Monthly Archives: March 2019

FMLA: Forgetting Minutiae Leads to (legal) Actions – Part II

As we continue through the convoluted maze of arcane rules known as the FMLA, we turn our focus to what makes an employee eligible for FMLA leave.

Generally, an employee of a covered employer is eligible to take FMLA leave, if the employee satisfies three requirements. They are:

(1)  the employee has been employed by the employer for at least 12 months;

(2)  the employee has been employed by the employer at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and

(3)  the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite.

These requirements do not apply to flight attendants and flight crew members. Persons in such positions are subject to special eligibility requirements that are not covered in this series.

Although these three requirements may seem pretty straightforward, they are not as clear cut as they appear. Accordingly, below you will find a few questions and answers designed to assist in understanding the concept of the “covered employee.”

Does the 12 months of service have to be consecutive?

No. The 12 months of service need not be consecutive. Generally, any combination of 52 weeks equals 12 months. Even so, a seven year break in service with the employer generally cuts off any prior service except in certain limited circumstances. Such circumstances include, but are not limited to, military service covered by The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) or written agreement, including a collective bargaining agreement.

When should it be determined if the employee meets the months of service requirement?

The determination of whether an employee has been employed by the employer for a total of 12 months must be made as of the date the FMLA leave is to start.

How are the hours of service calculated?

The FLMA’s definition of “hours of service” applies for the calculation of 1,250 hours. Accordingly, hours of service does not include those hours for which an employee is paid but does not work, such as holidays, paid vacation, and sick leave. Hours worked does include time worked as a part-time, temporary, or seasonal employee.

An employee returning from USERRA-covered military service is credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining the employee’s eligibility for FMLA-qualifying leave.

If an issue arises with respect to employee coverage, the Department of Labor takes the position that the employer has the burden of showing that the employee has not met the hours of service requirement.

When should it be determined if the employee meets the hours of service requirement?

The determination of whether an employee meets the hours of service requirement must be made as of the date the requested FMLA leave is to start.

How does an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?

First, it has to be determined where the employee’s worksite is. An employee’s worksite is the site where an employee reports. If the employee does not travel to a specific location to work, then the worksite is the location from where the employee receives assignments.

For employees with no fixed worksite (e.g., construction workers, transportation workers, salespersons), the worksite is the site that is assigned as their home base, from which their work is assigned, or to which they report. With very few exemptions, an employee’s personal residence is not considered a worksite.

The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee needing leave is employed.

While public-sector employers are covered regardless of the number of employees employed, to be an eligible employee entitled to take FMLA leave, the public-sector employee must still be employed at a worksite in which the employer employs at least 50 employees within a 75-mile radius.

When should an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?

The determination of whether 50 employees are employed within 75 miles of the worksite is made when the employee gives notice of the need for leave.

What happens when an employee does not meet all three requirements until after the employee’s need for leave has begun?

An employee’s full FMLA rights are triggered as of FMLA eligibility. An employer cannot designate leave happening before the eligibility date as FMLA leave; and therefore, the employee becomes entitled to the full 12 weeks of FMLA leave in addition to any previously taken leave.

The first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth. The next FMLA posts in this series will address the FMLA’s original qualifying reasons for leave and then the qualifying reasons added in 2008.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

FMLA: Forgetting Minutiae Leads to (legal) Actions

This post was co-authored by Jennifer Fowler-Hermes and John Getty.

The Family and Medical Leave Act (or the FMLA) is often viewed as a convoluted maze of arcane rules. Generally, the FMLA requires covered employers provide qualifying employees up to 12 weeks of unpaid leave for certain qualifying events. This simple explanation belies how technical the FMLA can be. Because it is very technical, the FMLA is one of the laws that employers most frequently ask questions about. Taking one wrong turn can easily lead to employer liability. This post is the first in a series to help employers stay on the right path.

In this series, we will review not only the basics of the FMLA, but also several areas where employers often go astray. Our journey through the FMLA starts with a handy map summarizing the steps an employer should follow when dealing with the FMLA labyrinth.

Step 1:  An employer determines whether or not it is a covered employer.

Step 2:  If it is covered, an employer should then prepare and share an FMLA leave policy with its employees and must post certain notices to its employees.

Step 3: If an employee requests FMLA leave, or the employer learns that an employee’s absence may be for a qualifying reason, then a covered employer must determine whether the employee is eligible for FMLA leave. If the employee is not eligible, the employer must notify the employee of the decision and utilize the appropriate designation form. If the employee is eligible, the employer must proceed to the next step.

