"leave/FMLA" Blog Tag

FMLA, perfect attendance and getting sued (and losing)

September 16th, 2019 by Fiona Ong at Shawe Rosenthal

Perfect attendance

When is a perfect attendance program not perfect?

  1. When it violates the FMLA.
  2. When it "resets the clock".
  3. Something to do with a point reduction system.
  4. When it isn't.
  5. Most of the above.

Fiona Ong has the key to this quiz but doesn't need it and explains it all for you anyway. 

IL Artificial hiring, salary history, required training, etc.

September 13th, 2019 by Hannah Sorcic and Adam Weiner at ReedSmith

Sweet n low

If you hire artificially, can you pay in Sweet N' Low?

Can you ask about an applicant's salary history? Is sexual harassment prevention triaining mandatory? Every year? Are non-employees protected from harassment by the law? Another mandatory annual reporting requirement every year?

Hannah Sorcic and Adam Weiner answer these questions (well, maybe not about paying in Sweet N' Low) and more.

NY Additional workplace protections for victims of domestic violence

August 28th, 2019 by Melissa Osipoff at Fisher Phillips

Domestic violence month october

On August 20, Governor Andrew Cuomo expanded the protections employers must provide to employees who are victims of domestic violence.

The amendment expands protections against discrimination and obligates employers to provide reasonable accommodations for certain conditions of leave.

What do you need to know in order to be in compliance before it becomes effective November 18, 2019?

FMLA – employer coverage and employee eligibility

August 28th, 2019 by Nancy Van der Veer Holt

Ford & Harrison LLP

When determining coverage by the FMLA, there are criteria for both employers and employees.

The following employers are covered by the FMLA:

  • employers that employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year
    • All employees, whether part time or full time, and even temporary workers, are included in the count to reach the 50-employee threshold. Volunteers (if not on the employer's payroll) will not count. Employees employed outside the United States, the District of Columbia, or United States territories are also not counted.
    • Employees on a leave of absence or suspension are counted towards the threshold as long as there is a reasonable expectation that the employee will return to work. Laid-off employees are not counted.
  • a successor in interest of a covered employer
  • companies that jointly employ employees
  • any public agency (regardless of the number of employees)
  • public and private elementary and secondary schools (regardless of the number of employees)
  • the United States, the Senate and House of Representatives, and all U.S. agencies
  • state governments (regardless of the number of employees)
  • local governments (regardless of the number of employees)

Look past the laws (pudding) and understand the regs (Oreo)

August 28th, 2019 by Kathy Speaker MacNett at SkarlatosZonarich

Oreo pie

The proof is not only in the pudding, it's in the regulations and administrative agency interpretations.

So when the employment laws change, be sure you don't stop there because there may be an Oreo cookie hidden somewhere in the pudding (leftovers from an Oreo pie recipe).

NY 11 employment laws you missed if you blinked (not 10)

August 28th, 2019 by Jennifer Queliz at Cozen O'Connor

Spinal tap

Not content to simply stop at 10 new employment laws and regulations, the state that gives us:

  • Eleven Madison Park (the #4 restaurant in the world),
  • Eleven (a clothing line aiming "to enhance the conversation amongst footballers – the world over")
  • 11R (an art gallery that hasn't updated their website since 2017)

pushes over the double-digit threshhold ala Spinal Tap and their magic amps with 11 new employment laws and regulations that have passed of gone into effect this year.

Key FMLA definitions

August 21st, 2019 by Nancy Van der Veer Holt at FordHarrison

Coverage for employers As with other employment-related statutes, the FMLA applies only to certain employers. Under the FMLA, an "employer" is: any person engaged in commerce or in any industry affecting commerce that employs 50 or more employees for each working day during each of 20 or more cal...

Nursing mothers, employers and the DOL – discuss

August 19th, 2019 by hrsimple

Coffeetalk 4

In a surprise announcement, the U.S. Department of Labor introduced Linda Richman and Liz Rosenberg (pictured) as hosts of the Supporting Nursing Mothers in the Workplace Online Dialogue during the week of August 19 through August 23, as well as a Twitter chat on Tuesday, August 20, 1:00pm - 2:00pm Eastern.

