Employment Law Update 2010: What Every Employer Should Know About

the FLSA, ADA, FMLA and GINA

March 11, 2010

PRESENTED BY

A. TEVIS MARSHALL Troutman Sanders LLP 1001 Haxall Point Richmond, VA 23219 804.697.1200

troutmansanders.com

Firm Overview

Troutman Sanders LLP is an international law firm with more than 700 lawyers and 15 offices in North America, Europe and Asia. Founded in 1897, the firm’s heritage of extensive experience, exceptional responsiveness and an unwavering commitment to service has garnered strong, long-standing relationships with clients across the globe. These clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry.

Troutman Sanders lawyers provide counsel and advice in practically every aspect of civil and commercial law. With more than 50 practice groups focused on specific aspects of these areas, the firm is defined by its considerable knowledge base and proactive approach to addressing legal and business challenges.

Reputation for Excellence

Consistently listed among the best law firms, recent rankings and achievements for Troutman Sanders include:

• Honored as one of only 30 law firms in The BTI Client Service 30 for best at client service. • Ranked #75 in the 2008 AmLaw 100 and #56 in the NLJ 250. • Ranked #1 in 12 Practice Categories in Chambers USA Guide 2008 and received 21 other rankings.

Offices

ATLANTA 404.885.3000

CHICAGO 312.759.1920

HONG KONG 852.2533.7888

LONDON 44.0.20.7038.6650

NEW YORK 212.704.6000

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RICHMOND 804.697.1200

SAN DIEGO 619.235.4040

SHANGHAI 86.21.6133.8989

TYSONS CORNER 703.734.4334

VIRGINIA BEACH 757.687.7500

WASHINGTON, DC 202.274.2950

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Commitment to Diversity

Diversity is an essential part of Troutman Sanders’ culture and contributes to the firm’s success and ability to grow. Troutman Sanders proudly supports many initiatives that foster an inclusive environment and helps its personnel balance commitments to clients and family.

Labor & Employment

The Troutman Sanders Labor & Employment Practice Group (L&E Group) consists of more than 30 accomplished attorneys located in our Atlanta, New York, Washington D.C., Richmond, Chicago, Orange County, San Diego, Virginia Beach and Raleigh offices. The L&E Group is fully equipped to provide counsel on virtually any labor and employment law matter, including:

• Defending all types of individual and multi-plaintiff employment cases. • Defending complex class and collective actions. • Representing management in union elections, both in certification and decertification petitions. • Negotiating and administering labor agreements. • Drafting employment policies, benefits plans, employment agreements and severance plans. • Conducting preventative training and compliance audits, including supervisory training to prevent union

activity, harassment and/or retaliation.

The L&E Group represents clients in federal and state court lawsuits involving claims of discrimination, federal wage and hour claims, and a myriad of state law claims for breach of contract, negligent retention and intentional infliction of emotional distress. The L&E Group also represents companies with respect to restrictive covenants, such as non-competition and non-solicitation agreements. The group frequently advises clients on workplace issues, such as human resources policies and procedures, employee handbooks, executive compensation and incentive pay systems, union avoidance techniques, and collective bargaining agreements.

The depth of knowledge and vast experience that the L&E Group possesses is best signified by its broad array of clients.

• Fortune 100 and Fortune 500 companies • Consumer products providers • Network broadcasting companies • Technology companies • Power and telephone utility companies • Public employers • Retailers • Entertainment industry entities • Manufacturers • National restaurant chains • Food service suppliers • Worldwide sports equipment companies

Human Resources Consulting The L&E Group routinely helps clients manage legal compliance issues. The L&E Group also helps clients identify unforeseen legal risks and avoid undesired litigation costs that can arise from employment actions and decisions. To effectuate this result, the L&E Group provides clients with proactive human resources consulting that maximizes the effectiveness and defensibility of its employment policies and actions. Our strategic approach reduces the risk of legal challenges to our clients’ employment policies and actions. The types of legal/consulting services we provide in this area include:

• Reviewing, designing and drafting employment policies and practices, including customized, state-of-the-art employee handbooks based on methods designed to support business goals, maximize employer flexibility and ensure total legal compliance.

• Designing and implementing employee discipline systems. • Designing hiring systems which ensure legal compliance and enable companies to attract the highest

quality employees. • Creating compensation systems to reduce costs, increase performance and assist retention of high quality

employees. • Training supervisors/employees on compliance with all federal and state labor and employment laws. • Providing general employment advice and preventative counseling. • Conducting or overseeing workplace harassment and misconduct investigations. • Creating job descriptions, including identifying essential job functions and other employee leave issues. • Implementing union avoidance strategies. • Assisting with corporate reorganizations, plant closings and reductions in force, including developing

voluntary and involuntary severance plans. • Preparing affirmative action programs and defending OFCCP Audits. • Advising on corporate asset protection, including development of policies and agreements that protect

against unlawful disclosure or use of confidential information, trade secrets, intellectual property, employee raiding and unfair competition.

Some specific examples of our human resources consulting work include the following:

• Designing, implementing and maintaining a voluntary and involuntary workforce reduction process for companies in the technology, manufacturing and many other industries.

• Designing and drafting a human resources management and compliance system for a national retailer with more than 1,000 locations.

• Designing and drafting the human resources policies and documents for start-up of a $1 billion company. • Redesigning hiring and internal selection procedures and criteria for an 11,000-employee company. • Designing, implementing and evaluating group-based incentive pay systems covering more than 50,000

employees for more than a dozen Fortune 500 companies.

• Designing and implementing an essential job functions development process and an ADA compliance program for several nuclear power plants.

• Drafting and negotiating nationwide non-competition and non-disclosure agreements for employees of a paper products supplier and for officers of a leading software developer.

• Drafting affirmative action plans for Fortune 500 client which allowed the company to bid on government contracts.

• Training managers and employees at Fortune 500 clients regarding sexual harassment issues. • Conducting a workplace violence seminar for employers outlining warning signals of workplace violence

and practical tips on how to deal with workplace violence situations. • Investigating allegations at a national manufacturing company that a senior executive assaulted and

sexually harassed a subordinate. • Advising professional sports teams and a national cinema company on public accommodation compliance

issues under the Americans with Disabilities Act, including negotiating with the Department of Justice for the clients on those issues.

Litigation and Dispute Resolution The L&E Group strives to keep clients out of litigation. However, the L&E Group realizes that some employment disputes arise that can only be resolved through litigation. Once litigation begins, the L&E Group’s primary focus is to get the most successful result for the client in the most cost-effective manner possible. To significantly reduce costs normally associated with organizing and pursuing the defense of a case, the L&E Group uses advanced technology like Real-Time transcription, Summation and ProLaw case management software and document scanning. If the case has to go to trial, few, if any, law firms have the jury trial experience that the Troutman Sanders L&E Group’s trial attorneys possess. The unmatched success and experience of the L&E Group’s litigation practice is unquestionably our defining trait. The L&E Group regularly represents clients in all facets of employment litigation in both federal and state courts across the nation, including litigation involving all types of unlawful discrimination, wrongful discharge, retaliation, whistleblower claims, federal and state wage and hour laws, collective bargaining agreements, employment contracts, compensation agreements, non-solicitation and non-disclosure agreements, covenants not to compete, and trade secret issues. The L&E Group’s record of obtaining summary judgment, directed verdicts and jury verdicts for clients in these cases is unparalleled. The L&E Group also regularly represents clients in administrative investigations, proceedings and litigation before:

• The Equal Employment Opportunity Commission • The National Labor Relations Board • The Department of Labor, including the Wage and Hour Division • The Department of Justice • The Office of Federal Contract Compliance Programs

• The Occupational Safety and Health Administration • The Nuclear Regulatory Commission • The U.S. Immigration and Naturalization Service

The L&E Group also routinely practices alternative dispute resolution techniques (including mediation, arbitration and mini-trials) and endeavors to use these techniques whenever they serve the best interests of clients. These approaches, just as those related to using technology to manage workflow, can often limit costs to clients. Some examples of our litigation practice include the following:

• Winning a jury verdict in favor of a Fortune 500 client on plaintiff’s race discrimination and retaliation claims. • Winning a jury verdict in favor of an employer in a pregnancy discrimination case. • Winning a directed verdict in favor of Fortune 500 client in Alabama on plaintiff’s racially hostile work

environment claim. • Winning a directed verdict in a sex discrimination lawsuit brought by two female over-the-road truck drivers

against a large transportation company. • Winning summary judgment for a silicon water manufacturer in a case where a discharged engineer alleged

age, religion and national origin discrimination. • Winning a directed verdict in favor of a national restaurant company on plaintiff’s sexual harassment hostile

work environment claim. • Winning a jury verdict in favor of Fortune 500 client on a plaintiff’s retaliation claim. • Winning a directed verdict on a race discrimination claim for a nationwide chain of movie theaters in

Arkansas. • Obtaining summary judgment in Florida in favor of Fortune 500 client in a four-plaintiff lawsuit alleging

hostile work environment, racial harassment and race discrimination in promotions and discipline in a case where the EEOC had issued a cause finding.

• Obtaining summary judgment for Fortune 500 client in a race discrimination case challenging the promotion system at a company facility.

