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www.mmmlaw.com The Top 10 Steps to Avoid Employment Lawsuits HomeTown Health Employment Law Update March 18, 2009
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The Top 10 Steps to Avoid Employment Lawsuits
HomeTown Health Employment Law Update
March 18, 2009
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Avoiding Employment Lawsuits
• Goals:
• Do not give employee ammunition to seek legal representation
• Do not make potential case attractive to a plaintiff’s lawyer – no monetary incentive to take the case
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Avoiding Employment Lawsuits
• Don’t hire the problem employee
• Take your time to find the right person
• Rigorous reference checks
• MySpace
• Litigation search
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Avoiding Employment Lawsuits
• Address issues early/open door policy/grievance mechanism
• Don’t let issues/claims build
• Address the issue and move on
• Pay/overtime/promotion
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Avoiding Employment Lawsuits
• Regular/honest performance evaluation• Do them timely
• Train supervisors on how to conduct evaluations
• Give honest, realistic evaluation – even if negative
• Be specific• Areas of improvement
• Time to improve – be realistic
• Expectations for improvement
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Avoiding Employment Lawsuits
• Be consistent
• Treat everyone the same
• If there is no favoritism, then employee may accept the termination
• Mechanical application of the rules
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Avoiding Employment Lawsuits
• Document, document, document
• Do it throughout the process, not just at the end
• No “anticipatory” documentation• Follow your policies
• Beware of email traps
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Avoiding Employment Lawsuits
• Avoid/manage termination decision• Avoid if possible
• Training, coaching, mentoring
• Transfer to more suitable position
• Initiate discipline process
• Other alternatives
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Avoiding Employment Lawsuits
• Avoid/manage termination decision• If required to terminate, manage the process
• Should not be a surprise• Discipline• Performance evaluation• Written records the employee has seen in the past
• No Donald Trump firings• Not seat of the pants• Not in front of co-workers
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Avoiding Employment Lawsuits
• Tell the employee why you are terminating employment• Avoids speculation• If followed previous rules, employee knows
already anyway• Be specific• Be honest
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Avoiding Employment Lawsuits
• Be considerate
• No reason to attack, disparage, embarrass, insult, or humiliate
• Don’t hedge to avoid looking like the bad guy
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Avoiding Employment Lawsuits
• Consider separation pay/release
• Must be enough to induce employee to sign
• Consider other intangibles• Outplacement
• Laptop
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Avoiding Employment Lawsuits
• Beware of reference checks/no email announcing departure• Causes lots of lawsuits because adds insult to
injury
• Do not promise reference letter
• Direct requests to HR• Job title
• Date of employment
• Pay information
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Top Ten HR Dos and Don’ts
HomeTown Health Employment Law Update
March 18, 2009
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Top 10 HR Dos and Don’ts
• Do follow disciplinary procedures
• Find out what the procedure is; follow it
• If you don’t follow it, have a real good reason
• Consult HR
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Top 10 HR Dos and Don’ts
• Don’t get caught in the he said/she said• Always have two people present during
discipline/termination
• Do keep specific documentation• Who, what, where, when, how
• Do ask employee to acknowledge receipt of discipline
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Top 10 HR Dos and Don’ts
• Do investigate before disciplining
• Take time to investigate before you leap
• Employee may have a good reason for violating the rule
• Enforcement of a particular rule may create more problems than it is worth
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Top 10 HR Dos and Don’ts
• Don’t retaliate• Exercise caution when dealing with employees
who have complained about health, safety, and/or discriminatory issues
• Before disciplining or terminating, make sure problem is carefully documented and consult counsel
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Top 10 HR Dos and Don’ts
• Do investigate harassment claims (sexual and otherwise)
• Investigate immediately
• Even if not asked to investigate, investigate
• Follow policy for reporting
• Don’t joke about it
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Top 10 HR Dos and Don’ts
• Don’t get physical• No touching in the workplace• Individual could be sued as well as Company• If an employee becomes violent, do whatever
is necessary within reason to subdue the person
• Don’t forbid an employee from leaving (false imprisonment)