Kate Torgerson, founder and CEO of Milk Stork fully supports the dialogue: "People talking, people understanding, people realizing working and breastfeeding can co-exist – win-win-win."

Discuss, talk amongst yourselves, coffee talk.

Make your workplace a SUE-free zone

August 14th, 2019 by Robin Shea at Constangy

Sue free zone

To be clear (for those of you who don't look at the pictures in my posts, which frankly is a little hurtful), I am not referring to SUE the T. Rex (and yes that is the correct spelling, just ask The Field Museum).

I am referring to getting a piece of certified mail that may make you wish you were battling SUE and not being sued.

We turn again to Robin Shea for five of ten ways employers get themselves sued, as she weaves together medicine, Stranger Things, needles, nachos, the Dodd Frank Wall Street Reform and Consumer Protection Act and hygiene,

SC Not really married, not really benefits, not really leave

August 5th, 2019 by Reggie Gay at Burr Forman McNair

Not married

You know what they say . . . no marriage license, no benefits, no FMLA leave.

At least if you got married after July 25, 2019

Reggie Gay says the South Carolina Supreme Court abolished common law marriage which therefore eliminates benefits and FMLA leave.

SC Common law marriage is no more – this affects the workplace how?

August 2nd, 2019 by Benjamin Dudek at Fisher Phillips

Why buy the milk

Why buy the cow if you can get the milk for free.

Exactly* the reasoning behind The South Carolina Supreme Court's decision that as of July 24, 2019, South Carolina will no longer recognize common-law marriages going forward.

What this means for employers: just because an employee claims they have a common-law marriage doesn't mean they have access to employee benefit plans or leave typically available to a spouse.

* OK, maybe not exactly, but if the shoe fits, take the bull by the horns.

MN I gotta do what?

July 8th, 2019 by Ashley Thronson at Fredrikson & Byron

What mn

You gotta make changes because changes have been made to various disclosure, recordkeeping, commission and/or sick leave requirements. And Bruce Boudreau, like you, wants to know what they are.

Lucky for you and Bruce that Ashley Thronson has laid out your need-to-know in 800 words (or thereabouts). And for those of you who are PBS fans, she does it without an Australian accent, dontcha know.

Workplace leave for fathers who know best

June 17th, 2019 by Robin Shea at Constangy

Father knows best

In celebration of yesterday being Father's Day, and to avoid any sort of discrimination charge or group protest (Quiz Equity? Father Mother Level Access? Primary Caregivers Are People Too?) because we already posted Robin Shea's "Moms in the Workplace" quiz!, here is her "Dads in the workplace" quiz!*

* We believe that the use and/or non-use of capital letters and/or punctuation is a right of every writer / reader / phonetic punctuator, so talk to the hand.

"Moms in the Workplace" quiz!

May 10th, 2019 by Robin Shea at Constangy

Mom at nw game 2

My Mom quiz experience had a "Groundhog Day" quality to it: the same quiz every time, one question, yes/no.

"Didn't I tell you to clean your room?"

Bill Murray eventually learned to play the piano, right?

Robin Shea helps us celebrate our Moms with a six-question, open book, multiple choice quiz with a grading scale from "Little Women" to "Throw Mama From the Train".  And I learned how to make a flower with my keyboard.

Happy Mother's Day Moms!

FMLA - speak clearly and carefully and explicitly

April 25th, 2019 by Fiona Ong at Shawe Rosenthal

What not to say to an employee seeking FMLA leave:

  • "I'll take care of it."
  • "You're terminated."
  • "What's FMLA?"
  • "I will obtain the required form from the doctor for you but then just fax the form and forget about it."

Fiona Ong shares a story and some lessons and calls her teenagers crazy. 

Better parental leave or you better believe parents leave

March 18th, 2019 by Jake Rubenstein at Cozen O'Connor

Which comes first, the parent or the leave?

Jake Rubenstein summarizes five cutting-edge parental leave benefits you can use to attract top talent in a job market with historically low unemployment. Because if you aren't offering them, maybe your competitors are. And you know what that means:

Parents leave.

