Taming FMLA

As most employers have found out at one point or another, FMLA rules and regulations are complex and not exactly user-friendly.  The good news is that the Department of Labor is taking information from legislators, employers, and special interest groups as they move toward updating the almost 15-year old law.

The bad news is that as employees become well-versed in FMLA intricasies, abuse of FMLA leave, and particularly intermittent leave, is becoming more prevalent.  Employers who aren’t as familiar with the ins and outs of FMLA rules may be “taking their employees’ word for it,” and accepting and classifying intermittent absences and tardiness as FMLA leave when it’s really not.  In this age of bare-bones workforces, those absences can really affect the bottom line.

So how do you protect your workers’ legitimate FMLA rights AND protect your bottom line?  Ask for information!  While employers might be hesitant to ask questions for fear of breaching privacy, you can (and absolutely should) require medical certifications for all FMLA leaves.  For employees with intermittent leave needs, requesting recertification at regular intervals can help curb leave abuse, keeping in mind, or course, that your policy for requesting recertification must be followed uniformly for all employees and by all managers.

A recent court case [Mauder vs. Metropolitan Transit Auth. of Harris County, Texas, -- F.3d --, 446 f3d 574 (5th Cir. 2006)] shows that while FMLA was created to protect your workers’ rights, the process is intended to be a two-way street:

Kenneth Mauder was a call-center worker who was required to be at his desk  to receive calls most of the day.  He was frequently late for work and took extended breaks, in violation of his supervisor-issued break schedule.  After several disciplinary actions, Mr. Mauder provided a doctor’s note that explained his diabetes medication increased his need to use the restroom. When asked to provide more information about his health condition, he refused, arguing that his doctor’s note was enough and he needed FMLA leave to use the bathroom whenever necessary.  About a week before he was to be terminated for absenteeism and tardiness, he requested FMLA leave. Before he could complete his paperwork, he was terminated. He then sued for violation of his FMLA rights.

The Fifth Circuit noted the FMLA only provides leave for a “serious health condition” that leaves an individual incapacitated for a period of time. This includes missing at least three consecutive days of work or being under the care of a healthcare provider for a series of treatments. In this case, Mr. Mauder missed no work because of his diabetes or for any other reason and did not see a doctor for treatment.  After he refused to provide additional information about his request for leave, his employer was not obligated to continue considering whether he was entitled to leave under the FMLA.  The court specifically noted that FMLA requires cooperation from both the employee and employer.

How can Hippo & Fleming Law Offices help?

• Our firm provides customizable training on a variety of business matters for both business owners and managers.  Contact our office for more information. 

• Our attorneys can review and help you revise your company’s FMLA procedures.

Personnel Files, Part 2

Last week we wrote about what should and should not be included in your employees’ personnel files.  This week we’ll focus on employee access to those files.  What do you do if an employee asks to see their file?

The Pennsylvania Inspection of Employment Records Law provides a good bit of information for employers.  According to the law, you as an employer shall allow an employee or an agent designated by the employee to inspect his or her own personnel files.  You can simply make the file available during regular business hours, and where the files are usually kept. You may require the requesting employee or the agent designated by the employee to inspect such records on their free time.  Although not required, you may require the employee to file a written form to request access to the files or to indicate a designation of agency for the purpose of file access and inspection  solely for the purpose of identifying the requesting individual or the designated agent of the requesting individual to avoid disclosure to ineligible individuals.  You may also ask your employee to indicate in that request which particular parts of the file are being requested, or the purpose of the request (to assist you in gathering the needed documents).

Although you as an employer are required to allow employees to inspect their file, there is no legal requirement that an employee or the designated agent of the employee be permitted to remove all or part of his file or copy the contents of the file. The taking of notes by an employee or the designated agent of the employee is permitted.  As a business owner, you have the right to protect your files from loss, damage or alteration to insure the integrity of the files.If you wish, you may require inspection of the personnel file in the presence of an official whom you designate.  Except for reasonable cause, you may limit inspection to once every calendar year by an employee and once every calendar year by the employee’s designated agent, if any.

While you have rights as an employer, you also have responsibilities regarding your employees accessing their files.  You must allow sufficient inspection time, taking into account the size of the file and amount of information.

Although the Pennsylvania law defines an “employee” as any person currently employed, laid off with reemployment rights or on leave of absence, there are certain circumstances where even former employees have rights under the law. Keep in mind that in many instances, requests for files are a precursor to litigation or other claims.  If for any reason you have a hesitation or question about granting access, we urge that you at least contact your legal counsel prior to arranging a time for records to be reviewed by the employee or former employee.

Take a few minutes to review your Personnel File Policy.  Is the information that’s being retained appropriate?  Is the information consistent among all employees?  Are medical records being retained in compliance with applicable laws?  Take a look at some of your existing personnel files.  When an employee requests to see their file, will you be ready?

Personnel Files

Something to think about:

Do personnel files belong to your employees or to your company?  What do you do if your employee wants to see his file?  What if he wants to copy documents in the file?  For that matter, what exactly makes up the personnel file? 

Pennsylvania and Federal law provide some guidance to answering those questions, but there is still a good bit of leeway for business owners to create their own Personnel File Policy, and a good bit of leeway to quite possibly create some legal headaches for their company.

First, what exactly constitues a personnel file (or personnel record)?  The Pennsylvania Inspection of Employment Records Law defines a personnel record as:

• any application for employment
• wage or salary information
• notices of commendations
• warnings or discipline
• authorization for a deduction or withholding of pay
• fringe benefit information
• leave records
• employment history with the employer, including salary information, job title, dates of changes
• retirement record
• attendance records, and
• performance evaluations

A personnel file should NOT include:

• records of an employee relating to the investigation of a possible criminal offense
•  letters of reference
• documents which are being developed or prepared for use in civil, criminal or grievance procedures
• medical records
• materials which are used by the employer to plan for future operations, or
• information available to the employee under the Fair Credit Reporting

You should keep these other records in a separate and secure file which only you have access to.  (Remember that in the case of medical records there are HIPPA and ADA laws with which to comply.)

As a rule of thumb, a personnel file should include records that have been or could be used in relation to an employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.  Any notes on discrimination or harassment investigation concerning the employee should be kept separate as well.  If there is a finding that company policy has been violated, a note to that effect, as well as corresponding disciplinary action may be placed in the personnel file.

Next week, we’ll focus on allowing employees access to their personnel files. 

Summertime. And it’s not always easy.

As classes end within the next few weeks, many teens will be experiencing their first job.  Unfortunately, an increasing number of those teens will also experience sexual harassment ranging from inappropriate comments to sexual assault. 

Whether due to their age or inexperience in the workplace, teens have been an easy target for harassment.  For the past several years, the EEOC has focused on educating young employees about their rights in the workplace, as well as pursuing EEOC claims on behalf of teen employees.  The result has been an increased number of lawsuits with some very large award amounts.

As an employer, it’s imperative that you provide ALL employees with a safe, harassment-free work environment.  The first step is education. 

• Know the laws regarding sexual harassment. 
• Create a Sexual Harassment policy in easy-to-read and easy-to-understand terms and make sure every employee is aware of the policy.
• Educate, Educate, Educate:  employees need to know the policy as well as procedures for reporting incidents, managers need to know how to handle such reports, and EVERYONE needs to know what is and what is not acceptable workplace behavior.
• Provide ongoing reminders regarding your policy.

Hippo & Fleming Law Offices can help: Our attorneys can guide you through writing an effective sexual harassment policy or review an existing policy. We offer training sessions for you, your managers, and your employees on sexual harassment.  Contact our office for more information on how we can help you can provide a safe, harassment-free work atmosphere for your employees.