Tag Archives: Employment Law

A Reminder on How to Avoid the Naughty List When it Comes to Office Holiday Parties

Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse continuing to make headlines (think Tony Robbins, Bryan Singer, and Les Moonves), it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

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

Monster of a Florida Non-Compete Statute Survives Challenge

Earlier this year, the Florida Legislature enacted a statute that some claim is too similar to a Halloween movie monster. Much like all good movie monsters, this statute, Section 542.336 of the Florida Statutes, was created with the best of intentions. According to the legislative history, the statute was designed to combat the effects of the increasing concentration and consolidation of physician services, which reduced patients’ access to physicians and increased costs. To accomplish these goals, the statute alters existing Florida law on restrictive covenants, colloquially referred to as non-competes, which are usually enforced as long as they were reasonable in geographic scope and duration as well as supported by legitimate business interests.

Section 542.336, though, nullifies certain types of non-competes. It specifically nullifies non-competes that prohibit physicians with a specialty from competing in the same county with their former employers if that healthcare entity employs or contracts every other physician with that specialty in that county. Such non-competes are nullified until three years after another healthcare entity has begun offering the same medical specialty services in the county.

But, like any movie monster released into the wild, the statute has some troubling aspects. As an initial matter, it is wholly unclear whether the statute applies only to agreements entered into after its effective date or whether it also applies to all pre-existing contracts. It is also unclear what types of practices would be considered a medical specialty subject to the statute. Additionally, it is unclear the date that starts the three-year period, after which the non-competes subject to the statute can be enforced.More concerning is how Section 542.336 affects medical practices in the more rural counties in Florida or in which there are few, if any other, physician practitioners.

These troubling aspects have already been felt by at least one practice, 21st Century Oncology, Inc., which employed all of the radiation oncologists practicing in Lee County, Florida. Earlier this year, 21st Century Oncology sued the State of Florida, moving for a preliminary injunction on the statute, arguing that the law was unconstitutional. In 21st Century Oncology, Inc. v. Moody, the court acknowledged the plaintiff’s comparison of the new statute to the monster from the “fetid depths of a jungle swamp” in the film Creature from the Black Lagoon; however, the court was not persuaded that the statute is as unconstitutional as 21st Century claimed. According to the court, Section 542.336 serves a significant, legitimate public purpose, which does not render the employment contracts between practices and physicians wholly valueless. It, therefore, was not found unconstitutional under current federal case law. Hence, the statute survived 21st Century’s constitutional challenge.

Given the that this new statute survived its first challenge, healthcare practices should review their existing non-competes to determine what, if any, impact Section 542.336 will have on them. Additionally, individuals or entities looking to invest in new practices should be mindful of the new statute when considering the acquisition. Such investors may want to consider other means to entice practitioners to stay on, such as deferred compensation plans.

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

BREAKING NEWS: Final Overtime Rule Released

Employers, the long wait is over. You finally have an answer regarding whether the federal overtime regulations are going to be changed. As discussed in our earlier blog posts Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions and Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees, in March 2019, the U.S. Department of Labor abandoned its 2016 attempt to increase the salary threshold for exempt employees when it issued a much-anticipated proposed rule. On September 24, 2019, the DOL formally rescinded the 2016 rule and issued its new final overtime rule.

The new rule, taking effect on January 1, 2020, increases the earnings thresholds necessary to exempt executive, administrative, professional, and highly compensated employees from the Fair Labor Standard Act’s overtime pay requirements from the levels that had been set in 2004.  Specifically, the new final rule:

  • Increases the “standard salary level” from $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • Raises the total annual compensation level for “highly compensated employees” from $100,000 to $107,432 per year; and
  • Revises the special salary levels for workers in U.S. territories and in the motion picture industry.

And, for the first time, the final rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level for executive, administrative, and professional employees (not highly compensated employees).

Employers take note, however, that the new final rule does not change the duties portions of the otherwise affected exemptions. For more information about the new final rule, you can go to the Department of Labor website.

As New Year’s Day will be here before we know it, this is a good time for employers to audit their pay practices to make sure that employees are properly classified, update timekeeping and payroll systems, and train reclassified employees on new processes before the new rule takes effect.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

FMLA: Forgetting Minutiae Lead to (legal) Actions (Part IV)

Resuming our journey through the complex maze that is the Family and Medical Leave Act, we turn now to address – through a series of questions and answers – important aspects of FMLA when employees are dealing with their own serious health conditions (when they cannot perform their essential job functions) or the serious health conditions of their spouses, parents, or children. Previously, we addressed aspects of FMLA leave (i.e., up to 12 weeks of unpaid leave during the year) for employees who are expanding their family through births, adoptions, or foster child placement.

