Audio (MP3) Listen in New Window Presentation (PDF) Open in new window FMLA Updates and Interplay with ADA and Worker’s Compensation • FMLA enacted in 1993 • New regulations issued November 2008, taking effect 2009 • NDAA of FY 2010 (passed late 2009) once again amended FMLA • February 2012, proposed regulations issued • February 2013, final regulations issued Effective March 8, 2013 Qualifying Exigency “Qualifying Exigency” arising out of employee's spouse, son, daughter or parent who is a "covered military member" called to "active duty“/deployed to foreign country • Short notice deployment – 7 days prior • Military events – ceremony, support events • Childcare/school – arrangements, meetings, transfers • Financial/legal – benefits, banking, wills • Counseling – arising from call to duty • R & R – 15 days for each R & R • Post deployment – events within 90 days • Care for military member’s parent incapable of self care • Other – as agreed Military Caregiver Leave • 26 weeks to care for servicemember during single 12-month period • Spouse, son, daughter, parent or next of kin • Per current servicemember per injury/illness • Not more than 26 weeks in 12 months • 12 weeks only for non-servicemember leaves • Designation must first be for servicemember leave if it qualifies as both Covered Servicemember & Serious Injury or Illness • Definitions expanded: • Includes Veterans discharged within the 5 years prior to first date of FMLA leave • Do not count from October 28, 2009 through March 8, 2013 when calculating 5 years • Serious injury or illness may have been incurred or aggravated by service in the line of duty while on active duty • Injury or illness includes a physical or mental condition for which: • the veteran has received a VA Service Related Disability Rating of 50 percent or greater; • substantially impairs ability to secure or follow gainful occupation; or • the veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers Other Clarifications • USERRA and impact on eligibility • must treat absence as counting towards FMLA eligibility (both months and hours) • Increments of leave • smallest increment of time used for other forms of leave • or shorter • Obligation to Comply with GINA confidentiality requirements • NEW POSTER – MARCH 8, 2013 DEADLINE ADA and Worker’s Comp Interplay • No right to "Light Duty" under FMLA • May be offered as ADA accommodation • Can require in connection with workers’ comp but employee can turn down under FMLA • Light Duty does not count against FMLA's 12 weeks of leave • Right to restoration to prior position held before FMLA commenced – ends at end of 12-month FMLA leave year Paid Leave • Employee can choose to substitute paid leave for FMLA • Employer may require substitution, and to run concurrently with FMLA • Employer must inform employee that he/she must comply with paid leave policy to receive paid leave • Disability and workers' comp – can designate to run concurrently but can't require substitution Exhaustion of FMLA Leave • Can you automatically proceed with terminating an employee’s employment once s/he has exhausted FMLA leave? • Are there additional ADA considerations? The National Labor Relations Board . . . and its Complicated and Ever-Changing Set of Laws and Regulations The NLRB’s Scrutiny of Social Media Policies and Discipline Employee Use of Social Media • Protected Concerted Activity - Section 7 of the National Labor Relations Act states: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment. (emphasis added) • Allows employees to discuss (and complain about) the terms and conditions of their employment on social media platforms. • American Medical Response of Connecticut, LLC • EMT posted criticisms of her supervisor on Facebook from her home computer; co-worker friends joined in • Three weeks later, company fired EMT for violating its policies prohibiting, inter alia, disparaging comments about supervisors and co-workers • Teamsters filed ULP on behalf of EMT, alleging unlawful termination and overly-broad policies • NLRB found employee’s comments to be protected activity; could not be the basis for her termination. Case eventually settled. • Karl Knauz Motors • Salesman at car dealership fired after posting two criticisms of employer on his Facebook page: • One related to mishandling of sales event by serving hot dogs; • Other related to allowing 13-year old to test drive a Land Rover. • Criticisms about sales event were protected; derived from concern over sales & commissions • Criticisms about test drive were not protected; no connection to terms and conditions of employment • Firing upheld because employer tied it to test drive comments only Hispanics United of Buffalo, Inc. and Carlos Ortiz • Facebook posting: “Lydia Cruz , a