Step 4: Provide the employee eligibility and rights and responsibilities notices to the employee.

Step 5:  The employer must then determine if the leave request is for an FMLA-qualifying reason.

Step 6: The employer should determine whether the employee qualifies as a “key employee” for whom specialized rules apply. Key employees will be addressed in a separate post in this series.

Step 7: The employer may require the employee go through a certification process, which is optional.

  • If the certification process is utilized, then the employer should notify the employee about the certification and provide time for certification.

Step 8: The employer must either grant or deny the leave request and provide a designation notice to the employee.

Step 9: After leave is granted, then the employer must:

  • Restore the employee to the same or an equivalent position at the end of the leave (unless the employee is a “key” employee); and
  • Maintain benefits during the leave (with exemptions – which will be discussed later in the series).

Step 10: Maintain records for the entire decision-making process.

Because it’s part of the first step in navigating the FMLA maze, and it represents a core concept of the FMLA, below you will find a serious of questions and answers designed to assist in understanding the concept of the “covered employer.”

What is a covered employer? 

It’s an  employer that has legal obligations under the FMLA.

Who are covered employers?

There are a couple types of covered employers subject to the provisions of the FMLA. One of the main covered employers are private employers with 50 or more employees during 20 or more workweeks in the current or previous calendar year.

Public agencies, regardless of the number of employees the public agency employs (public agencies include state, local and federal employers, and local educational agencies), are also covered employers. In addition, public and private elementary and secondary schools are covered employers, regardless of the number of persons employed.

Finally, covered employers also include any person who acts in the interest of the employer toward any of the employees of such employer, and any successor in interest of the employer.

How does a private-employer count employees to determine coverage?

With few exemptions, any employee whose name appears on the employer’s payroll will be considered employed each working day of the calendar week and must be counted regardless of whether compensation is received for the week. However, employees added to the payroll after the beginning of a calendar week or terminated before the end of a calendar week are not counted.

There are special issues that arise when an employer does not by itself have the requisite number of employees but is considered a joint employer with a second company. For example, when two or more businesses exert control over the workplace or working conditions, it is possible that the employees of both businesses are counted together.

What about employees on paid or unpaid leave?

They are counted so long as the employer reasonably expects the employee to return later to active employment.

Does the same rule apply for employees on disciplinary suspensions?

Yes, again, so long as the employer reasonably expects the employee to return later to active employment, the employee is counted.

What about employees who are laid off?

Employees on temporary or permanent layoff are not counted.

The questions and answers above summarize the main issues with that crop up at Step 1.

*The next FMLA post in this series will skip ahead to Step 3 and address what makes someone an employee eligible for FMLA leave, since it is one of the other important concepts to understand while navigating the FMLA.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

John Getty
jgetty@williamsparker.com
(941) 329-6622

Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions

Please note: This post has been updated to reflect a corrected annual minimum salary threshold of $35,308 which represents a nearly $12,000 per year increase from the current salary requirement of $23,660.

The U.S. Department of Labor issued a much-anticipated proposed rule addressing the “white-collar” exemptions for the Fair Labor Standards Act. If the proposed rule is enacted later this year, the new minimum salary threshold will be $35,308 per year (or $679 per week). This represents nearly a $12,000 per year increase from the current salary requirement of $23,660 (or $455 per week). Thus, once this new rule goes into effect, for an employee to be exempt from the FLSA’s minimum wage and overtime rules, the employee’s salary will need to meet the new threshold.

Importantly though, the DOL will not be altering any other aspects of the “white-collar” exemption tests. It won’t be changing the various tests for executives, administrative staff, or professionals. Nor does the DOL’s new rule include periodic automatic increases to the minimum salary threshold as the Obama-era DOL had proposed before a district court stopped it in 2016.

Depending on how quickly the DOL moves through the rule-making process and issues the new rule, the new minimum salary threshold will likely go into place late summer or early fall of this year. For that reason, as they did in 2016 in response to the prior proposed increases, employers will want to begin evaluating their staff to determine who may be affected and determine how they want to proceed.  Additionally, because of this rule change, employers will also want to audit all of their employees to make sure each one is properly classified, and if not, take this opportunity to reclassify employees in a manner that tries to minimize liability for any past misclassifications.

John Getty
jgetty@williamsparker.com
(941) 329-6622