So, employees are entitled to FMLA leave if they have a serious health condition?

Correct.

And, they can take leave when a spouse, parent, or child has a serious health condition?

Again correct. Employees can also take leave to care for their spouse, parent, or child with a serious health condition.

What about grandparents or siblings?

Generally, no. Employees are not entitled to FMLA to care for grandparents or siblings or cousins or really any other family member other than their spouse, parent, or child. However, if a grandparent acted in loco parentis (acts as a parent) to the employee before the employee was of age, then FMLA leave could be taken.

I noticed that you italicized the phrase “serious health condition” above, was there a reason for doing that?

Yes, we were trying to draw your attention to that phrase because it has a special meaning under the FMLA.

What does it mean?

It means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care, or (2) continuing treatment by a health care provider.

What is considered inpatient care?

Inpatient care means that the person receiving treatment has to stay overnight in a hospital, hospice, or residential medical care facility.  It also includes periods of incapacity or subsequent treatment that’s connect to the overnight stay.

And, what do you mean by “continuing treatment by a healthcare provider”?

That phrase refers to any of the following types of ongoing treatment: incapacity and treatment, pregnancy or prenatal care, chronic conditions, permanent or long-term conditions, and conditions requiring multiple treatments.

You did that italicizing thing again with the word incapacity.

Yes, we did.  That’s because the word incapacity also has a special meaning.

What is the special meaning for incapacity?

An incapacity means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition, which lasts longer than three days.

Are there any limits on what’s included in the incapacity period?

Yes. To qualify for FMLA coverage, the incapacity must also involve:

  • Treatment two or more times by a health care provider, under the supervision of a healthcare provider, or due to a referral by a health care provider, within 30 days of the first day of incapacity; or
  • Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

So, does a period of incapacity require a visit with a health care provider?

Yes.

Who qualifies as a healthcare provider?

Health care providers include professionals who you would normally think about, like doctors of medicine or osteopathy (authorized by the State in which the doctor practices), podiatrists, dentists, optometrists, nurse practitioners, physician assistants, or clinical psychologists.

Is that all?

No. Under the FMLA, a healthcare provider can also include chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist), nurse-midwives, clinical social workers, or any healthcare provider that an employer or the employer’s group health plan’s benefits manager accepts to certifying for purposes of a benefit claim that the individual has a serious health condition.

Going back to the period of incapacity lasting more than three days, are there any additional requirements involved with that period?

There are. The first (and sometimes only) in-person treatment visit with a healthcare provider must happen within seven days of the first day of incapacity.

Can you have partial day incapacities that count towards that original three-day requirement?

No, partial days of incapacity cannot be combined to satisfy the requirement that the incapacity extend more than 3 days or 72 hours.

Can an employee receive FMLA leave if they schedule all of their routine physical exams over three days and miss three full days of work?

No. The treatment at issue does not include routine physical examinations, eye examinations, or dental examinations. The treatment protected by the FMLA is generally limited to examinations to determine if a serious health condition exists and evaluations of that condition.

You mentioned earlier that the requirement for continuing treatment by a healthcare provider includes treatment for pregnancy or prenatal care, right?

Yes, it does. However, a pregnant employee can still be entitled to FMLA leave if the employee does not receive medical treatment for the absence. For example, a pregnant employee unable to report to work because of severe morning sickness would be entitled to FMLA for that absence.

You mentioned that chronic conditions can be a qualify reason, what are those?

A chronic serious health condition is one which:

  • Requires periodic visits for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
  • Continues over an extended period of time (including recurring episodes of a single underlying condition); and
  • May cause episodic rather than a continuing period of incapacity.

How periodic must a visit be?

It must be at least twice a year.

Are there examples of conditions that may cause episodic rather than continuing periods of incapacity?

Yes, those types of conditions may include asthma, epilepsy, diabetes, and similar types of conditions.

So, diabetes can be considered a chronic condition for which employees may use FMLA leave?

Yes, if it requires in-patient care or if it requires an employee go to the doctor at least twice a year.

Now, what about permanent or long-term conditions, must there be active treatment for all covered absences?

No. Although the individual suffering from a permanent or long-term condition must be under the continuing supervision of a health care provider, that individual is not required to receive active treatment during each covered absence.

