Individual Liability Under the FMLA

Posted on March 16, 2012 by MGrabell

Supervisors of both private and public sector employees can be held individually liable under the FMLA, according to a recent opinion from the U.S. Court of Appeals for the Third Circuit. Other Circuit Courts have similarly ruled.

In order to be subject to individual liability, the supervisor must exercise supervisory authority over the plaintiff and be responsible, at least in part, for the alleged FMLA violation. Courts commonly use the “economic reality test” used in Fair Labor Standards Act cases.

This decision stresses, once again, how important training your managers can be to avoid liability.

Contact me to learn how ERS can customize affordable training seminars that meet your specific needs and train your staff on how best to avoid an employee claim.

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Does Your Attendance Policy Violate the ADA?

Posted on March 16, 2012 by MGrabell

A federal court in California recently ruled that Dillard’s attendance policy, which required employees to provide a doctor’s note identifying the nature of a health-related absence for such absences to be excused, violated the ADA.

The employee’s doctor’s note simply said “off work this week return 6/5/06.” The manager did not excuse her absences because the note failed to state the nature of the health condition being treated, as required by Dillard’s attendance policy. The employee refused to supply additional information and she was terminated.

Dillard’s argued that the policy was necessary to verify the legitimacy of medical absences and to ensure that employees can safely return to work without posing a threat to themselves or others.

The court held that the policy was unlawful on its face because it permitted supervisors to conduct disability-related inquiries in violation of the ADA.

This ruling emphasizes to employers that management and human resources personnel should limit health-related inquiries to the employee’s ability to perform his or her job responsibilities. Of course, if the employee requests an accommodation, then health-related questions related to performing the job may be permitted.

Contact me to learn how ERS can customize affordable training seminars that meet your specific needs and train your staff on how best to avoid an employee claim.

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Prior to Termination

Posted on March 16, 2012 by MGrabell

On March 13, 2012 I am addressing the SHRM Atlanta chapter on How to Properly Terminate an Employee To Avoid Litigation. A recent case highlights one piece of advice that I offer regarding managers’ mistakes:

The EEOC has urged a court to revive an age bias suit brought by a 71-year old worker because of an “explicitly age-biased” comment made within a month of the employee’s termination. The comment was “You’re 71 years of age. How long do you expect to work?…”  The comment was made directly to the employee by the decision maker in his termination.

According to the EEOC, “While this evidence might not compel a jury to find in [the employee's] favor, it is sufficient to allow a reasonable jury to conclude that [the decision maker] terminated him because of his age.”

These, and many other, mistakes by managers/decision makers lead to lawsuits that are costly and time consuming and can easily be avoided with proper training.

Contact me to learn how ERS can customize affordable training seminars that meet your specific needs and train your staff on how best to avoid an employee claim.

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Misclassification of Workers

Posted on March 16, 2012 by MGrabell

As you know from past updates, the U.S. Department of Labor has recently increased its efforts to combat misclassification of workers. Louisiana has just become the 13th state to agree to share information and coordinate enforcement efforts with the DOL to combat this growing problem of misclassifying workers as independent contractors thereby denying them critical benefits and protections such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance.

The DOL recently emphasized that misclassification often pressures law-abiding business owners who find it difficult to compete to break the law as well.

As reports of lawsuits under the Fair Labor Standards Act are gaining exposure, you need to review your classifications of your workforce in order to avoid a claim being filed.  Once an employee files a claim, the DOL will investigate and examine your entire workforce.

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Pregnancy Discrimination Claims On The Rise

Posted on February 16, 2012 by MGrabell

Even with the Pregnancy Discrimination Act, the Family Medical Leave Act and individual state statutes on the books, the number of pregnancy discrimination charges filed with the EEOC has increased as much as 35% in the past 10 years. It has been reported that women make up 47% of the workforce and two-thirds of those working women solely support or help support the household financially, making it imperative that they not lose their jobs or income because of pregnancy.

On Wednesday this week, an expert panel told the EEOC that there needs to be greater enforcement efforts and clearer guidance from the Agency in order to curb the number of pregnancy discrimination claims. Evidently, managers and supervisors and other decision makers are not aware of, or simply choose to ignore, the protections for pregnant women.

To reduce liability, employers have to have clear and consistent employment and hiring policies in place that protect the rights of pregnant women and adhere to federal and state laws.

More important….employers need to frequently and repeatedly train their management staff on these issues.

Contact me to learn how ERS can customize affordable training seminars that meet your specific needs and train your staff on how best to avoid an employee claim.

Posted in EEOC, Law, Training | Leave a comment