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Top 10 HR Dos and Don’ts
• Do focus on performance
• Avoid personal issues
• No stereotyping
• No comments that could be construed as stereotyping
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Top 10 HR Dos and Don’ts
• Don’t procrastinate
• Address situations as they arise
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Top 10 HR Dos and Don’ts
• Do treat employees with respect
• Don’t berate or belittle
• Respect privacy
• Remember the Golden Rule
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Top 10 HR Dos and Don’ts
• Don’t play favorites
• Leads to discrimination complaints
• Be consistent in the way you treat employees
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The Family and Medical Leave Act:New Regulations Effective January 16, 2009
HomeTown Health Labor Law Update
March 18, 2009
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Injured Servicemember
• An employee is entitled to take up to 26 weeks of leave in a 12 month period to care for a covered servicemember with a serious injury or illness.• Servicemember can be the employee’s spouse, parent,
child, or a relative for whom the employee is the “next of kin” (defined as the nearest blood relative)
• Employee may take leave to take care of an injured son or daughter over age 18
• Servicemember leave year is based on a single 12 month period and starts the first day that the employee takes servicemember leave
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Injured Servicemember
• Leave is applied on a per covered servicemember, per injury basis
• Regardless of the number of times leave is requested, an employee may only take 26 weeks of leave during any single 12-month period
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Injured Servicemember
• Form WH-385 (“Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave”) has been created for employers to use, if they choose
• In connection with the certification process, employer is permitted to obtain details about the injured servicemember’s condition, including:• Whether the injury occurred in the line of duty• When the injury occurred• Probable duration of the injury• Amount of time that the servicemember will require care
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Qualifying Exigency Leave
• An employee is entitled to take up to 12 weeks of leave due to a “qualifying exigency” arising out of the fact that the employee’s spouse, child, or parent who is a member of a reserve component or a retired member of the regular armed forces has been called to active duty.• Leave does not apply to family members of military
members in the regular armed forces• Leave year for qualifying exigency leave can be based
on the employer’s standard leave year29 CFR §825.126(b)(2)(i)
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What is a Qualifying Exigency?
• Non-exhaustive list in 29 CFR §825.126(a):• Short-notice deployment• Military events and related activities• Childcare and school activities• Financial and legal arrangements• Counseling• Rest and recuperation• Post-deployment activities• Additional activities agreed upon by the employer and
employee
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Qualifying Exigency Leave
• Form WH-384 (Certification of Qualifying Exigency for Military Family Leave)• Employer cannot require additional information
from the employee if a complete and sufficient form is submitted
• Employer may contact the Department of Defense to verify that the covered military member is on active duty
29 CFR §825.309(d)
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Who is Eligible?
An employee is eligible for FMLA leave if...• He has been employed by the employer for at least
12 months;
• He has worked at least 1,250 hours in the 12 month period prior to taking leave; and
• He works at a worksite with 50 or more employees within a 75-mile radius.
29 CFR §825.110(a)
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Eligibility: 12 Months of Service
• Does not have to be consecutive
• Any employment within past 7 years counts• Employment more than 7 years ago counts if:
• The break in service was to fulfill National Guard or Reserve military obligations (and time performing military service counts toward the 12 months), or
• A written agreement—including a collective bargaining agreement—documents the employer’s obligation to re-hire the employee after the break in service
29 CFR § 825.110(b)(1)-(2)
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Eligibility: 1250 Hours of Service
The time an employee would have worked if not fulfilling National Guard or Reserve military service obligations counts toward the employee’s 1,250 hours of service.
29 CFR §825.110(c)(2)
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When is eligibility determined?
• As of the date FMLA leave is to start, not when FMLA leave is requested
• Employee may become eligible for FMLA protected leave while on non FMLA leave
• Employee receives full FMLA entitlement starting on date he/she becomes eligible
29 CFR §825.110(d)
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What is a Serious Health Condition?