Are there any examples of these types of conditions?

Examples of permanent or long-term conditions that fall in this category include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

What types of conditions requiring multiple treatments would qualify for FMLA leave?

Either, restorative surgery after an accident or other injury; or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The next post in the FMLA series will address the qualifying reasons arising from issues specific to military members and their families.

Special thanks to Associate John Getty for his assistance with this blog post.

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

Restrictions on Vaping and Texting Go Into Effect: Today is Gonna be the Day That the Florida Legislature Is Gonna Throw It Back to Employers*

By now you should’ve somehow realized that today (July 1, 2019) the amendment to the Florida Clean Indoor Air Act, which implements the 2018 constitutional amendment prohibiting vaping in the workplace, goes into effect.

Hopefully, businesses and employers realize what they have gotta do now that the use of e-cigarettes in indoor workplaces is prohibited. The word is on the street that indoor workplaces will become an oasis for non-smokers – who likely never really had a doubt that that the fire in the hearts of vaping employees would eventually go out.

Employers can no longer choose to allow employees to vape indoors. Those using e-cigarettes will now be relegated to designated smoking areas–-presuming employers provide smoking areas. Although we don’t believe any vaping employees will feel that great about this decision now, it is the law, and maybe it’s gonna be something that saves them.

Beyond that, all roads that employees have to drive are winding, and now all the lights from their cellphones won’t be blinding. Because, as of today, texting while driving has become a primary offense rather than being a secondary offense. There are many things that we’d like to say about this, but primarily, this means employee drivers can be pulled over for texting while driving without violating any other traffic law. Maybe, this will be a law that saves people.

Regardless, employers will need to throw it back to employees who are driving while working, and make sure that they somehow realize what they’re not to do. We don’t believe that any managers should refrain from training their subordinates and requiring employees to avoid texting-and-driving. That way, the managers can also be the ones who save their employee drivers and protect their employers’ businesses. Read more about the new texting law.

Both of these laws—after all—could have positive consequences on the health and well-being of workers and be the laws that save them.

* see ”Wonderwall” Oasis 1995

Special thanks to Associate John Getty for his assistance with this blog post.

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

FMLA: Forgetting Minutiae Leads to (legal) Actions (Part III)

After providing a general overview of the convoluted maze that is the FMLA, explaining  which employers are subject to the FMLA, and describing which employees are eligible for leave, we now continue our journey by addressing when an employee can take FMLA.

Eligible employees of covered employers may take up to 12 workweeks of leave during any
12-month period for one, or more, of the following reasons:

1. The birth of the employee’s son or daughter, or to care for the newborn child.
2. For placement with the employee of a son or daughter for adoption or foster care.
3. To care for the employee’s spouse, son, daughter, or parent with a serious health
condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse,      son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status).

These reasons—along with a few others involving military service members that we will address in a future blog post—are known as “qualifying reasons” under the FMLA. Some of these qualifying reasons are straightforward while others involve important nuances. For today’s post, we’re going to address the issues that come up with points 1 and 2 above (the birth, adoption, or fostering of children) through another series of questions and answers.

I have an employee who qualifies for FMLA leave, and the employee is about to have a new child. What rights does that employee have?

As noted above, an employee who qualifies for FMLA can take up to 12 workweeks of leave during a 12-month period for the birth or care of a newborn child.

Does an employee have to take all the qualifying leave at one time?

It depends. An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy child or placement of a healthy child for adoption or foster care, but only if the employer agrees.  If the employer does not agree, then the time off will be all at one time.

Does an employee need to take all of their FMLA leave for the birth of the child right after the child is born?

Not necessarily, an employee can take leave for the birth of a child any time up to 12 months after the child’s birth.

 Are both parents entitled to leave for the birth of their child?

Generally, both parents are entitled to leave for the birth of the employee’s child. However, if both spouses work for the same employer, the total combined leave taken by both spouses for the birth of the child or to care for the child after birth may be limited to a combined total of 12 weeks of leave during any 12-month period. In other words, both spouses have 12 weeks combined for the newborn child. Thus, the mother and father could both take 6 weeks each. Or the mother could take 9 weeks, and the father 3 weeks. Alternatively, if the mother takes 12 weeks, then her spouse would not be entitled to any FMLA leave.

Where both spouses use a portion of the total 12-week FMLA leave entitlement for the birth of a child, each spouse would be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes.

