Holiday Party Useful Tips to Consider

Some employers have moved away from holiday parties. However, many, including BS&W, continue to host holiday parties for employees, and some even continue to provide adult beverages at these parties. Below are some useful tips to consider if you do so.

Explain to management that they are “on duty”:

  • They must watch drinking and related behavior
  • Remember professional boundaries
  • No touching (preferably even when dancing)
  • Do not drive employees home after the party, regardless of how intoxicated they appear
  • Do not “after-party” with staff
  • “No” means no
  • Use the “mom test” (i.e. if you wouldn’t do/say it to your mom or in front of your mom, then don’t do/say it at the function.)

Remind employees that you want them to have fun, but:

  • Attendance is voluntary, but if they attend normal standards of conduct still apply
  • Misconduct at or after the party will lead to disciplinary action
  • Drink responsibly
  • “No” means no
  • No marijuana (even if they have a physician’s recommendation)
  • Encourage designated drivers or even provide free Uber or Lyft rides

For everyone:

  • Follow the “one wine, one water” rule (it is hard to get drunk if you drink a full glass or two of water between every alcoholic drink)
  • No dirty dancing
  • No sleep-overs after the party (or couch surfing)
  • And for goodness sake, please don’t hang mistletoe!

Be Very Careful What You Say to an Employee About FMLA Leave: You May Create a Claim That Otherwise Would Not Have Existed.

We all know that the in addition to requiring an employer to provide unpaid leave for up to twelve (12) workweeks and reinstatement upon return, the FMLA also prohibits an employer from interfering with an employee’s exercise of their rights under the FMLA. In order to be eligible for the protections of this Federal law, an employee must generally have worked for the employer for twelve months and 1,250 hours. However, employers can easily say or do things that can create an FMLA claim by employees who would ordinarily not be eligible for the protections of the Act.

By way of example; on January 25, 2017, Brillion Rest Home hired Angel Reif as an Administrator. In December of 2017, Ms. Reif informed her employer that her physician recommended that she have surgery to repair an old leg injury. Brillion’s HR Director informed Ms. Reif that although she would not be eligible for FMLA until January 25, 2018, it would be more convenient for Brillion if Ms. Reif would go ahead and have her surgery as soon as possible. The HR Director told Ms. Reif that “she should not worry about taking leave before January 25, I’m sure that it will be approved.”

In reliance upon the HR Director’s representations, Ms. Reif scheduled the surgery for January 10, 2018 and filled out the appropriate paperwork to secure time off for the procedure. Unfortunately, Brillion chose to deny Ms. Reif’s request for leave, indicating that she was not yet eligible to take FMLA leave. Ms. Reif had the surgery anyway and Brillion terminated her employment due to her absence from work.

As you might expect, Ms. Reif sued, arguing that Brillion interfered with her FMLA rights and discriminated against her because she took FMLA leave.

Brillion responded that Ms. Reif was not covered by the FMLA because she had not worked for Brillion for twelve months at the time that she took off, and thus, her claims should be dismissed.

The Court issued a common sense ruling denying Brillion’s Motion to Dismiss. In denying the Motion , the District Court judge noted that the employer “would be on solid ground as far as the FMLA is concerned if Reif had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave.” But the judge noted that, according to the allegations, that is not what happened, and if Reif’s allegations turned out to be true, “It would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.

While the FMLA provides us with very clear eligibility criteria (at least fifty employee, 75 mile radius, 12 months and 1,250 hours), these criteria can always modified by an employer in an employee’s favor. And, as the Brillion opinion shows, this modification need not be formal, universal or even intentional. An errant word or off-the-cuff remark from the wrong person can amount to a change in company policy upon which the employee may rely. In this case, the fact that the Brillion’s HR Director lead Ms. Reaf to believe that Brillion wanted her to take FMLA leave immediately, rather than waiting until she was “technically” qualified.