• Basic definition remains unchanged:• “an illness, injury, impairment or physical
or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115”
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Continuing Treatment
• Revised regulations clarify “continuing treatment”• Two visits to a health care provider must occur
within 30 days of the first day of incapacity (unless extenuating circumstances prevent the second visit);
• Employee must visit a health care provider within 7 days of the first day of incapacity; and
• In the case of a chronic serious health condition, the employee must visit a health care provider at least twice a year
29 CFR §825.115(a) and (c)
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Holiday Weeks
• If the employee is taking FMLA leave for a full week that contains a holiday, the holiday will be counted as a day of FMLA leave.
• If the employee is only taking a partial week of FMLA leave, the holiday will not be counted as FMLA leave unless the employee was otherwise scheduled and expected to work the holiday.
29 CFR §825.200(h)
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Substitution of Paid Leave
• Employee can substitute paid leave for FMLA leave
• Employer may require an employee to substitute paid leave for FMLA leave
• Paid leave will run concurrently with unpaid FMLA leave
29 CFR §825.207(a)
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Substitution of Paid Leave
• Must make employees aware of procedural requirements regarding the use of paid leave while on FMLA leave
• Employee who chooses to take paid leave must follow the employer’s policies regarding paid leave
29 CFR §825.207(a)
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Bonuses
• Former distinction between two types of bonuses:• Bonuses based on the absence of an
occurrence (perfect attendance, safety)
• Bonuses based on the achievement of goals (production)
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Bonuses
• Distinction eliminated: • Regulations address bonuses based on achievement
of a specified goal (hours worked, products sold, attendance, etc.)
• If employee fails to meet the specified goal due to FMLA leave, employer may deny the bonus
• HOWEVER, employer must provide bonus if employer would provide it to another employee who fails to meet goal because of any other leave type
29 CFR §825.215(c)(2)
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“Light Duty”
• An FMLA-eligible employee who is unable to perform an essential function of his job due to a serious health condition is entitled to leave and may not be required to accept light duty.
• Acceptance of a light duty assignment does not constitute a waiver of the employee’s prospective rights• Including the right to be restored to the position the
employee held before FMLA leave began• Right to restoration only lasts until the end of the 12-
month FMLA leave year29 CFR §825.220
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Releases / Waivers
• An employee can settle or release claims based on past employer conduct without DOL or court approval.
• An employee cannot waive prospective rights under FMLA.
29 CFR §825.220(d)
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Notice Requirements - Employer
• Form WH-1420 – Poster/General Notice• Must post even if no employees are eligible
for FMLA leave
• If any employees are eligible, must provide to each employee• Handbooks/written guidance regarding leave
• Distribute to new employees upon hire29 CFR §825.300(c)
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Notice Requirements - Employer
• Form WH-381 (Notice of Eligibility & Rights and Responsibilities)• Must be provided within 5 business days of
notification by employee that employee needs to take FMLA leave. (formerly 2 business days)
• If the employee is not eligible, employer must provide at least one reason why the employee is not eligible
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Notice Requirements - Employer
• Form WH-382 (Designation Notice)• If leave is not determined to qualify for FMLA, employer must
inform employee of that determination and the reasons for that determination
• Employer must inform employee of the amount of leave time that will be counted against FMLA entitlement (to the extent known)
• Employer must inform employee about the mandatory substitution of paid leave, if any
• Employer must list essential job functions that employee will need to be cleared by a physician to perform as a condition of returning to work
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Penalties
• New regulations eliminate categorical penalty for failure to appropriately designate FMLA leave
• Employer may be held liable for monetary losses sustained by the employee as a result of employer’s failure to comply with the notice requirements
29 CFR §825.301
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Notice Requirements - Employee
• Employee must comply with employer’s standard notice requirements for requesting leave, unless there are extenuating circumstances• Employer can require that employee provide written notice, notify
specific person
• Employee’s failure to comply with employer’s leave procedures can be grounds for delaying or denying request for FMLA leave
• FMLA leave may not be delayed or denied based on failure to comply with the employer’s leave policy if such policy requires notice to be given sooner than set forth in the regulations (at least 30 days before leave is to begin)