The foregoing is also true for the placement with the employee of a child for adoption or foster care. For purposes of the FMLA, a spouse includes a married husband or wife (husband or wife refers to the other person with whom an individual entered into marriage), which includes same-sex spouses.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The next FMLA post in this series will address the qualifying reasons involving an employee’s own serious health condition or the serious health condition of family members.

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

Planning for Hurricane Season: Employee Pay During and After a Storm

With the onset of the 2019 hurricane season and the effects of Hurricanes Michael and Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Healthcare employers also have ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s article, “Senior Living Providers: Are You Ready for Andrea, Barry, and Chantal?

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

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same! (Part II)

As we mentioned in Part I of this post, this year the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and other strategies to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA).

How do employers know if Homeland Security Investigations (HSI) has initiated an audit or administrative inspection of their businesses? The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer compelling production of Forms I-9 and frequently other supporting documentation such as payroll reports, a list of current employees, articles of incorporation, and business licenses. Employers have at least three business days to produce the Forms I-9, after which HSI will conduct an inspection for compliance following ICE’s inspection process, give the employer 10 days to correct technical or procedural violations, and assess applicable fines and penalties.

Form I-9 best practice tips for employers include:

  • Establish a uniform written Form I-9 compliance policy and train staff accordingly.
  • Avoid discrimination claims by educating staff on the appropriate way to verify documents and treat all job applicants the same regardless of their citizenship or immigration status or their national origin.
  • Put in place a “tickler” system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
  • Establish a best practice method for proper cataloging and retention of Forms I­-9—separate former and active employees’ Forms I-9.
  • Keep Forms I-9 organized and separate from general personnel files. Establish a consistent policy regarding obtaining and retaining copies of verified documents.
  • Purge old Forms I-9s that are past the retention period on an annual basis (three years from date of hire or one year after termination, whichever is longer).
  • Conduct routine formalized self-audits and document each internal audit, preferably with guidance from legal counsel.
  • Call legal counsel immediately if you are served with a Notice of Inspection as the time to respond is short and it is critical to submit well-organized documents only after receiving legal advice.
  • Do not consent to an immediate inspection if agents arrive without warning – employers have three days to submit documents.
  • Only submit what is requested – nothing extra.
  • Do not let agents take original records without retaining copies.
  • Do not allow agents to talk with any employees or company officers before contacting legal counsel.
  • If the U.S. Department of Labor (DOL) agents arrive for an inspection of Forms I-9 without notice, decline the inspection. They will notify ICE.  (Note – if DOL agents seek to inspect wage and hour or FMLA records, decline the inspection and contact your legal counsel to schedule it at a convenient time.)
  • If U.S. Department of Justice Immigrant and Employee Rights Section (IER) agents arrive for an inspection of Forms I-9 without notice or deliver notice of intent to conduct a worksite enforcement audit, call legal counsel immediately to help coordinate a response. See also IER’s Employer Best Practices During Worksite Enforcement Audits.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same!

In 2019, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and civil fines to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA), along with criminal prosecution of employers who knowingly violate IRCA.

Last year ICE I-9 audits increased by 340 percent, resulting in 779 criminal arrests of employers; 1,525 administrative arrests of unauthorized employees; and more than $10.2 million in judicial fines, forfeitures, and restitutions. While most employers do not intentionally falsify Forms I-9 or knowingly accept fraudulent documents from employees, employers’ honest mistakes related to Forms I­9 can be costly. Civil fines, per form with one or more mistakes, range from $216 to $2,156. Thus, the same mistake made on each form could increase the fine exponentially. Moreover, do not forget that the U.S. Department of Justice Immigrant and Employee Rights Section (IER) also conducts Form I-9 audits to ensure that businesses are not engaging in citizenship discrimination.

Employers should protect their businesses by ensuring Form I-9 compliance programs are in place, up-to-date, and followed. For instance, employers should confirm they are using the current form, which has an August 31, 2019 expiration date, and properly following the instructions. Take care to avoid common Form I-9 mistakes, such as an employee’s failure to sign or date the form or the employer’s failure to complete Section 2 by the third business day after the date the employee begins employment. For guidance from ICE regarding Form I-9, visit “I-9 Central” or review ICE’s list of Common Mistakes and How to Avoid Them.

Also, employers should conduct routine Form I-9 internal audits and properly remedy identified errors in order to be legally compliant and to help avoid liability should ICE or IER select your company for an inspection. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

In the next couple of weeks, part II of this post will address the ICE inspection process.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

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