Friday, March 25, 2011

FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple - Common Problems and Issues for HR Professionals




Retaliation for Taking Family Leave is Illegal


John Hollon of TLNT.com recently published an Article setting forth the Top Ten areas of concern for HR Professionals.  Here is the list:

"1.  FMLA (the Family and Medical Leave Act) is the single most asked-about topic. Questions 
center on: who is covered; what is deemed a serious health condition: and how to control intermittent leave.

Confusing

HERE ARE SOME OTHER LINKS YOU MAY FIND WORTHWHILE:

What Are My Employer's Obligations When I Request FMLA Leave?  Pennsylvania FMLA Attorneys

What is a "Serious Health Condition" Under the Family and Medical Leave Act (FMLA)?  Is the Flu Covered by FMLA?

FMLA, Short-Term Disability, Workers Compensation and Unemployment Compensation - How Do They All Fit Together?

Am I Eligible for Unemployment Benefits if I am Out on Family Leave?

New Jersey State Temporary Disability Insurance  - Contingent Fee Lawyers

Can I Get Unemployment in Pennsylvania if I am Out on Disability Leave? What are the Differences Between Short-Term Disability and Long-Term Disability?

Are Judgments or Settlements Under Family and Medical Leave Act Subject to W-2 Taxes and Withholding or Should They be Paid Under a 1099?

Short-Term Disability, Family Leave, ADA and Workers' Compensation - How They All Fit Together

Mandatory Sick Leave in Philadelphia - You Cannot be Punished for Taking Time Off Due to Illness or Injury of You or a Family Member

2.  Advice and counsel for taking such adverse actions as termination, suspension and discipline is a close second to FMLA. Commonly requested information includes: what documentation is needed to fire someone; does a recent Workers Compensation claim or FMLA request affect the decision being made; can the employee sue for termination?

HERE ARE SOME OTHER ARTICLES YOU MAY FIND WORTHWHILE:

What is an ILLEGAL Hostile Work Environment? Workplace Bullying Alone is Not Illegal in Pennsylvania

#MeToo - The Rules and Deadlines for Sexual Harassment Claims in Pennsylvania - A List of Most Famous Sexual Predators

Why is it Important to File an EEOC Charge? How to File Discrimination Claims in Pennsylvania? Time Limits to File Discrimination, Hostile Work Environment and Retaliation Charges in Pennsylvania

Employee Complaints and Retaliation - What is Legal and What is Illegal

What Are the Differences Between the Anti-Discrimination in Employment Laws Title VII and the Pennsylvania Human Relations Act?

How Do Federal, State and Local Anti-Discrimination Laws Work Together to Protect Pennsylvania Workers?

Does My Pennsylvania City, County, Township or Borough Have Any Discrimination Laws Protecting Employees?

FILING A CHARGE OF DISCRIMINATION IN PENNSYLVANIA - A FEW TIPS FROM CONTINGENT FEE LAWYERS

The Philadelphia Fair Practices Ordinance Makes it Illegal to Engage in Workplace Discrimination Because of Sexual Identity, Sexual Preference, Status as Domestic Abuse Victim, Marital or Familial Status, Ethnicity or Ancestry

Employed "At Will":  What Does That Mean? Pennsylvania Contingent Fee Lawyers Explain the Most Important Employment Law Principle

United States Employment and Discrimination Laws - An Overview by Pennsylvania Employment Lawyer

Do I Have a Case for Constructive Discharge? Nearly 50% of People Who Are Unemployed Quit Their Job - Pennsylvania Contingent Fee Employment Lawyers

Are Settlements in Discrimination Cases Subject to Taxes? Pennsylvania Contingent Fee Discrimination Lawyers

Is Your Boss a Bad Person - or Just a Bad Boss? Is Bullying at Work Illegal? Pennsylvania Contingent Fee Employment Lawyers Explain

UPDATE on Recent and Pending Discrimination Matters Pertaining to LGBT-Rights from SCOTUS and EEOC

Pennsylvania Human Relations Commission (PHRC) Mediation Program Designed to Resolve and Settle Employee Discrimination Complaints

Macy v. Holder - EEOC Finds LGBT Discrimination Violates Title VII -  Landmark EEOC Decision on Discrimination Based Upon Gender Identity, Change of Sex, and/or Transgender Status

Ranking the Most Common EEOC Discrimination Claims in 2011

The 38 United States That Ban Same Sex Marriage - Gay Marriage Illegal In These States - 9 States Allow Gay Marriage

Horrible Bosses: Telling Employee to Forget About Her Daughter "Because She's Dead" Not Evidence of a Hostile Work Environment

3.  Performance management strategies. Strategies for dealing with a problem employee such as: is it safe to ramp up the heat on a new hire that may not be working out or on a protected-class employee that isn’t responding to counseling? Also, group performance issues concurrent with culture changes or business cycle needs.


To Punch or Not To Punch?

4.  Fair Labor Standards Act (FLSA) issues. Concerns center on correctly classifying a position as exempt, calculating overtime for multiple rates, what travel hours must be paid for an hourly employee, what are federal and state child labor rules. In addition, how much time can we ignore at clock-in or out? Can we round?  

HERE ARE SOME OTHER ARTICLES YOU MAY FIND WORTHWHILE:

Misclassification of Employees as Independent Contractors - What's That Mean? Pennsylvania Contingent Fee Lawyers Explain

Can 1099 Workers Get Overtime? What Can I Do if I Have Been Misidentified as an Independent Contractor (Paid on a 1099) When I Should be Deemed to be an Employee (w-2 Worker?)  Pennsylvania Employment Lawyers Explain

Am I Really a Self-Employed Independent Contractor?  How Do I Know if I am Self-Employed or Properly Identified as a 1099 Employee??

Comparing Pennsylvania's State Overtime Law, the Minimum Wage Act, with its Federal Counterpart, the Fair Labor Standards Act - Pennsylvania Wage and Hour Lawyers

Do I Have to Be Employed to Get the Bonus or Commission I Earned in Pennsylvania?

Are You Owed Money by Your Former Employer?  Pennsylvania's Wage Payment and Collection Law is a Powerful Statute

Two Important Differences in Pennsylvania Law for Overtime Claims - Sales Persons and IT Professionals

 Overtime Rules, Regulations and Laws in Pennsylvania

If You are a Computer Professional, You Are Entitled to Overtime in Pennsylvania

Overtime for Sales Persons in Pennsylvania - Exempt or Non-Exempt? Outside Sales Persons Entitled to Overtime in Pennsylvania


5.  Immigration. Many questions arise regarding I-9 documentation and procedural questions. Such as, what do we do when the SSN comes back a no-match? An applicant has a matching SSN and ID, but we know it is not his. What can we do? And, we’re considering employing an H1-B employee. How complicated is that?
Do We Get Paid for This?

6.  Lunch hour and breaks. Questions about giving breaks and how many per day. Is a lunch period required? What has to be paid versus non-paid time? Can an employee work through break and leave early?

7.  Employee access to personnel files. Does the law require us to allow an employee to see or copy his file? What are the pros & cons of allowing it versus not? We just got a letter from an attorney requesting files. Do we have to send them? We have employees in a few other states. Are the rules different there?

Misclassification Common,
Whether Intentional or Not

8.   Independent contractor versus employee. What’s the difference between an independent contractor and an employee? Why can’t I just pay this person as a contractor and issue a 1099? What constitutes a legal independent contractor status? Who makes the rules?  

HERE ARE SOME OTHER ARTICLES YOU MAY FIND WORTHWHILE:

Misclassification of Employees as Independent Contractors - What's That Mean? Pennsylvania Contingent Fee Lawyers Explain

Can 1099 Workers Get Overtime? What Can I Do if I Have Been Misidentified as an Independent Contractor (Paid on a 1099) When I Should be Deemed to be an Employee (w-2 Worker?)  Pennsylvania Employment Lawyers Explain

Am I Really a Self-Employed Independent Contractor?  How Do I Know if I am Self-Employed or Properly Identified as a 1099 Employee??

Misclassification of Employees as Independent Contractors and 1099 Workers in Pennsylvania

9.  Employee privacy. Can we read employee e-mail or monitor Internet usage? What about the use of surveillance cameras? Is it legal? Can we search employees, or their workplace, belongings or cars?

10.  Drug and alcohol issues. Under what conditions can employees be tested? If the employee tests positive, can we discharge? How can a drug test procedure be set-up, what should be in the policy?"


STD Available When You Are Out on FMLA

What are the Rules for Family and Medical leave Act ("FMLA")

In general - Not at all surprised that Family and Medical Leave Act issues are number 1.

In general, one is entitled to FMLA if they have worked an average of 25 hours per week or more for at least one year, provided that the company has more than 50 employees. FMLA leave is unpaid, but one cannot be punished for taking FMLA leave. However, you may while you are out on FMLA Leave take sick pay, PTO or vacation pay.  You may also apply for any obtain Short-Term Disability benefits while out on FMLA leave.

FMLA leave is available if you or your spouse has a baby, or you or a loved one that has a serious condition. A serious condition is either 1) a prolonged or permanent condition suffered by you or a close family member that flares up once in a while and causes you to miss a few hours, or more, of work on an intermittent basis (either to care for yourself or the close family member with the condition); 2) a one-time illness or condition (i.e. broken leg, back surgery, etc.) suffered by you or a loved one that causes you to miss work for 3 days or more (either to care for yourself or a loved one), provided you (or your loved one) seek medical treatment for said illness/condition. If you are the one experiencing the injury or illness, the condition must be serious enough that you cannot complete your regular job duties.

Do I Qualify for FMLA Leave?

NOTE: A serious health condition may arise from a malady that constitutes a disability under the American’s With Disabilities Act, such as diabetes, retardation, heart problems, cancer, etc., but it does not have to be of such serious import. If your child has chicken pox, and you take he/she to the doctor, and she/he misses 3 days of school, you are protected under FMLA. 

Tricky part - you or a loved one have a longstanding condition (irritable bowel syndrome, cancer, any one of a myriad of childhood behavioral disorders, epilepsy, diverticulitis, diabetes, debilitating migraines, etc.) that from time to time leave you or your loved one incapacitated, during which time you must care for yourself or your loved one. For privacy reasons, you never tell the company about this situation. Occasionally, you miss work when the effects of these conditions dictate. The company then writes you up for being absent too much. You are eventually fired for poor attendance.

Do you have a claim for violation of FMLA? No, because the company was unaware that your need for intermittent FMLA leave, because you never told them about the medical condition.  You do not need to waive all of your privacy rights in order to obtain FMLA leave by, for example, providing a copy of all of your (or your family member's) medical records to the company.  Rather, you need only have your physician complete an FMLA Certification form generally identifying the condition and certifying that it makes you unable to complete your job duties either because of your own physical limitations, or because you are needed to care for a loved one.

Solution - if you or a loved one has such a condition, explain it to the company, and make sure it knows that you may need intermittent FMLA leave when it kicks up. As far as HR concerns about “controlling” intermittent leave, very little in the way of such control is permitted. Employees simply may not be penalized if they need to leave or miss work due to a health condition beyond their control.  

For some additional insight on FMLA issues, check out this Article from Manpower.com.


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