29 CFR §825.301(d)
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Notice Requirements - Employee
• If the leave is unforeseeable, notice must be given “as soon as practicable under the facts and circumstances of the particular case”
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Medical Certification – New Forms
• Form 380-E (Certification of Health Care Provider for Employee’s Serious Health Condition)• For an employee seeking leave for his own serious health
condition
• Form 380-F (Certification of Health Care Provider for Family Member’s Serious Health Condition)• For an employee seeking leave to care for a family member
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Medical Certification
• Employer is now allowed to request:• information about a health care provider’s
specialization or fax number• family member’s diagnosis• certification that intermittent leave is medically
necessary• Statement regarding essential job functions employee
cannot perform• Detailed information on anticipated frequency/duration
of intermittent leave29 CFR §825.306(a)
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Clarification and Authentication
• Old Regulations: Employer could not directly contact employee’s health care provider• Often resulted in delays in processing requests for
leave
• New Regulations: Employer may directly contact employee’s health care provider to authenticate information provided on a certification form without employee’s permission
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Clarification and Authentication
• Only certain people may contact health care provider:• Other Health care provider• Human Resources Professional• Leave Administrator• Management Official
• Employee’s direct supervisor cannot contact employee’s health care provider!
29 CFR §825.307(a)
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Clarification and Authentication of Medical Certification
• If an employee submits an incomplete or insufficient certification form, the employer must let the employee know in writing what additional information is necessary and give the employee seven calendar days to submit the requested information.
29 CFR §825.305(c)
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Second and Third Opinions
• If the health care provider giving the second or third opinion requests the employee’s medical records relevant to the alleged serious health condition and the employee refuses to release the records, the employer may deny FMLA leave.
29 CFR §825.307(c)
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Medical Certification
• If an employee’s need for leave lasts beyond a single year, the employer can require the employee to provide a current medical certification in each leave year.
• Each such certification will be subject to the regulations regarding authentication and clarification
29 CFR §825.305(e)
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Medical Certification
• If the employee’s serious health condition could also be a disability under the ADA, the employer is not prevented from requesting medical information under the ADA and using the information received when determining whether the employee is entitled to FMLA leave.
29 CFR §825.306(d)
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Recertification
• Employer can request recertification of an FMLA-qualifying condition:• No more often than every 30 days• Only in connection with an absence by the
employee29 CFR §825.308(a)
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Recertification
• Unless...• The employee requests an extension of leave• The circumstances described by the previous
certification have changed significantly• Duration or frequency of absence• Nature or severity of illness• Complications
• Employer receives information suggesting that the certification is no longer valid
29 CFR §825.308(c)
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Recertification
• If the employee requires leave for a period longer than 6 months, the employer can request recertification every 6 months in connection with an absence
29 CFR §825.308(b)
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Fitness for Duty Certification
• The employer must inform the employee on the designation notice if the employee is required to submit a fitness for duty certification in order to return to work.
29 CFR §825.312(d)
• The employer may contact the employee’s health care provider for clarification regarding the fitness for duty certification.• Subject to the same rules as the medical certification
29 CFR §825.312(b)
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Fitness For Duty Certification
• The employer may require that the fitness for duty certification address the employee’s ability to perform the essential functions of his or her job, if the employer makes such a request on the designation notice.
29 CFR §825.312(b)
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Fitness for Duty Certification
• If an employee is on intermittent or reduced leave, the employer may request a fitness for duty certification as often as once every 30 days, if “reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.”
29 CFR §825.312(f)
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Next Steps
• Review and revise FMLA policies and procedures
• Update notices and forms• http://www.dol.gov/esa/whd/fmla
• Train human resources professionals and managers