• Obtaining summary judgment for clients against numerous plaintiffs alleging claims of long-standing supervisor and coworker sexual harassment.

• Obtaining summary judgment in an age discrimination claim brought by the human resources manager who was let go in a reduction-in-force by a large manufacturer.

• Obtaining summary judgment for a telecommunications company in a sex discrimination case filed in Florida.

• Winning summary judgment in a case involving allegations of age discrimination and disability discrimination against a Fortune 500 telecommunications company.

• Winning a motion to dismiss a national origin discrimination claim filed against an employer operating a nuclear power plant.

• Successfully obtaining the dismissal of an OSHA citation that alleged willful safety violations and proposed approximately $90,000 penalties against Fortune 500 client.

• Representing a nuclear licensee in successfully defending against claims of retaliation before both the Department of Labor and the Nuclear Regulatory Commission.

• Winning a jury verdict in Virginia in favor of Fortune 500 client in breach of employment contract action brought by its Chief Financial Officer.

• Obtaining judgment in favor of nationwide agricultural business in Virginia in claims of sexual harassment, negligent hiring, and negligent retention.

• Obtaining summary judgment in Virginia in favor of a major Virginia city on claims of national origin discrimination.

Class and Collective Action Litigation The L&E Group has the expertise, experience and resources to manage large class action, collective action and multiple-plaintiff litigation, including claims related to “pattern and practice” employment discrimination and federal wage and hour violations raised by several dozen plaintiffs to several thousands of plaintiffs. The L&E Group’s successful management and defense of these types of cases for Fortune 500 clients has garnered national recognition. A few recent, notable examples of this success include:

• Defeating motion for class certification in race discrimination case which sought to establish a class of approximately 2,400 employees of Fortune 500 client, then obtaining summary judgment on all remaining individual plaintiffs’ claims. The L&E Group successfully represented its client throughout the appellate process, which ultimately ended before the United States Supreme Court.

• Obtaining summary judgment against all named plaintiffs in putative class action brought pursuant to the FLSA and another federal wage and hour statute against Fortune 500 client on behalf of more than 2,000 plaintiffs, thereby eliminating any chance for the class to be certified.

• Obtaining a dismissal of a putative collective action brought by 168 named plaintiffs under the Fair Labor Standards Act alleging entitlement to overtime pay for time spent on call.

• Obtaining dismissal of the class allegations in a series of FLSA collective action cases brought against client that sought to include class of several thousand plaintiffs.

• Obtaining judgment against all named plaintiffs in collective action brought under the ADEA against a major Virginia radio and television broadcasting company.

• Winning a motion to dismiss a class action lawsuit brought by police officers under the Fair Labor Standards Act against a large public employer located in metropolitan Atlanta.

• Obtaining summary judgment against all individual plaintiffs in putative class action filed against Fortune 500 client by establishing that company was not the plaintiffs’ joint employer under the Fair Labor Standards Act.

• Obtaining disqualification of “pattern and practice” plaintiffs’ statistical expert witness. • Obtaining court orders limiting the scope of plaintiffs’ discovery. • Successfully managing large discovery databases.

• Successfully negotiating complex settlement agreements and consent decrees.

Traditional Labor Law The L&E Group has made its mark in the traditional labor law arena. The L&E Group regularly represents management in union elections and leads negotiations in collective bargaining with unions. It also conducts supervisory training to prevent incipient union activity and represents management in arbitrations interpreting aspects of collective bargaining agreements. In addition, the L&E Group manages investigations initiated by various governmental agencies, including the NLRB and the OFCCP. Some examples of our work in this area include:

• Conducting union avoidance campaigns for dozens of companies, including a campaign in New York for an international entertainment company and campaigns in Los Angeles and Memphis for a security company doing business around the world.

• Negotiating collective bargaining agreement for clients across the nation. • Handling hundreds of labor arbitration cases for clients throughout the U.S. • Decertifying two unions in Texas and Delaware for a manufacturer of flexible packaging. • Defeating union organization attempts for a boat manufacturer in Tennessee and Florida. • Decertifying a union in Michigan and Wisconsin for a furniture retailer. • Negotiating subcontracting provisions into collective bargaining agreements after multi-week work

stoppages.

In addition to its extensive litigation practice, the L&E Group has vast experience guiding unionized clients through the maze of issues that arise in the labor management relations process. The L&E Group serves as chief labor counsel to various unionized clients, including the Fortune 500 holding corporation of power utility companies located throughout the southeastern United States. In this capacity, the L&E Group is adept at responding to unfair labor practice charges, providing counseling and strategy advice throughout the grievance process, defending management in arbitration proceedings, and defending against suits alleging breach of collective bargaining agreements or seeking to compel arbitration. Related Practice Groups Troutman Sanders LLP also has related practice groups which supplement the L&E Group’s extensive legal services, including the Compensation and Employee Benefits Group and the Immigration Practice Group. The Compensation and Employee Benefits Group provides comprehensive legal and consulting advice on the full spectrum of federal laws impacting employee benefit plans, compensation, and privacy issues. The Compensation and Employee Benefits Group also routinely defends clients in both civil and criminal ERISA litigation matters, including claims involving alleged denial of severance, disability, retirement, and health benefits.

The Immigration Practice Group provides a full-service immigration practice, including routinely advising clients on issues related to alien-employees, obtaining temporary work visas for employees to work at client facilities in the United States and around the world, and assisting individuals desiring to obtain permanent residency.

Tevis Marshall Troutman Sanders Building 1001 Haxall Point Richmond, Virginia 23219 804.697.1284 telephone 804.698.5122 facsimile tevis.marshall@troutmansanders.com

Representative Experience Practice in all areas of labor and employment law including Title VII, Employee Retirement Income Security Act of 1974 (ERISA), Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), breach of employment contracts, restrictive covenants, wrongful termination, and other general employment litigation in federal and state court.

Employee benefits litigation experience under ERISA and state law.

Commercial litigation experience including breach of fiduciary duty, business conspiracy, breach of contract, covenants not to compete, trade secrets, Fair Credit Reporting Act (FCRA), Truth in Lending Act (TILA), fraud, and tort defense.

General representation of musicians and talent management companies with respect to contract negotiation and intellectual property rights.

Speaking Engagements Speaker at January 2010 monthly meeting for Albemarle-Charlottesville Human Resources Association (ACHRA) - Employment Law Update 2010: What Every Employer Should Know About the FLSA, ADA, FMLA and GINA

Speaker at Troutman Sanders LLP's November 2009 Labor and Employment Seminar - The New Americans With Disabilities Act: The ADA Amendments Act of 2008 (ADAAA) and Notice of Proposed Rulemaking

Speaker at June 2009 seminar provided by the Virginia CLE Foundation -

Practice Areas • Labor & Employment Education • College of William and Mary (J.D.,

2004) • University of Virginia (B.A., 1998) Work Experience • Associate, Troutman Sanders LLP,

2006 - Present • Associate, LeClair Ryan, 2004 -

2006 Bar and Court Admissions • Virginia • U.S. District Court for the Eastern

District of Virginia • U.S. District Court for the Western

District of Virginia Bar Activities and Legal Associations • Richmond Bar Association • American Bar Association • Virginia Bar Association Distinctions • Member of the Richmond Bar

Association Publications Committee, 2006 - present Member of the Board of Directors for Human Resources, Inc., 2007 - present President of the Board of Directors for Human Resources, Inc. 2009 - present

"Employers and Employees: Rights and Responsibilities in 2009 - The Family Medical Leave Act"

Speaker at Troutman Sanders LLP March 2009 Seminar on the New FMLA Regulations - FMLA Certifications For Serious Health Conditions

Speaker at Troutman Sanders LLP's November 2008 Labor and Employment Seminar - The Impact of Recent Changes to the Family Medical Leave Act

Speaker at Troutman Sanders LLP's November 2007 Labor and Employment Seminar - Wage Wars: 2004 Wage and Hour Law and its Impact Three Years Later

Speaker at July 2006 employment law seminar on Pandemic Influenza – Preparing For Avian Bird Flu in the Workplace

Publications Contributing author to "A Virginia Employer's Guide to Hiring, Firing, and Discipline," published by the Virginia Chamber of Commerce

Table of Contents

I. Presentation- Employment Law 2010

II. FLSA Update

III. ADA Update

IV. FMLA Update

V. GINA Update

EMPLOYMENT LAW UPDATE 2010:

What Every Employer Should Know About The FLSA, ADA,

FMLA and GINA

PRESENTED BY

Tevis MarshallTroutman Sanders LLP1001 Haxall PointRichmond, Virginia 23219804.697.1284

www.troutmansanders.com

Dispelling Common Myths About The FLSA’s Overtime Provisions• The FLSA regulates two primary areas of

employment law:

• Minimum Wage – currently $7.25/hr.• Overtime - One and one-half times the

regular rate of pay for hours worked in excessregular rate of pay for hours worked in excess of 40 hours per workweek.

• The DOL has reported that more than 70% of employers are not in compliance with the FLSA

FLSA

employers are not in compliance with the FLSA.