coworker, feels that we don’t help our clients enough. I about had it! My fellow coworkers how do u feel?” • Elicited supportive comments from other co-workers • Cruz filed a complaint under the company’s zero tolerance policy for bullying and defamation • The company fired five employees who participated in Facebook dialogue • NLRB: Terminations unlawful; Facebook postings were “protected concerted activity” • Employees reinstated with backpay. Social Media Policies • Policies often “Overly Broad” and “Discriminatory” • “Chilling Effect” on employees’ exercise of Section 7 rights • NLRB General Counsel’s May 30, 2012 Memo • Examples of “overly broad” policies: • prohibition of “disrespectful conduct” and “inappropriate conversations”; • prohibition of unprofessional communications that could negatively impact the employer’s reputation or interfere with its mission; • prohibition of unprofessional or inappropriate communications about members of the employer’s service area/community; • prohibition of employees’ use of hospital logo, trademark, etc.; • requirement that employees to make honest, professional, and appropriate communications on social networking sites without any defamatory or inflammatory comments. Employer Policies You be the Judge: Good or Bad?? • You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services. Remember to use good judgment. • BAD • Maintain the confidentiality of [Employer] trade secrets and private or confidential information.Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications. • GOOD • Treat everyone with respect • BAD • Any employee caught texting about a union will be subject to discipline, up to and includinghaving their thumbs removed - permanently. • VERY, VERY BAD Other NLRB Initiatives • Employment-at-Will Acknowledgments • NLRB: Some acknowledgments could reasonably tend to chill employees in the exercise of their rights under the NLRA – i.e., those that require employees to agree to remain employees-at-will or suggest that the status can’t be changed. • Question: Would an employee reasonably interpret an employment-at-will provision to restrict his/her right to engage in concerted attempts to change his/her employment-at-will status? • Examples of potentially unlawful language: “I agree that the at-will employment relationship cannot be amended, modified or altered in any way”. “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status.” “Confidential” Investigations • “Keep our discussions confidential while our investigation is ongoing.” Potentially Unlawful! • Requiring blanket confidentiality of internal investigation = unlawful “chilling” of employee rights. • Must consider individual circumstances. Employer must justify in each instance that it has a legitimate business justification that outweighs employee rights. • Specifically, must show one of the following four justifications: • That a particular witness needed protection; • That evidence was in danger of being destroyed; • That testimony was in danger of being fabricated; or • There was a need to prevent a cover up. Discussion of Wages • Parexel International, LLC • Employee falsely told that South African employees were being favored and receiving higher raises • Employee believed the rumor and suggested to manager that “everyone quit and return with a raise” • Employee never discussed her concerns with other employees (no actual “concerted activity”) • Employee fired six days later • Termination unlawful: Employer cannot take “preemptive strike” to prevent discussion of wages Off-Duty Access Rules • Sodexo America • Rule restricting off-duty employees from accessing the facility, unless: • they wished to visit a patient; • they needed medical treatment; or • to conduct hospital-related business • Rule unlawful because it gives management “unlimited discretion to decide when and why employees may access the facility.” • The rule unduly discouraged employees from engaging in protected Section 7 conduct (employees would have to disclose their intention to engage in protected activity = “chilling effect”) Union Stickers & Insignia • Saint John’s Health Center • General rule: healthcare employers can restrict wearing of non-official buttons and insignia in immediate patient care areas. • BUT…selective enforcement unlawful, unless employer can show the restriction was “necessary to avoid disruption of healthcare operations or disturbance to patients.” • Here, employer prohibited wearing of union “patient care” ribbons in direct patient care areas, but allowed wearing of similar hospital provided buttons (selective enforcement…) • Prohibition unlawful: Employer could not show patients were disturbed by the ribbons or any real difference between union ribbons and hospital buttons.