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OOPS...Even HR Doesn't Always Get It Right
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Oops #1
: On September 27, 2017 the US EEOC
announced
that it filed a lawsuit on behalf of an employee whom the agency alleged had been fired in violation of the Americans with Disabilities Act (ADA). Almost 13 months to the day (10-18-18) a judge agreed. OK, maybe that's not news. But what is intriguing about this case is that HR played a key role, not in a good way. This was also a three-fer! The lawsuit alleged discrimination based on: (1) actual disability; (2) being regarded as having a disability; and (3) having a history of a disability.
When an employee began having a variety of medical issues, he provided supporting documentation to HR. HR then emailed the employee's manager. The message started out just fine. HR recapped what the doctor said. But then she shared her own opinion, "[H]is doctor says he doesn’t need to be working in this environment with all the health problems he has. He said the doctor told him he should get on disability. That automatically raised a red flag for me...this really bothers me." Even though the employee was able to perform the essential functions of his job with reasonable accommodation, his supervisor subsequently fired him. Did HR's email have anything to do with that? The judge felt it did and decided the matter should go to trial for a jury to decide. Oops.
Oops #2
: This one's a two-fer. An employee sued for FMLA interference and retaliation. An employee needed surgery and was less than three weeks shy of being eligible for FMLA, job-protected leave. So, on HR's advice, she scheduled the surgery three weeks' out. HR then comes back to the employee and tells her to keep herself safe and avoid any further damage (hip, knee and foot issues), leave work that day, reschedule the surgery for as soon as possible, and not return until after she has recovered from the surgery. The HR rep reassures the employee that: (1) she would work with her to ensure that her FMLA would be approved; and (2) her job would still be there for her when she returned. The employee follows the instructions, has the surgery and is subsequently told her FMLA leave application is denied because she is not yet eligible and that her job has been filled. [Ouch!!] This one is a stinker, no matter how you look at it. The employee is left out in the cold with no income or job because she relied on what HR told her.
But, as lousy as the outcome is, can an employer interfere with a right that an employee does not yet have? Guess what the judge decided. Yes, and the case will move forward. Why? Two reasons: (1) if an employer misleads an employee regarding her FMLA eligibility, the employer is estopped or prevented from then using ineligibility as a defense to the employee's claim (AKA - you cannot win by using trickery, intentionally or otherwise); and (2) the FMLA requires employees to give advance notice of an absence, where possible. That creates a loophole where employers could fire every employee who gives notice before they are eligible, with no recourse. "Such an interpretation is inconsistent with the FMLA and the purpose of the Act."
Lessons learned
: Best of intentions do go awry. (1) Don't make promises that you can't keep; (2) keep your opinions to yourself (as
Sgt. Joe Friday
would say, "Just the facts, Ma'am).
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No, this article is not about tipsy party escapades (maybe next month). It is about mishaps that can occur when it comes to employees taking time off during the holiday season. So let's brush-up and cover a few basic reminders.
Days Off B/A a Holiday
: I still read a fair number of policies in Employee Handbooks that inform employees that if they are absent the day immediately before or after a holiday, they are not eligible for and will not be paid for the holiday. That policy can be properly applied to your non-exempt employees. But your exempt employees should be paid for the holiday, even if they are absent the day before or after it. The federal regulations read, "an
exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked...An employee is not paid on a salary basis if deductions from the employee's predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available." Is there an exception? Of course! "
Exempt employees need not be paid for any workweek in which they perform no work."
Holidays During FMLA Leave
: If a holiday occurs during an employee's FMLA leave, do you count the day against the employee's FMLA entitlement? You'll love this one..."it depends!" The federal regulations cover three scenarios:
- A holiday during a full week of FMLA leave: read, "For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.
- A holiday while an employee is using incremental FMLA leave: "However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday."
- A holiday where the employer closes the facility for one or more weeks: "Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement."
So, dot your i's and cross your t's to ensure your employees receive their proper pay this holiday!
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2018 kind of stunk. We lost six friends and family this year, including both of my parents. I welcome 2019. Having said that, I also found more in 2018 for which to be grateful than sad. So, as this year comes to a close, I pause to say, "I appreciate you." I wish you a very warm and wonderful holiday season. Thank you for your support over this last year, the 15 years before that since FiveL Company's inception (Wow!), and I look forward to staying in touch throughout the upcoming year. Stay well, warm and happy.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any matter.
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