• FLSA collective actions are now filed more frequently than all other types of federal workplace class actions

• History of FLSA lawsuits:• 1990’s Between 1,000 and 2,000 per yr.• 2006 Approximately 4,400.

FLSA

•What are the penalties for violating the FLSA?

• Injunctive relief• Back pay • Attorneys’ fees• Court fees• Corporate officers / supervisors - $10k for eachCorporate officers / supervisors $10k for each

willful violation AND prison sentence after second conviction

• “Our employees are all paid on a salary basis therefore they are not entitled to

FLSA

basis, therefore they are not entitled to overtime.” • Must be paid on a “salaried basis”

º $455/wk ($23,140 annually)• Must pass the job duties test and fall within a

statutory exemptionstatutory exemptionº Executive, administrative, professional, computer

professionals, outside sales and highly compensated employees.

FLSA

• “Our employees may be at work for 45 h k b t d k 1 h d thours a week, but we dock 1 hour a day to account for meal periods and other breaks.” • Burden is on employers to show how many

hours employee actually worked.• Track your employees’ actual hours.

FLSA

• “We don’t have to pay for overtime unless it d i d ”it was approved in advance.” • FLSA makes no distinction between

“approved” and “unapproved” overtime.

FLSA

• “We pay overtime, but we average our l ’ h t k ”employees’ hours over two weeks.”

• Overtime is due for any hours over 40 in a single workweek

º A regularly recurring period of 168 hoursº Seven consecutive 24-hour periods

FLSA

• “The seminar that our employees attended l t S t d ‘ ff th l k’last Saturday was ‘off-the-clock’, so we don’t need to pay overtime.” • Employers must pay for any “hours worked”• Very broad definition• Time spent training, waiting, donning and p g, g, g

doffing, traveling, etc.

AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 (ADAAA)

• Broadens the definition of “DISABILITY”:

• “Disability” defined as (i) a physical or mental impairment that substantially limits one or more major life activities; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment.

• “The definition of disability…shall be construed in favor of broad coverage…to the maximum extentpermitted by the terms of the ADA.”

• Became effective January 1, 2009

“SUBSTANTIALLY LIMITS”• Supreme Court had previously interpreted

“substantially limits” to mean “severely restricts”.y y

• Now, we look to whether an individual is able to perform a major life activity when compared to most people in the general population.

º This can be made using a “common-sense standard, without resorting to scientific or medical evidence.”

“SUBSTANTIALLY LIMITS”Effects of mitigating measures are no longer considered in determining whether someone is disabled:

• Medication, medical supplies, equipment• Appliances, low-vision devices (not ordinary eyeglasses or

contact lenses)• Prosthetics • Hearing aids and implantable hearing devices• Mobility devices• Oxygen therapy equipment and suppliesOxygen therapy equipment and supplies• Assistive technology• Reasonable accommodations or auxiliary aids or services• Learned behavioral or adaptive neurological modifications• Surgical interventions (unless surgery permanently eliminates

an impairment)

“SUBSTANTIALLY LIMITS”An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

EXAMPLES• Epilepsy• Hypertension• Multiple Sclerosis• Asthma• Asthma• Cancer• Psychiatric disabilities (depression, bipolar disorder, PTSD)

“SUBSTANTIALLY LIMITS”Examples of impairments that will consistently meet definition of disability:• Deafness• Blindness• Intellectual Disability• Partially or completely missing limbs• Mobility impairments which require use of a wheelchair• Autism• Cancer• Cerebral palsy• Diabetes• Epilepsy• HIV/AIDS• Multiple sclerosis and muscular distrophy• Major depression, bipolar disorder, PTSD, obsessive compulsive disorder or

schizophrenia• Multiple Sclerosis

“SUBSTANTIALLY LIMITS”Examples of impairments that may be disabling for some individuals but not for others (i.e. impairments that will req ire greater anal sis)• Asthma • High blood pressure • Learning disability • Back or leg impairment• Psychiatric impairment • Carpal tunnel syndrome

require greater analysis):

• Hyperthyroidism

“SUBSTANTIALLY LIMITS”Examples of impairments that are usually not disabilities:

• Temporary, non-chronic impairments of short duration with little or no residual effects:

• common cold• seasonal or common influenza• a sprained joint• minor and non chronic gastrointestinal disorders• minor and non-chronic gastrointestinal disorders• a broken bone expected to heal completely.

“MAJOR LIFE ACTIVITES”• Major Life Activities – Things that most people in

the general population can do with little or no difficulty, including but not limited to:

• Activities under previous definition:• Caring for oneself, performing manual tasks, seeing,

hearing, walking, breathing and working.

• Activities added to new definition:• Eating, sleeping, standing, sitting, reaching, lifting,

bending, speaking, learning, reading, concentrating, thinking, communicating and interacting with others.

“MAJOR LIFE ACTIVITES”Expanded definition of “physical or mental impairment ” also includes Major Bodily Functions:F ti f th i t i l• Functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

• Specific examples:• Kidney disease, cancer, epilepsy, HIV/AIDS, sickle cell

disease, lymphedema, rheumatoid arthritis.

EFFECTS ON EMPLOYERS• More employees will be covered

• More requests for accommodations

• Heightened obligation to engage in interactive process with employees

• More ADA claims and lawsuits

FAMILY MEDICAL LEAVE ACT• Family Medical Leave Act of 1993• Covered employers must grant leave for the

following reasons:following reasons:• Birth or adoption of a child • To care for the employee’s spouse, child or parent

with a serious health condition• To care for the employee’s own serious health

condition• Because of any “qualifying exigency” related to• Because of any qualifying exigency related to

military duty• To care for a covered military servicemember with a

serious injury or illness

FMLA• “Qualifying Exigency” Leave• Leave which arises out of the fact that the• Leave which arises out of the fact that the

spouse, child, or parent of an employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a “ ti ti ”“contingency operation.”

• Up to 12 weeks of leave.

FMLA• A non-exclusive list of reasons for qualifying

exigency leave include the following:

• short-notice deployment• military events and related activities• childcare and school activities• financial and legal arrangements• counseling• rest and recuperation

t d l t ti iti• post-deployment activities• additional activities, provided that the employer and

employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

FMLA• Caregiver Leave• Leave to care for a spouse child or parent• Leave to care for a spouse, child or parent

who is suffering from an injury or illness sustained while on active military duty

• Up to 26 weeks of leave in a “single 12-month period”p

º Employees may only take a combined total of 26 weeks of caregiver leave or other leave within any “single 12-month period.”

FMLA

• Other Important Changes:• General notice of employees’ rights

º Must be included in Employee Handbook orº Distributed to employees upon hire

• New Timing Requirementsº Eligibility Notice 5 business daysº Designation Notice 5 business daysº Medical Certification 5 business days

– Employee must return in 15 calendar days

FMLA

• USE THE NEW FORMS!!!!• General Notice• Medical Certifications• Eligibility Notice• Designation Notice• Qualifying ExigencyQualifying Exigency• Caregiver Leave

GENETIC INFORMATION NONDISCRIMINATION ACT

• GINA: “Genetic Information Nondiscrimination Act ofNondiscrimination Act of 2008”

• Gattaca anyone??

• Signed into law on May 21, 2008

GINA• Designed to protect individuals against discrimination

based on their genetic information when it comes to h lth i d l thealth insurance and employment

• First anti-discrimination law that was enacted to work proactively and prevent discrimination before it becomes entrenched in society

• Intended to encourage Americans to take advantage of genetic testing without fear of discrimination

What is “Genetic Information”?• An individual’s genetic tests

• Genetic tests of an individual’s family members

• Any manifestation of a disease or disorder in a family member

• Participation of an individual or family member in research that includes genetic testing counselingincludes genetic testing, counseling, or education

• Family medical history

What Does GINA Prohibit?• GINA essentially makes “genetic information” an

additional protected category under Title VII ofadditional protected category under Title VII of the Civil Rights Act of 1964.

• Thus, it is unlawful for an employer to refuse to hire, to discharge, or to otherwise discriminate against any employee with respect to the

ti t diti i il fcompensation, terms, conditions, or privileges of employment because of genetic information.

What Does GINA Prohibit?

• GINA also makes it unlawful for an employer to t i h ti i f tirequest, require, or purchase genetic information

with respect to an employee or a family member.

• Exceptions:• Inadvertent acquisition (e.g., overhearing a conversation)• Genetic information may be obtained under certain narrow

circumstances in connection with wellness programs which offer geneticcircumstances in connection with wellness programs which offer genetic testing

• A genetic monitoring program that monitors the biological effects of toxic substances in the workplace, but only if the monitoring is required by law

• A request for certifications under the FMLA• Purchase of documents that are publicly available

What Does GINA Prohibit?

• GINA prohibits harassment based on genetic i f ti Thi i l d ff iinformation. This can include offensive or derogatory remarks about the genetic information of a relative of the relative of an employee.

• Under GINA, it is illegal to retaliate against anUnder GINA, it is illegal to retaliate against an applicant or employee for filing a charge of discrimination or otherwise opposing discrimination.

GINA

• Don’t forget the new posting requirement!!• Be sure that all workplace posters are

current.

EMPLOYMENT LAW JEOPARDY

This type of class actionlawsuit is now filed morelawsuit is now filed morefrequently than any other type of federal workplace

class actionclass action.