Why You Should Care About Employment Law

January 23rd, 2019 by Jenny Goltz at Cozen O'Connor

Common Pitfalls for Emerging Companies Founders of emerging companies are often first-time employers and find themselves having to wade through the dense patchwork of state and federal labor and employment laws. This can be a confusing undertaking that often requires legal counsel. However, there are a few very common employment law pitfalls that all emerging com...

Employers beware - what you say can and will be used against you

November 20th, 2018 by Darryl McCallum at Shawe Rosenthal

The FMLA leave has two very bright-line disqualifications, right?

  1. Your employee has worked for less than one year.
  2. Your employee has not worked a total of 1,250 hours.

Check both of those boxes and FMLA leave is off the table. Period. End of discussion.

Except not.

Darryl McCallum explains what went wrong (think assurances), how to avoid the wrong (think communicate and document) and how it may have been worse (think ADA, then shudder).

Holiday stew – ingredients for a happy and non-litigious holiday

December 17th, 2018 by hrsimple

Holiday stew – we all have our own recipe, but the base is almost always the same: booze, mistletoe and a generous pinch of unapproved time off. And be sure you don't have enough time to prepare or clean up.

Join Gary Wheeler and Lori Mans for an hour as they provide the ingredients and know-how to help you salvage your holiday stew, including 1/2 half dry cup Secret Santa, 2 - 3 jiggers holiday party(s) - adjust accordingly, 1 medium ugly sweater, 14 oz box decorations (workplace or workspace, depending on your preference), enough year-end bonus calculation to make your eyes water

My holiday stew was oyster stew that my Mom made for Christmas Eve. Never did learn why.

Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)

October 25th, 2018 by Deidra Nguyen at Littler Mendelson

As election season reaches full intensity (i.e., political ads have almost convinced you that no one is qualified to hold an elective office, let alone be a human being), Deidra Nguyen tells the story of election leave in this edition of Dear Littler:

What is the story with employee election leave? 

Disability/pregnancy practices – what not to practice

October 16th, 2018 by Robin Shea at Constangy

If nothing else, you want to read Robin Shea's blog because she makes a good in-context Kate Gosselin reference. Of course there is "else" which includes stuff you need to work through:

  • DON'T automatically terminate
  • DON'T automatically terminate (no, I DIDN'T stutter, there are two)
  • NO 100% recovered policy
  • "TEMPORARY" can mean a lot of things, like "disability" and "protected"
  • Medical exams/questionnaires – 10 words for you: STOP CHILDREN WHAT'S THAT SOUND EVERYBODY LOOK WHAT'S GOING DOWN.

There is also a picture that is not the Official "Grumpy Cat".

FMLA leave before being eligible for FMLA leave

October 24th, 2018 by Thomas E. Reddin and Henry J. Thomas at Polsinelli

Question: Does an employer have to offer FMLA to an employee – who was not eligible for FMLA at the start of her medical leave – when she reaches the 12-month, 1,250-hour requirement while out on leave? 

Answer: Could happen.

Question: Says who?

Answer: Thomas E. Reddin and Henry J. Thomas.

No call/no show shows. No what about it.

September 26th, 2018 by hrsimple

No call. No show. Assume they quit. Find a replacement. Move on.

Then who shows up but Ms. Nocall Noshow.

Now what?

Notice: notices and forms for FMLA that were already expired now updated virtually unchanged

September 7th, 2018 by Fiona Ong at Shawe Rosenthal

The DOL, FMLA and OMB walk into a bar.

FMLA: "Woe is me, my forms and notices expired on May 31, 2018."

DOL: "No problem, I'll just extend the expiration date month-to-month while we await OMB approval. I wish my husband had an expiration date!"

(canned laughter)

OMB: "Alright already, they are approved, essentially unchanged, and won't expire until August 31, 2021! Sheesh."

Bartender: "I better start using the new forms and notices now to avoid liability for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement promotion, or other relief tailored to the harm suffered."

(wink at camera)  

School-related parental leave does not mean you forge a note from your kid

September 4th, 2018 by Jason Plowman at Polsinelli

Ahhh, yes. Labor Day is now behind us and it is finally time to pack up our white pants and ship our kids off to school! As your staff prepares to wave good-bye to their young-ins, you should be prepared to wave hello to requests for school-related time off with help from your tutor, Jason Plowman at Polsinelli.

