The Ninth Circuit Said What About Designating FMLA Leave?

human resources keyboard buttonOk, I will admit it. I have read the FMLA regulations from front to back… several times. An even bigger admission – I actually enjoy reading the regulations.

While managing FMLA leave is not exactly a walk in the park, the regulations are actually quite refreshing. They make sense. They might not answer every question, but they can get you most of the way there if you are willing to spend the time to navigate your way through the tiny print.

Then comes the recently published decision in Escriba v. Foster Poultry Farms, Inc.  This case relates to the appeal of an FMLA interference claim, but deals squarely with the issue of whether an employee may refuse to exercise FMLA rights (i.e., whether an employee can decline to take FMLA leave for absences that are otherwise FMLA-qualifying).  The Ninth Circuit explains that the Act does not expressly state whether an employee may decline or defer exercising FMLA rights.  The regulations, on the other hand, squarely put the requirement on the employer to designate FMLA leave.  This suggests it does not matter whether the employee wants to take FMLA leave or not.  The employer must appropriately designate the leave.  Ahh, I love the regulations.  Seems clear cut, right?  Wrong.

The new wrinkle in it all is that the Ninth Circuit concluded in Escriba that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”  The Court pointed to an area of the regulations that require an employer to ascertain whether FMLA leave is being sought.  This provision is related to the requirement that the employer has to figure out more about the reason for leave (through the certification process, etc.), and the fact that the employee does not have to specifically walk in to HR and say, “I would like to request FMLA leave, please.”

If you thought managing intermittent leave was difficult, think about the practical problems this creates – an employee can arguably save up FMLA leave and take non-FMLA leave days off that otherwise would have qualified as FMLA leave.  Now, the employee has an FMLA-bank for a rainy day even though that same employee may have just taken a few weeks of sick days.  And, following Escriba, how does an employer enforce its policy that paid days off must be taken concurrently with FMLA leave?  What does a company do when an employee is being wishy-washy about whether he or she wants to take FMLA leave?  Do they now have to engage in a letter-writing campaign to ascertain how the employee feels about FMLA leave on any given day?  This case could result in an employee taking way more leave than he or she is entitled and, for those employees who don’t fully understand the Act, they could potentially lose out on job protection (it’s not absolute, but hey – it helps) if they decline FMLA leave. This truly makes this case a lose-lose for employers and employees.

An employer can still enforce its attendance policy against employees who miss work and decline FMLA coverage.  However, it is murky waters for employers because if a company does not properly designate leave as FMLA qualifying, my reading of the regulations (29 C.F.R. 825.301(a)) is that the employer did not fulfill its duty.**  Now, Escriba teaches that companies must ignore that duty and, in many instances, do what the employee asks.

If a company is within the jurisdiction of the Ninth Circuit – such as Arizona – this case is troubling.

**Although, one colleague recently pointed out that the Ninth Circuit trumps my personal opinion; therefore, I suppose I will leave it at that.

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Meeting the New ADOSH Director

photo-149Last week I attended the OSHA presentation at Snell given by Bill Warren, the new Director of the Arizona Division of Occupational Safety and Health.  The presentation was aptly titled “Meet the New Director,” and it provided just that – the perfect opportunity for industry leaders to hear from Bill first-hand.

For those following facts and figures – in FY2013, there were 1,164 inspections, an increase from the previous year, and 655 of them were in the construction industry.  Also, there are currently 35 employers in the ADOSH Volunteer Protection Program which provides consultation for employers.  Quite frankly, I am surprised there aren’t more companies signed up for the VPP.  For those who don’t know what it is, the VPP is a voluntary (hence the “V” in VPP) program that companies may apply to participate in.  Participating companies then receive consultation services, such as: on-site safety and health surveys and the development and review of safety and health programs, among other benefits.  Citations and penalties are not assessed during this audit process.  Bill also confirmed that the consultant does not notify the compliance section of ADOSH – thus, the consultants are truly there to assist the company with improving workplace safety.  ADOSH further explains requirements for the applicants as follows:

In Arizona, an applicant must have an average injury incidence rate and lost workday rate for a three-year period that is at or below the national average for the employer’s industry and a comprehensive safety and health program that is and has been in effect for at least one year. A worksite must ensure management commitment to worker safety and health protection, a written safety and health program, worksite analysis of existing or potential hazards, hazard prevention and control, safety and health training, employee involvement in safety and health activities and annual program evaluations. In addition, there must be formal signed statements from any collective bargaining agents indicating their support of the VPP application.

VPP participants are exempt from programmed inspections while they maintain their VPP status.  Being part of the VPP sure seems like a win-win to me.

Bill also talked about the whistleblower protections – ADOSH conducted 66 discrimination investigations in FY 2013, and he also touched on some of the significant investigations.

The hour was time well-spent.