In addition to meeting the so-called “job duties requirement”, an employee claiming overtime under the FLSA must also meet

this other requirement.

In determining whether someone is “substantially limited” under the ADAAAlimited” under the ADAAA, employers should resort to

this type of standard, without the need for

i i ifiresorting to scientific or medical evidence.

Under the ADAAA, all but this one type of mitigating yp g g

measure are no longer considered in

determining whether someone is disabled.

Eating, sleeping, standing, sitting, g, g,

reaching and lifting are all major examples this

under the ADA Amendments Act.

This type of leave allows for up to 12

k f l ifweeks of leave if an employee’s spouse,

child or parent is suddenly deployed tosuddenly deployed to active military duty.

Company X operates under a calendar year for purposes of granting standard FMLA leave. On February 1, 2010, an employee commences 21February 1, 2010, an employee commences 21 weeks of leave to care for his wife who was injured in Iraq. In October 2010, the same employee requests 12 weeks of leave for knee surgery. The employee is entitled to this amount of leave for his knee surgery under the FMLA.

Dispelling Common Myths About the FLSA’s Overtime Requirements

The Fair Labor Standards Act (FLSA) is a more complicated statute than most employers realize. Yet, rather than taking the time to educate themselves about the intricacies of this complicated statute, particular its overtime provisions, many employers are relying on common myths and misunderstandings that are circulating about the Act to justify their pay practices. As a result, according to the Department of Labor (DOL), a staggering 70% of employers are not in compliance with the FLSA. Many of these employers are finding themselves defending against a costly DOL investigation and/or collective action lawsuit and, therefore, are facing unexpected, unbudgeted financial (and even criminal) consequences. In fact, statistics show that FLSA collective actions are now filed more frequently than all other types of federal workplace class actions, including claims under the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act (Title VII), and the Employee Retirement Income Security Act (ERISA).

Most employers understand the basic tenet of the FLSA that requires employers to pay nonexempt employees overtime compensation for any hours worked in excess of 40 hours per workweek. Nonetheless, the most common complaints brought under the FLSA continue to be for violations of its overtime requirements. In 2007, the DOL reported that overtime violations represented roughly 90 percent of all collected FLSA back wages. So why are employers still finding themselves out of compliance with the FLSA? Well, all too often, employers inadvertently violate the FLSA because of simple misunderstandings of how the law works. Here are just a few of the most common myths and misunderstandings that have recently been at issue in lawsuits brought against employers under the FLSA:

“Our employees are all paid on a salary basis, therefore they are not entitled to overtime.” Just because an employee is “salaried” does not mean that he or she is exempt under the FLSA! If an employer could avoid having to pay overtime by placing everyone on a salary, hourly workers would disappear overnight. It’s not that easy. An employer must show not only that it pays its exempt employees on a “salary basis” (as defined in the DOL regulations) of at least $455 per week (or $23,140.00 annually), but also that the job duties of these employees bring them within one of the several statutory exemptions (e.g., executive, administrative, professional, computer professional, outside sales, highly compensated employees, etc.). Which leads to the next common myth . . .

“As long as our employees are given the job title of ‘manager’ or given at least some supervisory responsibility, we can classify them as exempt employees.” Wrong! Just as an employer cannot rely solely on the method of compensation to determine whether a group of employees are exempt from the FLSA overtime provisions, an employer also cannot ignore the job duties tests associated with each statutory exemption. The job duties test for determining whether an employee qualifies for one of the exemptions is a fact-intensive inquiry that must be applied on an employee-by-employee basis. For example,

just because one vice president at a company qualifies as exempt does not mean that all other vice presidents are also exempt. Likewise, merely placing the word “manager” in their job title, or even granting them some supervisory responsibility, does not automatically mean that employees in that job classification are exempt. Instead, an employer must look to the precise definitions provided by the regulations to determine the appropriate classification.

“Our employees all signed an agreement stating that they waived their right to receive overtime pay.” Guess what? Your agreement is unenforceable. In addition, you may have just made it much easier for a plaintiff’s attorney to prove that your company intended to willfully violate the FLSA. An employee may not waive his or her right to overtime pay.

“Our employees may be at work for 45 hours a week, but we dock 1 hour a day to account for meal periods and other breaks.” Many employers dock 30 or 60 minutes a day for the time that employees are presumed to be taking breaks. Big mistake! It is the employer’s burden to show how many hours an employee actually worked when defending a claim for overtime. If every employee in your workforce claimed that they worked through every meal break and rest period, yet you failed to track their time, you have a big problem. Make sure that you track your employees’ actual hours by having them clock in and out for breaks if necessary. Even where the job lends itself to allowing the employee to keep up with his or her own hours, it is nevertheless important for the employer to implement a system that holds the employee accountable for keeping accurate records.

“We don’t have to pay for overtime unless it was approved in advance.” There is nothing wrong with requiring employees to receive approval prior to working overtime, but overtime cannot be denied because they failed to do so. The FLSA makes no distinction between “approved” and “unapproved” overtime.

“We pay overtime, but we average our employees’ hours over two weeks.” Be careful with this one. Most employers pay their employees every two weeks, but for purposes of calculating overtime, the FLSA looks at each workweek in isolation and requires that overtime be paid for any hours worked in excess of 40 hours in a single workweek (some states like California impose even more restrictive overtime requirements). Thus, if an employee works 60 hours in one week, but doesn’t work at all the next week, you can’t average the two weeks together to arrive at 30 hours for each week. The employee should be paid for 20 hours of overtime in the first week. Also, the FLSA expressly forbids employers from manipulating the regular rate to avoid paying overtime to employees. Thus, it is unlawful for an employer to impose a fluctuating hourly rate that decreases as the number of hours worked – particularly those over 40 in a workweek – increases.

“The seminar that our employees attended last Saturday was ‘off-the-clock’, so we don’t need to pay overtime.” The FLSA requires employers to pay for any “hours worked,” which has a very broad meaning under the FLSA. In fact, “off-the-clock” cases have lately been some of the most prevalent FLSA cases filling the federal court dockets. This is because many employers do not realize that under certain circumstances

they are required to compensate employees for time spent in training, work performed away from the employer’s premises, waiting time, traveling time, etc.

“We conducted a worker classification audit five years ago, so I’m sure we’re in compliance.” Your business is constantly changing and so is the law. In 2004, the DOL revised the regulations relating to the exemptions for executive, administrative, professional, computer professional, outside sales and highly compensated employees. Moreover, courts often disagree, and even change their minds, as to whether certain job duties bring a position within one of the statutory exemptions. Conducting regular audits ensures that your company is doing everything possible to comply with the law and, in the worst case scenario, can be used in your defense if you are ever accused of willfully violating the FLSA.

Throughout the 1990s, the number of lawsuits filed under the FLSA hovered between 1,000 and 2,000 each year. By comparison, this number skyrocketed to approximately 4,400 in 2006. These statistics should be especially alarming in light of the penalties available for violating the FLSA. The most common penalties are damages to employees in the form of injunctive relief, back pay, prejudgment interest, attorneys’ fees, court costs and liquidated damages (sometimes called “double back pay”) for willful violations. However, did you know that the FLSA allows claims to proceed against individuals such as corporate officers and, in some cases, supervisors who willfully violate the Act? Or that the government has the ability to prosecute individuals and fine them up to $10,000 per violation, and that violators could face a prison sentence after a second conviction?

To help ease your mind, the above-discussed myths and misunderstandings are easily avoidable. Now that you are aware of some of the common myths about overtime, make sure that your company is not among the 70% that are not in compliance with the FLSA.

By: Tevis Marshall, Troutman Sanders Matt Almand, Troutman Sanders

WHAT EVERY EMPLOYER SHOULD

KNOW ABOUT THE NEW AMERICANS WITH DISABILITIES ACT:

THE ADA AMENDMENTS ACT OF 2008 (ADAAA) AND THE PROPOSED CHANGES TO

THE REGULATIONS

Tevis Marshall Troutman Sanders LLP

1001 Haxall Point Richmond, VA 23218

804-697-1200

Tevis.Marshall@TroutmanSanders.com

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THE ADA AMENDMENTS ACT OF 2008 Effective January 1, 2009

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008. The ADA Amendments Act of 2008 (“ADAAA”) took effect on January 1, 2009. The ADAAA was Congress’s attempt to respond to several Supreme Court decisions that have limited the ability of disabled persons to recover in discrimination lawsuits under the ADA. Although the ADAAA’s ultimate impact will not be known until lawsuits are brought and decided by the courts, the following changes are certain.