Round up stew: sick leave, harassment, non-compete, etc.

August 28th, 2018 by Shenna Harris at Squire Patton Boggs

Attention. Attention. The following jurisdictions had stuff change:


That is not all. Stuff will continue to change. That's life.*

*That's what people say, flying high in April, shot down in May.

PTO on the house!

May 22nd, 2019 by Kat Cunnignham, president of Moresource Inc.

Name a benefit that employees want, doesn't cost anything, reduces paperwork and can boost morale and productivity.

Paid time off.

But there are potential downsides and questions you need to ask (and more important, answer) before announcing this wonder benefit to your staff. Kat Cunningham, president of Moresources Inc. lays them out for you.

No FMLA for pet's death

October 24th, 2018 by Fiona W. Ong at Shawe Rosenthal

Fiona s dog

The Family and Medical Leave Act does not provide leave to care for an ill or dying pet. (Because a pet is not technically a family member. Really. Despite how we pet-owners feel about our fur babies. That’s mine in the picture.) But I also said that, “if an employee becomes depressed because of the death of a pet, it is possible that this could rise to the level of a disability that would require a reasonable accommodation under the Americans with Disabilities Act, or a serious health condition for which leave must be granted under the [Family and Medical Leave Act].” I further noted, however, that most people may experience grief but not become clinically depressed as the result of a pet’s death. So my interest was piqued by a recent case in which the employee claimed that his insomnia following his dog’s death was a serious health condition under the FMLA.

FMLA definitions

June 12th, 2018 by Nancy Van der Veer Holt at Ford Harrison LLP

FMLA coverage for employers

As with other employment-related statutes, the FMLA applies only to certain employers. Under the FMLA, an "employer" is:

  • any person engaged in commerce or in any industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, including:
    • any successor in interest of an employer
    • any person who acts, directly or indirectly, in the interest of an employer to any of the employer’s employees (NOTE: Several courts have concluded that supervisors can be held individually liable under this provision of the FMLA.)
  • any public agency.

The following entities are also covered by the FMLA:

FMLA - "leave" as in "leave the employee alone"

October 24th, 2018 by hrsimple


FMLA contains "leave", as in "the employee isn't at work" but also as in "leave the employee alone or else". See what the boundaries are to avoid the "or else" from one of our authors @Ogletree Deakins.

Paternity leave

June 12th, 2018 by hrsimple

Sometimes referred to as “family leave” or “parental leave”, paternity leave is an excused absence from work to care for and bond with a new child - whether by birth, adoption, or foster. This leave can vary in duration and may be paid or unpaid.

Are employers required to offer paternity leave?

Under the Family and Medical Leave Act (FMLA) employees of companies with a staff of 50 or larger are guaranteed twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth. This leave is job-protected leave meaning the employee must return to the same (or comparable) position and same wages upon completing leave. The FMLA also requires group health benefits to be maintained during the leave.

Does paternity leave need to be paid?

The FMLA does not provide for any pay during leave, and there are currently no federal paid paternity leave requirements in the United States - making it the only industrialized nation in the world that does not require paid time off for new parents.

However, 25 states have amended the FMLA further to provide for longer leave or lowering the minimum employer size to below 50. Four of these states . . .

Paid family leave: a growing trend

June 12th, 2018 by hrsimple

Legally mandated family leave policies have a relatively short history in the United States, and a requirement that the leave be paid is even shorter. In 1993, Congress enacted the Family and Medical Leave Act (FMLA) after finding that employees were having to choose between working and taking care of their family members. The purpose and goal of the FMLA is to assist employees in balancing work demands and family needs by providing eligible employees with 12 weeks of unpaid leave under certain circumstances and to promote equal employment opportunities by granting leaves on a gender-neutral basis. 

Though United States lags behind most of the world on paid family leave laws, these types of laws are quickly gaining ground. Much like the recent rise of paid sick leave and “ban-the-box” laws, this movement has begun on the city and state level. Here is a breakdown of some current state-mandated paid family leave laws: