnancy related disability” and stated her delivery date. In addition, [one of RHI’s managers] admitted that she was on notice that Hansen would need to leave due to Hansen’s complications related to her pregnancy. Because Hansen stated a qualifying reason for needing leave under the MPLA – childbirth – we conclude that she invoked the protections of the Act.

Although Hansen won on this issue, the Court threw out her case for other reasons.

What you need to know: Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave. So long as the eligible employee puts the employer on notice of a qualifying reason – childbirth – s/he is protected by the MPLA. Also, the Hansen case highlights the challenges that arise when MPLA, FMLA and other leaves of absence overlap. For these reasons, it is important for employers to establish clear policies and procedures for managing these complicated leave situations.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 8, 2011

Botched FMLA leave costs MN employer $12K

Posted in Disability, Family and Medical Leave Act (FMLA), Leaves of Absence tagged , , , , , , , at 10:12 am by Tom Jacobson

When Jim failed to return to work at Happy Trails Home* after his FMLA leave expired, Happy Trails fired him. Although this may seem like the proper course of action, this southern Minnesota health care facility ended up paying Jim $12,000.00 to settle his claims arising from Happy Trails’ botched handling of his leave.

The trouble began when Jim needed time off to recover from surgery. Happy Trails granted his request for FMLA leave, but it used a confusing FMLA designation form. The form said that eligible employees could “take up to 12 or 26 weeks of job-protected leave…”. This led Jim to believe that he had up to 26 weeks of leave. In addition, Happy Trails never clarified for Jim the number of hours, days, or weeks that would be counted against his FMLA leave entitlement.

The problems continued during Jim’s leave. He was ready, willing and able to return to work within about a month after his leave started. His doctor cleared him for light duty work, and he gave those clearances to Happy Trails. Rather than allowing Jim to return to work in a light duty capacity (as it had done for other employees), or working with him to figure out how much longer his FMLA leave would last, Happy Trails simply told him that he could not return to work until the light duty restrictions were lifted. Thus, Jim remained off work until his light duty restrictions were lifted slightly more than 12 weeks after his FMLA leave started.  Even though his restrictions were lifted, Happy Trails refused to bring him back to work.

Jim also claimed that Happy Trails’ failure to allow him to return to work in a light duty capacity violated the Americans with Disabilities Act Amendments Act. Assuming that his shoulder problems were a “disability” under the ADAAA, Jim argued that Happy Trails failed to engaged in an interactive process with him to determine a reasonable accommodation such as job restructuring, a modified work schedule, an ADAAA-based leave of absence, etc.

To make matters worse, Happy Trails changed its story after Jim challenged the company’s decision. First, Happy Trails said they were simply replacing him with someone else who had “seniority.” Then, the company suggested that his termination was related to an old scheduling issue. Eventually, Happy Trails said they let him go because he did not return to work before his leave had expired.

Fortunately for Happy Trails, Jim was able to find a new job within a few months after being discharged; this limited the company’s liability for Jim’s lost wages. Nevertheless, rather than face a lawsuit, Happy Trails agreed to pay Jim $12,000.00 to settle his claims.

Happy Trails learned the hard lesson that managing FMLA leaves is challenging. Federal laws impose a myriad of requirements that apply from start to finish, and failing to dot the “i’s” and cross the “t’s” is costly.  Happy Trails also learned how wavering explanations will damage credibility.

*Names have been changed due to confidentiality.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

November 22, 2011

Thank you, Spencer

Posted in Caregiver Leave, Exigency Leave, Family and Medical Leave Act (FMLA), Military Ceremonies, Military Leave, National Guard, Uniformed Services Employment & Reemployment Act (USERRA), Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) tagged , , , , at 10:07 am by Tom Jacobson

My favorite airman, USAF Academy Cadet 3C Spencer Jacobson, will be home for Thanksgiving break tonight.  Having him here reminds me of how much it means for all of us to be “home for the holidays.”

It also reminds me of how thankful we should be for the thousands of men and women who have chosen to serve our country through their commitment to the military.  As these service members join (or re-join) the civilian workforce, the best way for employers to show their appreciation is to fully understand the legal obligations they owe to our service members and their families.  For example:

    • Uniformed Services Employment and Reemployment Rights Act (USERRA) makes it unlawful for any employer to refuse to hire or otherwise discriminate against any employee or applicant because of his or her past or present military service.
    • Family and Medical Leave Act (FMLA) requires larger employers (those with 50 or more employees) to provide leave to eligible employees when they qualify as “military caregivers” or need “exigency leave.”
    • Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) requires covered federal government contractors and subcontractors to take affirmative action to employ and advance in employment certain categories of veterans; prohibits discrimination against such veterans.
    • Minn. Stat. § 181.535 makes it unlawful for Minnesota employers to question a job applicant about National Guard or military reserve service, unless the employer is a governmental body subject to veterans preference requirements.
    • Minn. Stat. § 181.947 requires Minnesota employers to grant up to ten working days of a leave of absence without pay to an employee whose immediate family member, as a member of the United States armed forces, has been injured or killed while engaged in active service.
    • Minn. Stat. § 181.948 requires Minnesota employers to grant leaves of absence without pay to employees to attend send-off or homecoming ceremonies for mobilized service members who are in their immediate family.
    • Minn. Stat. § 192.325 makes it unlawful for a Minnesota employer to discriminate against an employee because the employee’s spouse, parent, or child is a member of the military; requires employers to provide unpaid time off for employees to attend provide non-paid time off for an employee to attend specified ceremonies and events held on behalf of a family member who serves in the military.
    • Minn. Stat. § 192.34 makes it a crime for any Minnesota employer to discharge or otherwise discriminate against a person because of his or her military service or desire to serve.
    • Minn. Stat. § 197.455 requires Minnesota counties, cities, towns, school districts, and other municipalities and political subdivisions to extend preference points to veterans.
    • Minn. Stat. § 197.46 provides job protection to veterans employed by Minnesota counties, cities, towns, school districts, and other municipalities and political subdivisions.

For more information about which of these laws may apply to your workplace, visit: Minnesota Veterans:  the Road Back Home (Minnesota Department of Human Rights, The Rights Stuff, March 2010); Laws that Protect Veterans and Military Status (Minnesota Department of Human Rights, The Rights Stuff Forum: Minnesota Veterans); United States Department of Labor USERRA Advisor; or,  contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

  • Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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