SUMMARY OF CHANGES The ADAAA retains much of the basic framework of the ADA; however, it expands the definition of several key terms and overturns some U.S. Supreme Court decisions that narrowed the scope of ADA protections. For example, the Act:

− Directs the EEOC to amend its regulations to redefine the term “substantially limits” − Expands the statutory definition of “major life activities” − Limits the use application of “mitigating measures” in disability determinations − Clarifies “episodic” impairments − Clarifies the “regarded as” prong of the disability definition − Emphasizes that “disability” should be interpreted broadly

DEFINITION OF DISABILITY IS BROADENED Under the original ADA, “disability” is defined as a physical or mental impairment that substantially limits one or more of the major life activities of the individual, a record of such impairment, or being regarded as having such an impairment. The ADAAA does not change that definition, but it directs the EEOC to interpret the “substantially limits” language more liberally than it has in the past. “Substantially limits” will be broadened to cover more conditions, including many that have been excluded by court decisions over the past decade. The effects of mitigating measures will no longer be considered in determining whether an impairment substantially limits a major life activity. Under the former interpretation of the ADA, if, through the assistance of medications or objects such as hearing aids or artificial limbs, an individual’s condition improved to the point of no longer substantially limiting a major life activity, that individual would no longer be considered disabled. Under the ADAAA, whether an individual is disabled will be determined by their condition without regard to the use of these mitigating measures (other than eyeglasses and contact lenses). So, even where the individual suffers from no limitations due to the use of a mitigating measure, he or she will still be considered disabled if they could be impaired without the mitigating measure. The ADAAA also covers conditions that are in remission but that would substantially limit a major life activity if they were active, such as multiple sclerosis and cancer.

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The ADAAA makes clear that an episodic impairment, or one in remission, is still a disability if it would substantially limit a major life activity when active. One example is an individual with cancer that was once active but is now in remission—the individual will now be considered disabled.

LIST OF MAJOR LIFE ACTIVITIES IS EXPANDED The original ADA included little statutory guidance as to what constituted a major life activity for purposes of determining whether an individual was disabled. The EEOC issued a list of major life activities, but many courts refused to adopt the list or narrowed the activities included. The ADAAA contains an expansive list of life activities, including: sleeping, reading, thinking, eating, concentrating, communicating, working, performing manual tasks, caring for oneself, standing, lifting, bending, seeing, hearing, speaking, learning, walking, and breathing. Also included are major bodily functions such as digestive, bowel, bladder, neurological, respiratory, circulatory, endocrine, and reproductive functions.

“REGARDED AS” DEFINITION IS CHANGED The ADAAA also lowers the standard to prove that an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, an individual claiming he or she was “regarded as” having a disability had to establish either that the employer mistakenly regarded the individual as having an impairment that substantially limited a major life activity or that the employer mistakenly believed that an actual impairment substantially limited the individual (when in fact it did not). The ADAAA now makes an employer liable under a “regarded as” theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, regardless of whether the impairment actually limits (or is perceived to limit) a major life activity. This significantly eases the evidentiary proof needed to establish a “regarded as” claim under the ADA. There is a bit of good news for employers, however, when dealing with those claiming they are regarded as disabled. The ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. It also clarifies that employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts of appeals were previously split.

FIVE GENERAL RULES OF CONSTRUCTION ANNOUNCED BY EEOC

As to the application of the lower standard for determining whether an impairment limits a major life activity, the EEOC has commented that the proposed regulations contain five general rules of construction. The first rule would provide that “[t]he focus in ADA cases should be on whether discrimination occurred, not on whether someone meets the definition of ‘disability’; the definition of ‘substantially limited’ should be construed broadly to the maximum extent allowable under the ADA; and the determination of whether someone has a disability should generally not demand extensive analysis.”

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The second proposed rule of construction provides that “an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform ‘activities of central importance to daily life.’”

The third rule provides that “an impairment that substantially limits one major life activity need not limit other major life activities to be considered substantially limiting.”

Citing to ADAAA regulations, the fourth proposed rule of construction provides that “comparison of an individual’s limitation to that of most people in the general population often may be made using a common-sense analysis without resorting to scientific or medical evidence.”

Finally, in response to anticipated confusion over the application of the transitory and minor exception to the “regarded as” definition of disability, the fifth proposed rule provides that “impairments that last for fewer than six months may still be substantially limiting.”

IMPAIRMENTS THAT WILL CONSISTENTLY MEET THE DEFINITION OF “DISABILITY”

The proposed changes to the regulations specifically list several impairments that will consistently meet the definition of the term “disability,” including the following:

• Blindness • Deafness • Intellectual Disabilities • Missing limbs • Mobility impairments requiring the use of a wheelchair • Autism • Cancer • Cerebral Palsy • Diabetes • Epilepsy • HIV/AIDS • Multiple Sclerosis and Muscular Dystrophy • Major Depression • Bipolar Disorder • PTSD • Schizophrenia

IMPAIRMENTS THAT MAY MEET THE DEFINITION OF “DISABILITY”

The proposed changes to the regulations list several impairments that may meet the definition of the term “disability,” including the following:

• Asthma • High Blood Pressure

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• Coronary Artery Disease • Learning Disabilities • A Back or Leg Impairment • Carpal Tunnel Syndrome • Psychiatric Disabilities (panic or anxiety disorder and forms of depression other

than major depression • Hyperthyroidism

IMPAIRMENTS THAT DO NOT MEET THE DEFINITION OF “DISABILITY” Temporary, non-chronic impairments of short duration with little or no residual side effects usually will not meet the definition of disability. Such conditions include:

• Common Cold • Seasonal or common influenza • Sprained joints • Minor and non-chronic gastrointestinal disorders • Broken bones which are expected to heal completely

Remaining conditions will likely be determined on a case-by-case basis, as was the practice under the original ADA.

THE FAMILY MEDICAL LEAVE ACT

What Every Employer Should Know About the Recent Changes

Tevis Marshall Troutman Sanders LLP

1001 Haxall Point Richmond, VA 23218-1122

804-697-1284 Tevis.Marshall@TroutmanSanders.com

______________________________________________________________________________

The Family Medical Leave Act of 1993 (FMLA) was enacted to “balance the demands of

the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”1 Many Human Resources professionals, however, might say that the FMLA’s primary purpose is to ensure an endless array of statutory and regulatory requirements which, although beneficial to employees, can sometimes prove to be extremely complex and frustrating to administer. In addition, the FMLA imposes numerous obligations, time limits and other compliance requirements on employees seeking to enforce their rights.

In a nutshell, the FMLA entitles eligible employees to unpaid leave for (i) medical

reasons; (ii) the birth or adoption of a child; (iii) care of a child, spouse or parent who has a “serious health condition”; (iv) leave that is needed to care for a military servicemember; or (v) “any qualifying exigency.” Upon returning from such leave, an employee is entitled to be returned to the same position he or she held when the leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.

Although the scope of the FMLA is far too broad to cover in a single session, the purpose

of this presentation is to highlight some of the key features of the FMLA, including the recent statutory revisions enacted as part of the National Defense Authorization Act of FY 2008, and the Department of Labor’s revised regulations issued in January 2009.

1 29 U.S.C. § 2601(b)(1).

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TABLE OF CONTENTS

I. COVERAGE AND ELIGIBILITY……………………………………………………4 A. Covered Employers …………………………………………………………….4 1. The “50 or More Employees” Rule 2. Definition of “employer” B. Public Agencies and Schools……………………………………………………4 C. Eligible Employees………………………………………………………………4 II. QUALIFYING REASONS FOR LEAVE……………………………………………..5 A. What Constitutes A “Serious Health Condition”?……………………………5 B. What Constitutes “Any Qualifying Exigency”?……………………………….8 C. What Is Military Caregiver Leave?.....................................................................9 III. NOTICE REQUIREMENTS………………………………………………………….10 A. Employers………………………………………………………………………10 1. General notice 2. Eligibility Notice 3. Rights and Responsibility Notice 4. Designation Notice B. Employees……………………………………………………………………….12 1. Foreseeable leave 2. Unforeseeable leave IV. MEDICAL CERTIFICATIONS………………………………………………………12 A. Timing of Request………………………………………………………………13 1. Employers 2. Employees B. Time to Cure a Deficiency ……………………………………………………..13 1. Timing 2. Failure to Provide Certification

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C. Authentication and Clarification………………………………………………14 D. Second and Third Opinions……………………………………………………15 1. Second Opinions 2. Third Opinions E. Recertification………………………………………………………….……….16 1. Timing 2. Content 3. Expense V. INTERMITTENT AND REDUCED SCHEDULE LEAVE…………….…………...17 A. Types of Leave…………………………………………………………………..17 1. Medical necessity 2. Birth or Placement 3. Any Qualifying Exigency Leave B. Scheduling Intermittent or Reduced Schedule Leave……………………..…18 C. Transfer or Reassignment………………………………………………...……18 VI. VOLUNTARY SETTLEMENTS…………………………...…………………………18 VII. NOTABLE FMLA CASES………………………………………………………...…..19 VIII. RESOURCES……………………………………………...……………………………23

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I. COVERAGE AND ELIGIBILITY A. Covered Employers - 1. The “50 or More Employees” Rule: Generally, smaller employers are not covered by the FMLA. An employer covered by the FMLA is “any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.”2 2. Definition of “employer”: Under the FMLA, an employer includes “any person who acts directly or indirectly in the interest of an employer to any of the employer’s employees.”3 Accordingly, individuals such as corporate officers “acting in the interest of an employer” may be individually liable for any violations of the requirements of the FMLA.4 B. Public Agencies and Schools - Public agencies and public and private elementary and secondary schools are covered by the FMLA without regard to the number of employees.5 C. Eligible Employees Not all employees are eligible for FMLA leave. An “eligible employee” is an employee of a covered employer who: 1. Has been employed by the employer for at least 12 months; and 2. Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and 3. Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.6 The 12 months that an employee must have been employed by the employer need not be consecutive months. Employees may count prior months of service with an employer as far back

2 29 C.F.R. § 825.104(a). 3 29 C.F.R. § 825.104(d). 4 Id. 5 Id. 6 29 C.F.R. § 825.110(a).

