You don't have to be sued to lose an FMLA case.
Recently the Department of Labor has stepped up efforts to help employees who haven't initiated a lawsuit. Even more ominously, the DOL is increasing the number of cases it undertakes on its own, before an employee has even filed a complaint.
One of the biggest employer complaints about the FMLA has long concerned the productivity problems caused by employees' use—and abuse—of intermittent leave. The problem: Employees with chronic health problems often take FMLA leave in short increments of an hour or less. That can cause a productivity, scheduling and cost predicament. Revisit how you track FMLA intermittent leave...
In 2015, for example, the EEOC initiated over 42% of the wage-and-hour investigations it conducted—a record high. And in 79% of the investigations it initiated, it found a violation and recovered an average of $8,900 in back wages to workers who never filed a complaint.
The DOL also has jurisdiction over FMLA enforcement and can investigate employee FMLA complaints.
It has the authority to order the reinstatement of employees who have been terminated after taking FMLA leave and can tell the employer to pay back wages that may be due, plus other damages.
Even though managing intermittent leave can be vexing, the FMLA does give employers some tools to better track leave and combat abuse. The best approach: Use the DOL's official certification form—WH-380E. Then review the form to make sure it's complete before you approve leave. Discover more of the best strategies for tracking and certifying leave requests.
A recent case shows how that process works.
A banquet server who had worked for The Mirage Hotel and Casino in Las Vegas complained to the DOL that he had been fired for taking protected FMLA leave. A year later, the resort reinstated him while the investigation was still pending, apparently concluding that it should not have terminated him.
The man was glad just to have his job back.
But that wasn't good enough for the DOL. As investigators reviewed the server's reinstatement, they concluded that the resort owed him more, including full back pay for all the hours he would have worked had he not been terminated, plus credit for those hours toward his pension and for his health care coverage that he would also have had.
The DOL said all that was worth $74,000 for the year the man spent idle and ordered The Mirage to pay him.
Practical impact
What does this mean for employers and HR? It considerably ups the prevention ante.
Make sure all your managers and supervisors understand the FMLA and don't punish employees who ask for or take FMLA leave. Assume the DOL will discover the violation, either by following up on an employee complaint—or more frequently these days, on its own.
FMLA Intermittent Leave: Compliance Workshop
On Thursday, September 29, find out how to prevent and correct FMLA compliance problems and effectively manage all types of FMLA intermittent leave issues. In just 75 minutes, this must-attend webinar, presented by Ogletree Deakins attorney Cherry Malichi, will teach you how to: - Identify, evaluate and resolve issues related to administering intermittent FMLA leaves
- Confidently handle any intermittent FMLA question thrown at you
- Correctly use the tools employers have available to address unscheduled and intermittent leaves (certifications, call-in rules, attendance procedures and more)
- Manage the practical FMLA intermittent issues, not just the legal ones (Find out not just what the FMLA says for these situations, but what it means)
Leverage the power provided to employers in such situations (When you can clarify with a doctor the need for leave … and when you should get a second or third opinion)- Learn lessons from important new FMLA court decisions. Previous rulings lay out a path for the best (and worst) paths to complying with intermittent-leave laws
- Understand 'real-world' FMLA scenarios. We'll hold a mirror up to HR and explain how to manage the real-world situations you face daily in administration of FMLA intermittent leaves
- Identify the key questions you should be asking each and every time an employee seeks leave … and get your questions answered by a true FMLA expert
Register today!
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