An even broader take away from this case is that it is very easy to get caught up in the legal minutia of employment related laws and regulations and to lose sight of the big picture. Will what we are doing strike the average person as egregiously unfair? If the answer is yes, judges and juries will quite often bend over backwards to find us liable, regardless of whether we are technically within our legal rights or not.

Ms. Reif’s case is still winding its way through the court system, and Brillion may eventually prevail. But if they do, it will be at significant expense. How much better off would Brillion be if their HR Director had not made an offhand statement that she could not back up, or if she had done what she said she was going to do and ensured that Ms. Reif was allowed FMLA leave despite the fact that she was a few weeks short of being technically eligible?

After a Nine Year Hiatus, the DOL Issues Two New FMLA Opinion Letters

The Department of Labor last issued an FMLA opinion letter in January of 2009, that is, until August 28, 2018, the day that the DOL issued two new Opinion letters dealing with the FMLA. As we have discussed in the past, when a regulatory agency issues an Opinion Letter or Guidance, it behooves us to take heed. They are the agencies’ way of telling us how they are going to construe the laws that they enforce. And, although such Letters and Guidance are not binging on civil courts, the courts often refer to them in their opinions.

FMLA20180-1-A – Organ Donor Leave:   In FMLA2018-1-A, the DOL stated that an otherwise healthy employee that chooses to donate an organ may be entitled to FMLA leave if the procedure and resulting recovery qualify as a  a Serious Health Condition. If the procedure and recovery do not meet the definition of a Serious Health Condition, the leave would probably not be covered by the FMLA. The fact that the procedure is voluntary is not relevant to the FMLA-qualification analysis.  As with most FMLA determinations, this requires a case-by-case analysis.

FMLA2018-2-A – Application of Disciplinary Point Systems to Employees on FMLA Leave:   In FMLA2018-2-A, the DOL addressed an employer’s no-fault attendance policy that suspends or “locks in” an employee’s disciplinary points while on FMLA leave. Under this policy, points rolled off every twelve months.  However, the employer locked in the points while its employees were out on any type of “protected” leave, such as FMLA, workers compensation, pregnancy, ADA…… The DOL stated that point reduction is a reward for working, and thus a benefit to which an employee on FMLA leave might not be entitled – as long as employees on other types of leave are treated the same.

This should give employers an additional tool to prevent employees who have almost accumulated a “terminal” number of points from taking FMLA leave in an attempt to allow some of their points to roll off whilst they are on leave. Keep in mind that the DOL’s blessing of this type of policy is based upon the fact that all types of protected leaves are treated similarly.

Don’t hesitate to contact me directly if you have questions concerning these or any other issues.

Does Your Last-Chance Agreement Contain A Prospective Waiver? It Probably Shouldn’t

As part of a progressive disciplinary process, we sometimes require employees to sign a document in which the employee acknowledges his past deficiencies and the fact that if his performance does not measurably improve, his employment will be terminated. (A “Last Chance Agreement”, because this is his last chance…..). There is nothing inherently illegal or wrong with an LCA, and they can be useful tools, both in an attempt to rehabilitate the employee and as proof that the employee was fully aware of the true reasons for his termination, if a termination occurs.

However, employers sometimes give in to the temptation to overreach in an LCA and include waivers of potential employment-related claims. That is precisely what got the Department of Veterans Affairs in hot water in Illinois a couple of months ago. The facts are as follows:

Mr. Lester, a sixty year old African American male worked for the Department of Veterans Affairs. Mr. Lester filed a race discrimination claim against the Department. As part of a mediated settlement, Mr. Lester was transferred to new location and required to sign an LCA. The LCA contained a provision that required Mr. Lester to waive all future claims that he may have against the Department. Shortly after his transfer the Department fired Mr. Lester. (Smells a little fishy?)