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as seven years, or longer if the break in service was occasioned by (i) the fulfillment of the employee’s National Guard or Reserve military service obligation or (ii) by written agreement (including collective bargaining agreements).7 II. QUALIFYING REASONS FOR LEAVE Covered employers must grant FMLA leave to eligible employees for the following reasons: 1. For the birth of a child (12 weeks); 2. For adoption/foster care of a child (12 weeks); 3. To care for the employee’s spouse, son, daughter, or parent with a serious health condition (12 weeks); 4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (12 weeks); 5. Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) (12 weeks); or 6. To care for a covered servicememeber with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (26 weeks).8 A. What Constitutes A “Serious Health Condition”? A serious health condition is an illness, injury, impairment or physical or mental condition that involves either:

1. Inpatient care - defined as an overnight stay in a hospital, hospice

or residential medical facility, including any period of incapacity (e.g., the inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom) or any subsequent treatment in connection with such inpatient care;9 or

7 29 C.F.R. § 825.110(b). 8 29 C.F.R. § 825.112(a). 9 29 C.F.R. § 825.114.

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2. Continuing treatment by a healthcare provider - defined as any one or more of the following:10

(a) Incapacity and treatment – A period of incapacity of more

than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(i) treatment two or more times within 30 days of the

first day of incapacity, unless extenuating circumstances exist, by a healthcare provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g. physical therapist) under orders of, or on referral by, a health care provider; or

(ii) at least one treatment by a healthcare provider,

which results in a continuing regimen of treatment under the supervision of the health care provider.

Note - The requirements set forth above for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. Also, whether additional treatment visits or a regimen of continuing treatment is necessary within the 30- day period shall be determined by the health care provider.11

(b) Pregnancy or prenatal care - Any period of incapacity due to pregnancy, or for prenatal care. Absences under this paragraph qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days.

(c) Chronic conditions - Any period of incapacity or treatment

for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(i) requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a

10 29 C.F.R. § 825.115. 11 29 C.F.R. § 825.115(a)(3).

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nurse under direct supervision of a health care provider;

(ii) continues over an extended period of time

(including recurring episodes of a single underlying condition); and (iii) may cause episodic rather than a continuing period of incapacity (e.g. asthma, diabetes, epilepsy, etc.).

Note - Absences under this paragraph qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days.

(d) Permanent or long-term conditions - A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g. Alzheimer's, a severe stroke, or the terminal stages of a disease). The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider.

(e) Conditions requiring multiple treatments - Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for: (i) restorative surgery after an accident or other injury; or (ii) a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

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B. What Constitutes “Any Qualifying Exigency”? Leave for “any qualifying exigency” is leave that arises out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a “contingency operation.”12 Employers can request certifications for qualifying exigency leave to determine if an operation qualifies as a “contingency operation.” A non-exclusive list of reasons for such leave include the following: a. short-notice deployment b. military events and related activities c. childcare and school activities d. financial and legal arrangements e. counseling f. rest and recuperation g. post-deployment activities h. additional activities, provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.13 12 The term “contingency operation” means a military operation that-- (A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title [10 USCS § 688, 12301(a), 12302, 12304, 12305, or 12406], chapter 15 of this title [10 USCS §§ 331 et seq.], or any other provision of law during a war or during a national emergency declared by the President or Congress. 10 U.S.C. § 101(a)(13). 13 29 C.F.R. § 825.126.

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C. What Is Military Caregiver Leave? On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (“NDAA”), which created new FMLA rights specific to military family members. The NDAA amended the FMLA rights of military family members in two important respects. It provided leave for “any qualifying exigency” (discussed above) and caregiver leave. First, as amended, the FMLA now permits an employee who is a “spouse, son, daughter, parent, or next of kin” of a military servicemember to take up to 26 workweeks of leave in a “single 12-month period” to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness” sustained while on active military duty.14 Employers should be aware that the “single 12-month period” during which employees may take caregiver leave begins on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons (i.e. calendar year, fiscal year, “rolling” period, etc.).15 The new regulations further provide that an eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in a “single 12-month period,” provided that the employee may not take more than 12 workweeks of leave for any other FMLA-qualifying reason. However, this presents a unique scenario in which an employee may be allowed up to 38 weeks (9 months) of FMLA leave in a year. Consider the following example: Example #1 – Assume that an employer elected a calendar year for purposes of determining when its employees may take their standard 12 weeks of FMLA- qualifying leave. On January 1, 2009, an employee begins taking 12 weeks of leave under the FMLA due to a serious health condition. On April 1, the employee returns to work and has now exhausted the standard 12 weeks of leave allowed during the 12-month period established by the employer. However, in July 2009, the same employee requests leave to care for a military servicemember. Since the “single 12-month period” allowed for caregiver leave is separate from the 12 weeks of leave for standard FMLA-qualifying events, and does not begin to run until the employee begins taking such leave, the employee should be allowed to take an additional 26 weeks of leave. Thus, the employee could take up to 38 weeks of leave during 2009. However, consider the previous example under slightly different facts:

Example #2 – Assume that an employer elected a calendar year for purposes of determining when its employees may take their standard 12 weeks of FMLA-qualifying leave. On January 1, 2009, an employee begins to take leave to care

14 29 C.F.R. § 825.127. 15 29 C.F.R. § 825.127(c)(1).

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for a military servicemember. The employee returns to work after 26 weeks. One month later, the same employee requests FMLA leave for his or her own qualifying illness. The employee is not entitled to additional FMLA leave because an eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in a “single 12-month period,” which, in this case, began on January 1, 2009. Thus, the employee cannot take additional FMLA leave until January 1, 2010.

III. NOTICE REQUIREMENTS A. Employers - 1. General notice – Employers must “post” a notice providing information on employees’ rights under the FMLA (including the procedures for filing complaints of violations of the FMLA).16 This requirement may be fulfilled by physically posting the Department of Labor’s proposed general notice (Form 1420) in a conspicuous place, or by posting electronically, provided that each employee has access to the posted information (i.e. each employee must have access to a computer). In addition, the regulations require that general notice must also be provided in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring.17 2. Eligibility Notice – When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within 5 business days, absent extenuating circumstances.18 Notice may be oral or in writing. Form WH- 381 may be used by employers to satisfy this requirement. 3. Rights and Responsibility Notice – Employers must also provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of failure to meet these obligations.19 This may include certification requirements, the employee’s right to substitute paid leave, any requirements for employees to make premium payments to maintain health benefits, etc. Part B of Form WH-381 may be used by employers to satisfy this requirement.

16 29 C.F.R. § 825.300(a). 17 29 C.F.R. § 825.300(a)(3). 18 29 C.F.R. § 825.300(b). 19 29 C.F.R. § 825.300(c).

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4. Designation Notice – Employers must also inform employees if the requested leave is FMLA-qualifying. When an employer has enough information to determine whether the leave is being taken for a FMLA- qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within 5 business days absent extenuating circumstances.20 If an employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination. If the employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, the employer must inform the employee of this designation at the time of designating the FMLA leave. Form WH-382 may be used by employers to satisfy this requirement. Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights. For instance, an employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.21 The previous regulations imposed a penalty against employers who were untimely in meeting the notice requirements set forth above. Initially, there was a prohibition against retroactive designations of FMLA leave. The previous regulations stated that an employee’s paid or unpaid leave did not count against his or her FMLA leave entitlement when the employer failed to properly designate the leave as FMLA leave. The U.S. Supreme Court struck down that penalty provision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S. Ct. 1155 (2002), indicating that the penalty was counter to the intent of the FMLA. Ragsdale suggested that the penalty provision required an employee to demonstrate that individual harm resulted from an employer’s failure to properly designate the leave as FMLA-covered. In response to the decision in Ragsdale, the new regulations provide that a retroactive designation of FMLA leave may be appropriate in certain circumstances, provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee.22 If an employer’s failure to timely designate leave causes the employee to suffer harm, it may constitute an interference with, restraint of, or denial of the exercise of an employee’s FMLA rights.23

20 29 C.F.R. § 825.300(d). 21 29 C.F.R. § 825.300(e). 22 29 C.F.R. § 825.301(d). 23 29 C.F.R. § 825.301(e).