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It’s THAT Time of Year Again…

3d person with christmas treeDecember is the time for so many things. In Arizona, it’s when I actually start wearing my winter coat* (although, I’ll admit it got cold a little early this year). It is time to decorate the house for the holidays and perhaps even break out the Elf on the Shelf. And, yes, it is even time for companies to update their policies and employee handbooks and also ensure that all required posters are… posted.

Employers constantly evaluate what needs to be updated, but there is something about the month of December that serves as a reminder to those who keep moving these updates to the end of the to-do list. I will be the first to admit, it is easy to move “update employment documents” to the end of the line when there are much more pressing issues. However, it is important to ensure that changes in the law are reflected in the policies – in some instances it means the difference between being able to assert an affirmative defense or not – and to ensure that the policies reflect what the company actually does.

When it comes to the required posters, each company has to take a close look at its own business to determine what needs to be posted pursuant to federal and state law.  The poster requirements vary based on the number of employees the company employs, the location the employees perform work, the industry the company is in, whether the company is a federal contractor, and the types of individuals who are employed.

In Arizona, for example,** employers are required to post certain posters, including those addressing constructive discharge, employment discrimination, minimum wage, no smoking (in color and in a conspicuous location at all entrances and visible from the outside), safety and health protection on the job (on 8” x 14” paper), unemployment insurance, work exposure to bodily fluids, work exposure to MRSA, spinal meningitis, and TB (for all employers whose employees may receive significant exposure to MRSA, spinal meningitis or TB in their regular course of employment), and workers’ compensation.

Employers have to determine whether additional postings are required under federal  law, including: OSHA Job Safety and Health, Employee Polygraph Protection Act Notice, E-Verify (participating employers), Fair Labor Standards Act poster on Minimum Wage, Right to Work (for right-to-work states), Uniformed Services Employment and Reemployment Rights Act poster for Non-Federal Contractors/Employers, National Labor Relations Act poster on Employee Rights [Appellate courts have temporarily enjoined the NLRB's rule requiring the posting]; (15+ employees) Equal Employment is the Law – including Title VII, ADA, ADEA, EPA, and GINA; (20+ employees) COBRA; (50+ employees) FMLA; and so on.

Poster requirements frequently change and posters are updated often.  Companies need to replace and update posters throughout the year and post in languages of the individuals reading the posters.  Happy Posting!

* Yes, I said “coat” not “coats.” I only own one winter coat. It gets worn the five or six days a year when it is freeeeeezing (i.e., 40 degrees or below).

** And if it’s not totally clear, this article is not intended to be the end-all-be-all of the posters each company needs (or doesn’t need) to post. Do your own research or, better yet, consult with legal counsel.

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State Bar of Arizona – Labor and Employment Fall Seminar in Sedona

This past Friday and Saturday was the Employment and Labor Law Section’s Annual Fall Conference in Sedona. Maybe I am biased (actually, I am pretty sure I am biased since I was a co-chair of the event), but our speakers were top notch and had every person’s attention from the second we got there until the second we left. That’s quite the accomplishment, if you ask me, because that means a group of 75 or so attorneys chose to sit and learn about the law instead of going hiking, on a jeep tour, or on any other adventure in the perfect Sedona weather.

For those who requested I post the link to the video about social media in 2013- here you go.

If you weren’t able to attend, but want to get an idea as to what the event was like, you can check out the pictures below (magnifying glass needed) or my live-tweets on Twitter (#AZemplaw).

Fall Seminar

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Arizona Records Requests

I recently attended the lunch program Pre-Litigation Discovery: A New Look at the Arizona Public Records Law, sponsored by the Employment and Labor Law Section of the State Bar of Arizona. The speakers were KATHRYN MARQUOIT, Esq., Arizona Ombudsman’s Office, JERRY KIRKPATRICK, Arizona State Library, Archives and Public Records, and KRAIG MARTON, Esq., Jaburg Wilk PC, and they gave a detailed summary of what to do and what to expect when requesting public records requests during or prior to employment litigation.

It was a great presentation and I figured I would pass along a few of the websites that were mentioned that seem particularly helpful:

When seeking Arizona public records, this link contains a list of numerous agencies where records can be found (and requested) in the State. The information spans just about everything you can imagine – from birth and death information to UCC liens.

The retention schedule HR/personnel records held by the Arizona State Library, Archives, and Public Records is a good document to hold on to – not only because it shows the retention requirements, but it also identifies the series numbers for various categories of information. The series numbers allow a person making a public records request to refer to a particular series number which helps make clear exactly what is being sought.

And this wasn’t part of the presentation, but I wanted to pass along one more link just for fun for the Arizona readers. I came across this website the other day following a conversation I had at the Arizona Small Business Association’s 40th Birthday Bash. If you are looking for something to do this weekend, check out Local First lists “Arizona Favorites” it has numerous Top 10 lists of local restaurants that are submitted by local politicians, executives, tv personalities, and so on.

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