Rate this article:
Average rating:
Total votes: 0
Employer correctly counted holidays when calculating Family and Medical Leave Act (FMLA) leave entitlement for employee who took intermittent leave in two separate multiweek blocks.
An employee who took leave in two separate three-week blocks of time was not entitled to an extra day of leave because of a holiday, a federal appeals court recently held, deciding the issue for the first time.
The employee needed the time off to care for her sick mother. Her employer, a university, granted the leave she requested, informing her that failure to return at the end of leave would be considered a voluntary resignation. While on leave, the employee informed her employer she intended to extend her absence by one day because of a university holiday that fell while she was out. Her employer informed her that holidays are counted as part of FMLA leave and then considered her to have resigned when she did not return to work on her scheduled day.
The employee argued that holidays do not count for intermittent leave, because an FMLA regulation states that “only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled.” She contended that she did not actually use up any leave during the holiday and thus she was entitled to extend her leave by one day. The court disagreed, explaining that the regulation in question (29 C.F.R. 825.205(a)) was intended to protect employees from having employers claim that a single day of leave during a five-day workweek actually counted as a full week of leave. The question of holidays that fall during FMLA leave is addressed in another regulation, which makes it clear that holidays that occur within a week taken as FMLA leave are counted as leave (29 C.F.R. 825.200). It does not matter if the leave is intermittent or not -- if it lasts a week, then any holiday within that week is counted as well.
This case describes how the FMLA regulations work together to protect the rights of both employers and employees. The court explained that because an employee taking FMLA leave in a single block must count holidays as leave, it would not be fair to allow an employee taking intermittent leave to avoid counting the same holidays.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Mellen v. Trs. of Boston Univ., -- F.3d --, 2007 WL 2745015 (1st Cir. September 21, 2007)].
Employee working light-duty job instead of taking FMLA leave is not entitled to be paid at wage rate of original position.
Although the FMLA guarantees that an employee will be able to return to the same or an equivalent position after taking leave, it does not promise an identical pay rate for an employee who returns to a light-duty job, a federal court recently held.
The plaintiff was injured at work and took time off for surgery. Instead of remaining at home on FMLA leave to recuperate fully, she returned to work under her employer’s workers’ compensation program in a light-duty position, earning $3.23 less per hour than she earned in her previous position. She contended that she was entitled to be paid her full wage, because the FMLA guaranteed her return to an equivalent job.
The court disagreed. It explained that although the FMLA requires an employer to return an employee to a previous position or equivalent job at the same rate of pay, the requirement only applies to employees who are physically able to perform their previous job. In this case, the employee could only perform light-duty work, and her return was governed by her employer’s workers’ compensation program, not the FMLA. Because she was unable to perform her previous job duties, the plaintiff was not entitled to be paid her previous wage rate.
This case describes an employer’s responsibilities under the FMLA as they relate to the duty to return an employee to a previous job. As this case explains, that duty is not absolute but depends on the employee’s ability to perform the duties of a prior position.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Hendricks v. Compass Group USA Inc., 496 F.3d 803 (7th Cir. August 6, 2007)].
Congressional debate about improving employment verification system heats up over discussion of Social Security mismatch letters.
Immigration reform has been a hot topic in 2007. Although the debate involves many issues, a significant one for employers and employees is the question of employment verification.
Currently, employers are required to complete a so-called I-9 form for each new employee, which documents that he is legally entitled to work in the United States. Employees are required to produce proof of their eligibility to work through such documents as a passport, Social Security card, green card and other similar pieces of identification. If the Social Security number provided by an employee does not match other employment information, the Social Security Administration currently issues a so-called “mismatch” letter, informing the employer of the discrepancy.
Under a proposed rule from the Department of Homeland Security (DHS) regarding the mismatch letters, employers would have 30 days to verify that the mismatch was not the result of a clerical error and then would be required to ask the employee to confirm the accuracy of the employment records. If the problem is not rectified within 90 days, the employee must complete a new I-9 form without the prior Social Security number and provide documentation confirming his identity. Employers would be criminally and civilly liable for continuing to employ workers who could not demonstrate the legal right to work in the United States.
The response from business and employment groups to the proposed regulation has been considerable. Some experts argue that the rule will place employers in a tough position; if they abide by the rule and fire undocumented workers, they risk being sued by those workers for discrimination, and they can be subject to criminal sanctions for failure to follow the new rule. On October 10, after a consortium of business groups and unions filed a lawsuit against implementation of the rule, a federal judge in California issued a preliminary injunction halting its application for now. The government will likely challenge the injunction, but for now, the DHS is barred from implementing the new mismatch rule.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see American Federation of Labor v. Chertoff, 2007 WL 2972952 (9th Cir. October 10, 2007)].
Employer did not violate National Labor Relations Act (NLRA) when it failed to hire union supporters who had no true interest in getting a job.
The National Labor Relations Board (NLRB) overturned a number of hiring discrimination claims brought against an electrical company, because the applicants in question applied for jobs only for the purposes of organizing workers and were not seriously interested in obtaining jobs.
When a union sends members to a company to apply for employment solely for the purpose of organizing workers, it is known as salting. The applicants do not truly want a job with the employer. When the employer refused to hire a number of the salts, the union filed discrimination and unfair labor practice charges against it, and an administrative law judge upheld the charges.
The NLRB reversed the finding. Although the NLRA protects workers against discrimination on the basis of their union affiliation, such protection only extends to “employees” within the meaning of the NLRA. Under that law, individuals who do not have a genuine desire to work for an employer are not employees. There is no promise of an economic relationship between the parties; the salts have no desire to keep their job or work for the benefit of the employer. Although some salting activity is protected, that protection does not extend to the purpose of generating numerous meritless unfair labor practices charges.
This case describes the practice of salting and explains one of the limitations on unions’ use of salts to organize workers under the NLRA.
--Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Toering Elec. Co., 351 N.L.R.B. No. 18 (September 29, 2007)].