As one would expect, Mr. Lester sued the Department, claiming in part that the provision requiring the waiver of future claims constituted a materially adverse action that would dissuade a reasonable person from engaging in protected activity and, as such, constituted unlawful retaliation against Mr. Lester for filing a claim of discrimination against the Department. (The logic being-if a worker filed a claim of discrimination, the department would force you to either waive all future claims as part of the LCA or else be fired, thus reducing workers’ propensity to file complaints in the first place.)

The take-away from this case is:  We should be extremely cautious in presenting employees with waivers that require them to waive or release future claims or causes of action. When I say “extremely cautious,” I mean don’t do it. Waiving claims arising out of past conduct is probably OK, but waiving claims arising out of as-yet-to-occur, future conduct is probably not enforceable and may well give rise to a retaliation suit, as the Department of Veterans Affairs learned.

Did You Know That Louisiana Law Treats Employees and Independent Contractors Differently?

I was in state court this week, the 19th Judicial District to be precise, arguing an often-overlooked provision of our non-compete statute. The opposing party, let’s refer to them as “Overreaching, Money-Grubbying Bully” or OMGB for short, was attempting to enforce a non-compete agreement against my client, who we will call “Winner.” Specifically, OMGB claimed that my client was in violation of the agreement because he began to solicit customers of OMGB immediately after his services as an independent contractor had been terminated.

We argued successfully that while our non-compete statute allows an employer and employee to agree that an employee will not: 1) engage in business similar to that of her employer or 2) solicit customers of her employer after her employment ceases, on its face the statute only allows an independent contractor to agree that she will not: 1) engage in business similar to that of the party with whom she has contracted. The statute contains no language that would allow an independent contractor to be prevented from soliciting customers of the party with whom she has contracted.

In this instance, my client was not engaging in a competing business in any prohibited parishes, she was merely soliciting customers of the party with whom she had contracted. Although I believe that the difference in the language of the statute as it applies to employees and an independent contractors was due to legislative oversight (perish the thought) rather than intent, the difference is nonetheless there. So, if you are drafting a non-compete agreement between your company and an independent contractor, remember that while you can prohibit them from engaging in competition with you, you probably cannot prevent them from soliciting your employees.


Logic Prevails At The NLRB! Some Common Sense HR Policies Are Legal Once Again!

You may recall that in the last year of the Obama administration the National Labor Relations Board issued a Memorandum declaring that a number of what most of us consider to be common sense HR policies were “presumed illegal” because they could have a “chilling effect” on employees’ Section 7 rights.

On Wednesday the NLRB reversed itself and issued a Memorandum stating that nine of these standard HR policies will now be “presumed lawful.” This Memorandum will require some employers to modify their Handbooks; for others, only the application of their existing policies will change. In both instances, the changes will be to the benefit of employers. I have provided a brief summary of the new “presumed lawful” policies for your perusal as well as a couple that are still presumptively unlawful. Continue reading “Logic Prevails At The NLRB! Some Common Sense HR Policies Are Legal Once Again!”

The Perfect Storm: A Convergence of Unpaid Rest Breaks, the FLSA and the FMLA

As most HR professionals are aware, the Fair Labor Standards Act (FLSA) requires that non-exempt employee be paid for rest breaks of up to 20 minutes. Contrary to the common misperception that the Act requires employers to allow two paid breaks per shift, in most industries, it actually does not mandate any certain minimum or maximum number of paid breaks per shift.beverage break breakfast caffeine

Conversely, the Family and Medical Leave Act (FMLA) require employers to allow employees short breaks when certified as necessary by a health care provider. Unless the employer specifies otherwise, FMLA breaks are usually unpaid.

You see the inherent conflict set up between the FLSA (you must pay for short breaks) and the FMLA (FMLA leave is generally not compensable working time). For example, if an employer allows its employees to take three paid, fifteen minute beaks per day, can it not pay an employee for taking one, fifteen minute FMLA-qualified break per day without violating the FMLA or FLSA? Will this constitute retaliation or interference under the FMLA?

Continue reading “The Perfect Storm: A Convergence of Unpaid Rest Breaks, the FLSA and the FMLA”