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B. Employees 1. Foreseeable leave – An employee must provide at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or of a family member, or the planned medical treatment for a serious injury or illness of a covered servicemember. If 30 days notice is not practicable, notice must be given as soon as practicable (i.e. the same day or the next business day).24 2. Unforeseeable leave - When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.25 It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. If an employee fails to provide notice, the employer may, in some circumstances, delay the taking of FMLA leave. In all cases, in order for the onset of an employee’s FMLA leave to be delayed due to lack of required notice, it must be clear that the employee had actual notice of the FMLA notice requirements (i.e. by posting the general notice requirements).26 In cases of foreseeable leave, an employer may delay notice until 30 days after notice is received.27 In cases of unforeseeable leave or foreseeable leave which is less than 30 days, the regulations provide that “the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case.”28 IV. MEDICAL CERTIFICATIONS Medical certifications play an important role in determining whether an employee is entitled to take leave under the FMLA. In essence, certifications allow employees to provide information to their employers for the purpose of determining whether the need for leave is FMLA-qualifying. Certifications may be requested when an employee seeks leave due to: 1. Serious health conditions - (relating to the employee or the employee’s spouse, son, daughter, or parent). Form 380-E may be used for an employee’s own serious health condition, and Form 380-F may be used for a family member’s serious health condition.

24 29 C.F.R. § 825.302(a), (b). 25 29 C.F.R. § 825.303. 26 29 C.F.R. § 825.304 27 29 C.F.R. § 825.304(b). 28 29 C.F.R. § 825.304(c), (d).

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2. Qualifying exigency leave – Form 384 may be used by employers. 3. Military caregiver leave – Form 385 may be used by employers. A. Timing of Request 1. Employers - In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within 5 business days thereafter, or, in the case of unforeseen leave, within 5 business days after the leave commences.29 An employer may request certification at some later date if it has reason to question the appropriateness of the leave or its duration.30 2. Employees - Employee must provide a certificate within 15 calendar days after an employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.31 a. The fact that an employee follows up with a health care provider will be evidence of the employee’s diligent, good faith efforts to provide timely certification.32 b. “Employers should be mindful that employees must rely on the cooperation of their health care providers and other third parties in submitting the certification and that employees should not be penalized for delays over which they have no control.”33 B. Time to Cure a Deficiency - 1. Timing - Employees are allowed 7 calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure deficiencies in their certifications only if the certification is:

29 29 C.F.R. § 825.305(b). 30 Id. 31 Id. 32 70 Fed. Reg. 68,011. 33 Id.

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a. Incomplete – Certification is considered to be incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed; or b. Insufficient – Certification is considered to be insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or non-responsive.34 2. Failure to Provide Certification - If an employee fails to provide the employer with a complete and sufficient certification, despite the opportunity to cure the certification, or fails to provide any certification, the employer may deny the taking of FMLA leave.35 Note - “The Department [of Labor] has decided not to require employers to provide notice to employees when a certification is not received because of the administrative burden this would impose.”36 C. Authentication and Clarification - If an employee submits a “complete” and “sufficient” certification, the employer may not request additional information from the health care provider.37 However, the employer may contact the health care provider for purposes of clarification and authorization of the medical certification after the employer has given the employee an opportunity to cure any deficiencies. 1. Definitions - a. “Authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested.38 b. “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers cannot request any additional information beyond that required by the certification form.39

34 29 C.F.R. § 825.305(c). 35 29 C.F.R. § 825.305(d). 36 70 Fed. Reg. 68,011. 37 29 C.F.R. § 825.307(a). 38 Id. 39 Id.

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An employer may contact an employee’s health care provider after the employee has been given the opportunity to cure any deficiencies. However, employers may only contact an employee’s health care provider through the use of: 1. a health care provider; 2. a human resources professional; 3. a leave administrator; or 4. a management official. Under no circumstances may an employee’s direct supervisor contact the health care provider.40 D. Second and Third Opinions - 1. Second Opinion - An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.41 a. The employee is provisionally entitled to the benefits of the Act while the second opinion is pending.42 b. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employers established leave policies.43 c. FMLA leave may be denied if an employee or an employee’s family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition at issue if requested by the health care provider designated to provide a second opinion in order to render a sufficient and complete second opinion.44 d. An employer may choose the health care provider rendering second opinion, but it cannot be one that is employed on a regular basis by the employer. Furthermore, an employer may not regularly contract or utilize the services of the health care provider

40 Id. 41 29 C.F.R. § 825.307(a). 42 29 C.F.R. § 825.307(b)(1). 43 Id. 44 Id.

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furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (i.e. a rural area where no more than one or two doctors practice in the relevant specialty in the vicinity).45 2. Third Opinion – If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a 3rd provider, again at employer’s expense. This decision is final and binding.46 a. Designation of the third health care provider must be approved jointly by the employer and employee.47 b. Employers and employees must act in good faith in selecting a provider. If not, either party risks becoming bound to the unfavorable decision.48 c. FMLA leave may be denied if an employee or an employee’s family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition at issue if requested by the health care provider designated to provide a third opinion in order to render a sufficient and complete third opinion.49 E. Recertification 1. Timing – An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee.50 If the certification indicates that the minimum duration of the condition is more than 30 days, an employer cannot request certification until this period expires unless: a. the employee requests an extension of leave; b. the circumstances described by the previous certification have changed significantly; or

45 29 C.F.R. § 825.307(b)(2). 46 29 C.F.R. § 825.307(c). 47 Id. 48 Id. 49 Id. 50 29 C.F.R. § 825.308(a).

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c. the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.51 Employers must allow at least 15 calendar days for an employee to provide recertification, unless not practicable under the particular circumstances.52 2. Content - As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.53 3. Expense – Any recertification is at the employee’s expense unless the employer provides otherwise.54 V. INTERMITTENT AND REDUCED SCHEDULE LEAVE FMLA leave may be taken “intermittently or on a reduced leave schedule” under certain circumstances.55 Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday (i.e. full-time to part-time). A. Types of Leave – FMLA leave may be taken intermittently or on a reduced leave schedule for the following reasons: 1. Medical necessity - For intermittent leave or leave on a reduced leave schedule taken because of one’s own serious health condition, to care for a parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. Leave for a medical necessity may be taken for planned and/or unanticipated medical treatment. It may also be taken to provide care or

51 29 C.F.R. § 825.308(b), (c). 52 29 C.F.R. § 825.308(d). 53 29 C.F.R. § 825.308(e). 54 29 C.F.R. § 825.308(f). 55 29 C.F.R. § 825.202(a).

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psychological comfort to a covered family member.56 2. Birth or Placement - When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees.57 3. Any Qualifying Exigency Leave - Leave due to any qualifying exigency may be taken on an intermittent or reduced leave schedule basis.58 B. Scheduling Intermittent or Reduced Schedule Leave – If an employee needs leave intermittently or on a reduced schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.59 C. Transfer or Reassignment - If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.60 VI. VOLUNTARY SETTLEMENTS Under the old regulations, it was not clear whether employees could release claims under the FMLA through voluntary settlement agreements. In Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2006), the Court held that the plain language of 29 C.F.R. § 825.220(d), which provided that “employees cannot waive, nor may employers induce employees to waive, their rights under FMLA,” precluded both the prospective and retrospective waiver of all FMLA rights, including the right of action (or claim) for a past violation of the FMLA. The Department of Labor contended that the regulation was designed to bar only the prospective waiver of FMLA rights; however, the law of the Fourth Circuit after Taylor made it virtually impossible for employers to enter into severance agreements with a full release of claims relating to the FMLA. The revised regulation solved this problem for employers and now expressly states:

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective

56 29 C.F.R. § 825.202(b). 57 29 C.F.R. § 825.202(c). 58 29 C.F.R. § 825.202(d). 59 29 C.F.R. § 825.203. 60 29 C.F.R. § 825.204(a).

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bargaining representatives) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the Department of Labor or a court…61

VII. NOTABLE FMLA CASES A. Eligibility In Reynolds v. Inter-Industry Conference on Auto Collision Repair, 2009 U.S. Dist. LEXIS 4686 (N.D. Ill. Jan. 29, 2009), the court held that employees may still be entitled to some protection from interference with their prospective FMLA rights prior to becoming eligible to exercise such rights. The plaintiff had worked for his employer for approximately 11 months when his pregnant fiancée went into premature labor. After she gave birth, the plaintiff asked for FMLA leave to care for the child once his fiancée’s medical leave ran out, by which time he would have worked for his employer for more than 12 months and would have been eligible for FMLA leave. Later on the day of his request, the plaintiff was told that he had been fired for reasons “purely related to his skill set.” The employer argued that the plaintiff had no claim under the FMLA because, at the time of his termination and FMLA leave request, he was not an “eligible employee” under the FMLA since he had not yet worked with the company for at least 12 months. The court disagreed, and noted that its holding was the only logical choice in light of the FMLA’s requirement that employees provide 30 days notice where the need for leave is foreseeable. Although the plaintiff was theoretically “ineligible” at the time he requested leave, dismissing his FMLA claim would have punished him for providing ample notice. B. Medical Certifications and FMLA Paperwork Where the medical certifications an employee submitted were suspicious, contradictory, and unreliable, the FMLA did not protect a hospital worker from being fired for absenteeism. In Novak v. Metrohealth Med. Ctr., 503 F.3d 572 (6th Cir. 2007), the employee told her employer that she had a painful back condition, but she gave the employer several medical certifications that were incomplete or inconsistent with her description of her symptoms and failed to document a condition qualifying for FMLA leave. The Court held that such forms were insufficient to establish the existence of a serious health condition for the purposes of the FMLA. The employer had satisfied its duty to inform the employee that her certification was deficient, yet the additional forms she submitted did not cure the deficiency. Furthermore, the fact that the employer had failed to require a second opinion did not preclude it from contesting the employee’s certification. In Peery v. CSB Behavioral Health Sys., 2008 U.S. Dist. LEXIS 76627 (S.D. Ga. Sept. 30, 2008), a former employee alleged a FMLA violation even though it was undisputed that he had never returned the required FMLA paperwork. The employee had not filled out the necessary paperwork, but claimed that his employer told him that the forms were not necessary. The court held that he had not availed himself of a protected right, and thus he had no case for a

61 29 C.F.R. § 825.220(d).

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FMLA violation. The court followed the lead of other courts within the 11th Circuit and declined to apply the doctrine of equitable estoppel to FMLA eligibility certifications. C. Employer Notice The Seventh Circuit took “constructive notice” to another level in Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 2007). In that case, an employee with no documented history of misconduct or health problems had an extreme emotional and physical response to a stray dog entering her workspace and continued to demonstrate erratic and emotional behavior in the days following. The court held that a jury could find that her behavior was so bizarre that it amounted to constructive notice of the need for leave under the FMLA and that doctor’s notes and testimony, even without explicitly referencing the FMLA, could establish that the employee suffered from a serious health condition. Therefore, the employee was entitled to a trial on her FMLA claims. A two-year gap between an employee’s last use of FMLA leave and his current related request was insufficient to break the linkage for employer notice purposes in Fritz v. Phillips Service Industries, Inc., 2008 U.S. Dist. LEXIS 38266 (E.D. Mich. May 12, 2008). In 2003, the employer had granted the employee FMLA leave to undergo surgery on his right knee. The employee requested leave on May 2, 2005, due to right knee pain. The employer was also aware that the employee was scheduled to undergo another surgery on his right knee on May 24, 2005. On these facts, the court found that the employer had clear notice that the employee had a serious health condition related to his right knee sufficient to shift the burden of inquiry to the employer to determine whether his May 2, 2005, request may be covered by the FMLA. Terminating an employee for unexcused absences beyond the 12-week FMLA leave period is not a FMLA violation. In Edwards v. Heatcraft, Inc., 2008 U.S. Dist. LEXIS 11596 (M.D. Ga. Feb. 15, 2008), an employee remained out of work beyond 12 weeks based on a misunderstanding regarding the amount of FMLA leave available. Her supporting medical certification indicated that she would need leave from April 16 to November 16 but also indicated the probable duration of her condition to December 6, 2004. Based on the medical certification, the employee believed that she had until December 5 to return to work but the employer properly designated 12 weeks of her leave as FMLA and so informed the employee. After the expiration of 12 weeks of FMLA leave but before December 6, the employee ignored the employer’s repeated requests to return to work or face discipline for unexcused absences and she was terminated. The court found no FMLA violation because her right to job-protected FMLA leave expired 12 weeks after her leave began. D. Internal Employer Policies Employers can, knowingly or unknowingly, adopt family and medical leave policies that are more generous than the minimum required by the FMLA. In Peters v. Gilead Sciences, Inc., 2008 U.S. App. LEXIS 14894 (7th Cir. July 14, 2008), the 7th Circuit pointed out the risks of doing so by holding that violation of those more generous policies may be a breach of contract or a claim for promissory estoppel based on the employee’s detrimental reliance on the employer's policy. The company’s policy did not include the FMLA requirement that employees be

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employed at a worksite that employs at least 50 employees within 75 miles. The employee was not entitled to FMLA leave because he did not work at a worksite where there were at least 50 employees within 75 miles, but the court held that he still had a valid claim against the employer. Such a claim is not based on the FMLA, nor will the employer be able to successfully defend these types of actions by arguing that the FMLA does not apply. If an employer has an employee handbook in which FMLA leave is discussed, it should clearly state its basis for calculating the FMLA leave year, or else an employee will be able to choose the method most beneficial for him. Such was the holding of Spencer v. Marygrove College, 2008 U.S. Dist. LEXIS 65515 (E.D. Mich. Aug. 26, 2008). There, the employer’s handbook stated that “[e]mployees are entitled to take up to 12 weeks unpaid leave per year,” without explicitly referring to its fiscal year, and so the plaintiff employee could choose the calendar year as the basis for her leave calculation. Since the calendar year method applied, the employer violated her FMLA rights since it terminated her ten days before the expiration of her available leave period. E. FMLA Leave as a Factor in Employment Decisions An employer is not allowed to use its employee’s decision to take FMLA leave as a factor in its employment decisions. In Martin v. Brevard County Public Schools, 2008 U.S. App. LEXIS 20580 (11th Cir. 2008), a payroll supervisor took FMLA leave during a period in which he was on a performance improvement plan. His employer did not renew his contract because he failed to fulfill the improvement plan. The 11th Circuit, however, held that the record did not establish beyond dispute that his employer would have discharged the employee had he not taken FMLA leave, and therefore his FMLA interference claim survived summary judgment. Similarly, in Wojan v. Alcon Laboratories, Inc., 2008 U.S. Dist. LEXIS 69576 (E.D. Mich. Sept. 15, 2008), the employee did not meet her sales quota because she took 12 weeks of FMLA leave and the employer did not adjust her sales quota to account for her leave. The court found the employer had used the employee’s FMLA leave as a negative factor in her evaluation. F. FMLA Interference Claims An employer that discourages an employee from taking FMLA leave may be liable for interfering with an employee’s FMLA rights even though the employer ultimately grants all FMLA leave requested. In Jennings v. Ford Motor Co., 2008 U.S. Dist. LEXIS 62761 (S.D. Ind. Aug. 15, 2008), the employer argued that the employee could not establish an unlawful interference claim because he was not denied any FMLA benefits and denial of FMLA benefits is one of the five factors that an employee must prove to establish an FMLA interference claim. The court modified the fifth element of a FMLA interference claim to require that the employer deny the employee FMLA benefits or interfere with FMLA rights to which the employee was entitled. Thus even if there was not an outright denial of FMLA leave, an employee’s interference claim may still survive if the employer discouraged him from exercising his FMLA rights.

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A police officer requested FMLA leave from the police department but was told FMLA leave was not an option in Santiago v. New York City Police Department, 2007 U.S. Dist. LEXIS 91880 (S.D.N.Y. Dec. 14, 2007). His FMLA interference claim was defeated by the fact that he failed to utilize a known paid leave alternative provided by the employer, even though the employer had acted in violation of the FMLA. Furthermore, the employee could not establish that he was injured by the denial of FMLA leave because “[n]o injury can result when the available alternative [paid sick leave] is superior to the FMLA remedy.” G. Serious Health Condition: What Qualifies? In Scott v. Honda Manufacturing of Alabama, LLC, 2008 U.S. App. LEXIS 6054 (11th Cir. Mar. 20, 2008), the 11th Circuit held that the employee's mother did not have a chronic serious health condition entitling the employee to FMLA leave because the employee presented no evidence that her mother’s condition required periodic visits for treatment by a health care provider or continued over an extended period of time. The employee's mother underwent testing after experiencing shortness of breath in September 2005. The only other appointment was for a heart catheterization on October 25, 2005, from which she completely recovered within 48 hours. There was no evidence of medical follow up regarding the heart catheterization. H. Intermittent Leave The Sixth Circuit held that a customer service representative who was approved in September 2004 for intermittent leave under the FMLA was not entitled to carry over that approval into 2005. In Davis v. Mich. Bell Telephone Co., 2008 U.S. App. LEXIS 20438 (6th Cir. Sept. 29, 2008), the appeals court found that at the start of the new 12-month leave period at the beginning of calendar year 2005, the employer was entitled to re-evaluate the employee’s eligibility because the approved intermittent leave could only extend to the end of the 12-month leave period in which it began. If it were to hold otherwise, the court noted, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination. The employee worked less than 1,250 hours during the preceding 12 months and therefore was not eligible for FMLA leave in 2005, so the employer did not violate FMLA by firing her in early 2005 for absenteeism.

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VIII. RESOURCES

• A complete copy of the Department of Labor’s revised regulations and corresponding commentary is available at:

http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763

• All of the FMLA forms mentioned above are available at: http://www.dol.gov/esa/whd/fmla/finalrule.htm

• A copy of the National Defense Authorization Act of 2008 is available at: http://www.dol.gov/esa/whd/fmla/fmlaAmended.htm Disclaimer – The foregoing materials are not comprehensive and are not intended to be a substitute for the Department of Labor’s regulations with respect to the Family Medical Leave Act. Attorneys should always review the full text of the regulations or the statute when dealing with issues relating to the FMLA.

68130 Federal Register / Vol. 73, No. 222 / Monday, November 17, 2008 / Rules and Regulations

Appendix H to Part 825—Certification for Serious Injury or Illness of Covered Servicemenber for Military Family Leave (Form WH-385)

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68133 Federal Register / Vol. 73, No. 222 / Monday, November 17, 2008 / Rules and Regulations

[FR Doc. E8–26577 Filed 11–14–08; 8:45 am] BILLING CODE 4510–27–C

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