By now it is almost cliché to talk about the "Bermuda Triangle" of employment law - difficult issues involving the ADA, FMLA and Worker's Compensation and the consternation they cause employers. Recently, however, Wessels Sherman attorney Alan Seneczko, who manages the firm's Wisconsin office, won a big victory for a client seemingly caught in that quagmire.
On August 28, 2018, the Department of Labor, Wage and Hour Division, issued six new opinion letters on issues under the Fair Labor Standards Act and Family Medical Leave Act. They are summarized below:
Administering employee leaves of absence is complicated. For employers of 50 or more employees there obviously are the Family and Medical Leave Act (FMLA) and D.O.L. regulations to deal with. Then there is the EEOC, which has interpreted the Americans with Disabilities Act (ADA) to require leaves of absence, or extending them under certain circumstances as a reasonable accommodation of an individual's disability. Add worker compensation laws that provide for reinstatement of employees following a work-related illness or injury, as well as an ever growing list of other federal, state and, more recently, local laws governing what employers may or may not do about employee absences and even the most experienced HR professionals have their hands full. Monitoring FMLA leave (especially intermittent leave), work-related absences, military leave, leave as an accommodation and all the legalities of when and how to return workers from such leaves, can be overwhelming. Not surprisingly, many employers have turned to outsourcing these functions, ostensibly to avoid all the hassles and legal pitfalls they present. However, as a recent U.S. Court of Appeals decision demonstrates all too clearly, turning these responsibilities over to a third party does not rid an employer of responsibility, or liability, for complying with the many workplace leave laws that are at play.
Did you Count Temp and Part-Time Employees?
If you are a Company covered under the Family and Medical Leave Act (FMLA), eligible employees are entitled to leave (either consecutive or intermittent) of up to 12 work weeks of leave in a 12 month period under certain circumstances. PLUS the Company must continue to pay the employer's share of the employee's individual group health insurance premiums during the leave. These entitlements can be very disruptive and costly to an employer. So, is your Company covered?? Does your Company have to have and follow an FMLA policy?
In October, 2014, the United States Department of Labor issued its fiscal year statistics, covering numerous Fiscal Years, in various areas of its responsibility and enforcement (Fair Labor Standards Act; Child Labor; Family Medical and Leave Act Enforcement). It is very interesting to note that these statistics clearly confirm a major increase in wage and hour activities as conducted by the Department of Labor with increases in both the amount of recovered back wages and the time spent by agents on enforcement. These increased enforcement efforts have reached "record high levels" in 2013-2014 with more than 8,000 Federal Labor Standards Act cases being filed between April 1, 2013 and March 31, 2014, which is a five (5%) percent jump from the previous year. As well, since Fiscal 2000, there has been a 438% increase in federal wage and hour lawsuits. These enforcement and trend statistics are a clear indication to employers that they must use great care and their best practices to ensure compliance with wage and hour laws.
As most employers know, the Department of Labor Family Medical Leave Act (FMLA) forms which were initially issued in the early 1990s expired as of December 31, 2011. The Department of Labor (DOL) has been working with the Office of Management and Budget to extend the life of these forms and received approval that their model forms will be extended through February 28, 2015. Unfortunately, the DOL has made very few changes to those forms to incorporate any required modifications with regard to the expansion of Military Family Leave and the provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA).