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12 tips to comply with FMLA

BY Allen Smith

Family and Medical Leave Act (FMLA) compliance is difficult and annoying, said Mark Oberti, an attorney with Oberti Sullivan LLP in Houston, at the National Employment Law Institute’s Annual Employment Law Conference in Arlington, Va., Nov. 16, 2012.

The U.S. Department of Labor’s FMLA regulations often aren’t much help, as they rarely make it clear when an employer may fire someone, he added.

Oberti outlined 12 compliance strategies for employers:

• When in doubt, send the employee the notice of eligibility and rights.

• Provide written notice of approval or disapproval of FMLA leave to the employee.

• Have a specific, formal policy to request leave, and adopt and enforce a call-in policy. Be reasonable about enforcing the policy, he cautioned. For example, cut employees some slack if they call in to their supervisors, instead of HR, even if the policy provides that they call HR.

• Be extremely cautious about terminating employees on FMLA leave.

• Train managers on FMLA basics. Uninformed managers may complain that they don’t want to return a difficult employee to his or her job or an equivalent position.

• Don’t even bother with the option to reinstate a returning employee to an “equivalent position.” Return an employee to the same job if it still exists, Oberti suggested.

• Invoke the employer’s rights in intermittent leave situations with caution. An employer can’t ask for certification of fitness to return to duty for each absence on an intermittent schedule. It can request fitness-for-duty certifications up to once every 30 days if reasonable safety concerns exist about the worker’s ability to perform duties, based on the serious health condition for which leave was taken. Be careful, as the job safety provision is very narrow, Oberti emphasized.

• Select your 12-month FMLA period in writing. If an employer doesn’t designate in written materials available to employees which leave-year option it has selected, the employer can’t later pick the method most advantageous to it. Instead, courts will apply the most advantageous method for the plaintiff, as required by FMLA regulations (see 29 CFR § 825.200(e) and Thom v. American Standard Inc., 666 F.3d 968 (6th Cir. 2012)).

• Do not fire workers employed just shy of a year to try to avoid giving them FMLA leave. Oberti cited an 11th Circuit decision that a pre-eligible FMLA request for post-eligible maternity leave is protected activity (Pereda v. Brookdale Senior Living Communities Inc., 666 F.3d 1269 (11th Cir. 2012)).

• Do a thorough “FMLA scrub” before each termination. Check attendance records and confirm with the manager whether the person up for termination is on FMLA leave currently or has been on it recently. Review recent performance evaluations or warnings to see if any absence that might be FMLA leave is mentioned as a reason for termination or discipline. Ensure the termination is not in retaliation for the employee’s exercise of FMLA rights.

• Don’t forget about the FMLA’s prohibition on retaliating against those exercising their rights under the law.

• Finally, appoint an FMLA leave “czar” — someone tasked with doing an FMLA scrub for every termination to make sure the employer is compliant. Because the FMLA has individual liability — where supervisors can be held personally liable for violations — “Pick someone you don’t like” to be the “czar,” Oberti joked.

Allen Smith, J.D., is manager, workplace law content, for SHRM.

©2012 SHRM. All rights reserved.

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and SHRM. 

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Merillat Cabinetry responds to white trend

BY Ken Clark

Ann Arbor, Mich.-based Merillat Cabinetry launched a Merillat Classic line, described as new solutions to meet the hottest must-haves — white kitchens, universal design and the need for budget-conscious options.

“Merillat works closely with consumers and professionals to provide beautiful options that meet the most sought-after design and functionality needs,” said Sarah Reep, director of designer relations and education for Merillat. “This launch reflects trends that are here to stay — an important factor in any kitchen and bath remodel.” 

White kitchens continue to grow in popularity. Merillat’s new Cotton paint finish is an on-trend, bright white paint that serves as the perfect backdrop to colorful accents and a complement to a wide range of appliance finishes, floor treatments and countertop materials. The new Cotton finish is available on select Maple door styles.

“Today’s families are looking for fresh, bright and inviting spaces,” said Reep. “After years of economic hardship, a trend toward clean white lines speaks to a feeling of optimism.”

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Unemployment rate slips to 7.7%

BY Ken Clark

The November unemployment rate released this morning declined from 7.9% to 7.7% as more people stopped looking for work, the Labor Department said. 

The mixed bag of data showed that the U.S. economy added 146,000 jobs in November — that’s below the average of 151,000 per month since the beginning of this year. 

In November, employment rose in retail trade, professional and business services, and health care. Employment in construction fields dropped 20,000. Much of the loss in construction occurred in construction of buildings (down 11,000). Since early 2010, employment in construction has shown no clear trend, according to the bureau.

The Labor Department also said the months of October and September added fewer jobs — 49,000 fewer jobs — than originally estimated.

Retail trade employment rose by 53,000 in November and has increased by 140,000 over the past three months.

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