Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
                  June 18, 2018


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At the beginning of 2018, PSB Legal published a seven-part series for employers on the proper way to investigate harassment charges in light of the #MeToo movement.  This past Thursday, the EEOC filed its first round of lawsuits in response to the publicity generated by the #MeToo movement, with the aim of "channeling the energy to create significant and sustainable change."   The lawsuits immediately followed the reconvening of the Select Task Force on Harassment, and reflect the government's use of litigation as its strongest enforcement tool.
The lawsuits  were brought against various employers, in various parts of the country, in various industries, and cover "all bases" of harassment, e.g., race, gender, same-sex.  The lawsuits alleged wrong doing by not only owners, managers, and supervisors, but also independent contractors and franchisees.  Details of the lawsuits can be found on the EEOC's website under press releases.  Click here.  ( print=1)
The current Chair of the EEOC, Victoria Lipnic, is a Trump nominee.  She has a reputation of being fair and sensible in enforcing EEO mandates. If you made a new year's resolution to get serious about this issue in your workplace, and have failed to keep it, rest assured it is not too late.  But do not wait until you get an unwelcome charge from the EEOC.  Call any PSB attorney if you need to develop a compliance plan for your organization.
The federal Family and Medical Leave Act of 1993 has proven to be one of the most far-reaching laws ever passed into law. It fundamentally re-defined the balance employers must strike between their own work attendance requirements and their employees' need for leave for childbirth and adoption purposes as well as leave to attend to their own serious health condition and that of certain family members. Our clients pose questions to us  about this law nearly every day, and undoubtedly most of you are required to apply every day to one employee or another. We developed a quiz on the FMLA where you can test your knowledge about the application of this important law:

1. If a state has its own family and medical leave act, it is only necessary that an employer apply the provisions of that state law to all employees working throughout the state, as the federal law is preempted.
FALSE. An employer is required to apply more favorable state or local law, and nothing in the federal law "preempts" the requirement to follow more favorable state law. Wisconsin, of course, has a law that is , in many ways more favorable to employees that the federal FMLA.
2. If an employee has used all of the FMLA leave she is entitled to in a given period of time, she can be terminated if the employer has a consistent policy of terminating employees after they take 12 weeks of leave.
FALSE. This is probably the biggest mistake that an employer can make in administering their leave policies. Employees who have used up, or are ineligible for FMLA leave other reasons, MUST be considered for leave under ADA or state disability laws if they are a qualified individual with a disability as defined in ADA or a comparable state law.
3. If an employee is not yet eligible for FMLA because they have not worked enough hours, they can be denied leave under ADA as well.
FALSE. For the same reason as 2.
4. If two employees who are working for the same employer either have a baby through childbirth or adopt a child, they can be required to split the 12 weeks of Federal FMLA afforded for such an event. 
TRUE.  There is a provision of the Federal FMLA that allows this. It may not be the case under state law which should be checked before requiring a split.
5. While an employee is on FMLA leave an employer must cover the cost of health insurance for the employee if they cannot afford it because FMLA leave is otherwise unpaid.
FALSE. The leave is unpaid and that includes the cost of health insurance and other paid benefits during the leave. Again state law, should be examined.
6. Dermatitis is considered a "serious health condition" under the federal FMLA. 
TRUE and FALSE. It may or may not be. It depends on whether the specific condition involved meets the definition of a "serious health condition"  which is set forth in the FMLA: 1) any period of incapacity from a condition requiring inpatient care, including recovery from the condition, 2) incapacity for more than three consecutive work and non-work days....., 3) absences to treat chronic or permanent conditions. Of course, a serious skin rash might meet this definition, while it might not if it is just a short term reaction to, say poison ivy that remedies itself in hours.  
7. An employee who falsifies his required certification form for FMLA can not be terminated because this would still be considered retaliation for the exercise of FMLA rights.
FALSE. The employee may be terminated for such a falsification if you can prove by a preponderance of the evidence that this was your motive in making the termination decision. Having a policy and applying it on a consistent basis banning all material falsification in the workplace is helpful in proving such your motive on this point.
8. An employer is prohibited from retroactively marking leave as FMLA.
FALSE. You can, and you should, retroactively designate leave as FMLA where appropriate. A DOL regulation barring this practice was struck in the Supreme Court's Ragsdale decision.
9. It is improper to count time off on workers compensation leave as FMLA leave.
FALSE. It is entirely proper to do so, and it is a "best practice" to do so.
10. It is entirely proper to assess points under a No Fault Attendance Policy for days that an employee is absent, if the employees are put on notice that this will occur.
FALSE. This is a big mistake. The early case under the FMLA and the earlier enacted Wisconsin FMLA exposed this practice and declared it to be interference with protected FMLA rights.
Small projects?  Big projects? Transitional needs while you hire your next your Human Resources person?  Or perhaps you are a smaller company that needs only a part time dedicated person to assist you in HR!  
Contact PSB Consulting to see how we can help.   We work on a project basis or as an extension of your team.
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PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


For more information on the firm, please go to our website at or Lisa at