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| HR and the Law in the News April 2010, Volume 9, Issue 4 |
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| HR and the Law in the News April 2010, Volume 9, Issue 4 |
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Family Responsibilities Discrimination: What Is It? There is currently no federal law that expressly or specifically prohibits Family Responsibilities Discrimination (FRD). There are, however, a number of laws that may apply when an employer takes adverse employment action (decides to not hire or promote; issues corrective action; etc.) based upon an applicant's or employee's need to take time off from work due to family responsibilities. Examples may include an employer's maternity leave policy that provides certain leave only for women; a manager deciding to not hire or promote an individual because s/he needs to provide care to a friend or family member with a disability (ADA's association provision) or a serious health condition (federal and state FMLA claims); not hiring or promoting a male employee who expresses a desire to share caregiving responsibilities with his spouse (gender stereotyping under Title VII). A number of reports have recently been published related to FRD. Workplace Flexibility 2010 is a public policy initiative at Georgetown Law, which recently published, "Public Policy Platform on Flexible Work Arrangements." The Initiative seeks to develop a range of public policy solutions on workplace flexibility that work for both employers and employees. I had the honor and pleasure of meetings with some representatives from this initiative and SHRM several months ago. The Center for Worklife Law also recently published a report on this topic, "Family Responsibilities Discrimination: Litigation Update 2010." The report contains some interesting data of which employers should take note:
Also interesting is the fact that this phenomenon is not new. In 2007 the U.S. EEOC held public hearings, private meetings (at which I again had the honor and privilege of attending at the invitation of SHRM) and published "Best Practices" and Guidance for employers addressing ways to manage employees' need for flexible work schedules. Even Congress is in on the Act with H.R. 4855, Work-Life Balance Award Act, which proposes to recognize on an annual basis exemplary employers that provide their employees the ability to achieve a work-life balance. So What Now?
What Else? Join this month's webcast on April 28th from 10:00 - 11:00 a.m. EST, "Family Responsibilities" Balancing Employers' and Employees' Needs." Click here and then click on the "Upcoming" tab for more information or to register (still just $35 per person). Hot Hits!! Education Corner April's Public Seminars & Presentations Presented by Christine V. Walters, MAS, JD, SPHR Friday, April 9th, "Employment Issues for Small (and Large) Business" presented for the Taneytown Business Breakfast. Taneytown, MD 8:00 - 9:00 a.m. Thursday, April 15th, "Employment Law, Legislative & Regulatory Update," presented for the HoCoHRS, (pre-approved by HRCI for strategic credit) Columbia, MD 8:30 a.m. - 10:30 a.m. Wednesday, April 21st, "HR Metrics for Strategic Business Planning," sponsored by the Bux-Mont HRA, (pending HRCI approval for strategic credit) Telford, PA, 9:00 - 11:00 a.m. Monday, April 26th, "Whoops! Avoiding Legal Liability in Your Staffing Process," presented during SHRM's 2010 Staffing Management Conference, Buena Vista, FL. 1:15 - 2:30 p.m. Tuesday, April 27th, "Are You My Employer? Managing Your Contingent Workforce" presented during SHRM's 2010 Staffing Management Conference, Buena Vista, FL. 10:15 - Noon SNEAK PEEK! June 1st, "HR and the Law for Maryland Employers" - public seminar, Owings Mills, MD 8:00 - 4:30 p.m. Don't Delay. Register today. Both Programs in 2009 Sold Out in Advance! April's Client Training Programs "Maintaining an Inclusive Workplace" (2 Modules: On -Demand, Web-Based) NEXT WEBCAST! April 28, 2010 10:00 - 11:00 a.m. EST "Family Responsibilities: Balancing Employer & Employee Needs" Join this interactive webcast as we review the latest research, legislation and case law addressing workplace flexibility and employees' need for time off from work to attend to family responsibilities. Learn ways to enhance compliance and proactively review, develop and update related policies, programs and practices. Click here (then click on "Upcoming" tab) for more information or to register. This webcast is pre-approved by HRCI for 1.0 general credit hour 2010 Annual Subscriptions are still available! Subscribe for the year (8 remaining webcasts) for the price of 6! Get TWO FREE! Click here to register.
FMLA's Serious Health Condition: Says Who? If your company employed at least 50 employees for 20 or more weeks in 2009 then you are likely a covered employer under the federal Family and Medical Leave Act (FMLA). As such, you know that FMLA provides up to 12 work weeks of job protected leave for a variety of reasons including to an employee who has a "serious health condition" for more than three consecutive days. But who determines what a serious health condition is? If you have administered FMLA leave you know the federal regulations and U.S. Department of Labor provide a very specific notice that employers must give to an employee to obtain medical certification from a health care provider. But what if the employee self-diagnoses? What if the employee tells you that s/he has a serious health condition or needs more time off from work than the employee's physician indicated? Is that sufficient notice to bring the employee under the protection of the FMLA? The 3rd U.S. Circuit Court of Appeals (covering NJ, PA, DE and the U.S. Virgin Islands) recently ruled that the answer could be, "Yes!" Here's the scenario. An employee was treated by her physician (who was also employed by the same employer) and given an antibiotic which he expected to eliminate her symptoms after a day or two. He wrote a note that excused the employee from work for two consecutive days, which the employee taped to her supervisor's office door and then left work. Less than two weeks later the employee was fired for unsatisfactory work performance as well as for failing to follow the company's policy of calling in regarding her absence. The employee had received prior notices of corrective action for her work performance including a suspension and notice that "failure to improve would lead to disciplinary action and/or termination." The employee then sued for violation of the FMLA. The lower court found in favor of the employer holding that, "expert medical testimony is necessary to establish that the incapacity was due to illness." On appeal, the 3rd Circuit reversed the opinion of the lower court. The court recognized that while district courts have held differently, all circuit courts that have addressed this issue have held that "lay testimony can create a genuine issue of material fact regarding incapacitation." Lessons Learned? When in doubt get more information. If an employee provides information that is contrary to medical certification you have received, ask for clarification. Under the FMLA, an employer is permitted to request clarification of medical information if the original is unclear or circumstances have changed. Such a request cannot, however, be made by the employee's supervisor; it should be made by someone outside the employee's chain of command such as through a human resources representative. Conduct a proper investigation and look into the matter before making an adverse employment decision. 5-3-30! Are you looking for in-person programs, seminars or conferences on HR-related topics? If so, visit FiveL Company's Calendar of Events to find upcoming, public speaking engagements sponsored by various professional and trade associations. This month Ms. Walters has five speaking engagements booked in three states in 30 days! It's Here! On-Demand Training Now, FiveL Company can provide clients with on-demand, web-based training programs for staff and managers. Save the time and costs related to on-site training programs. Make training programs more accessible to your staff and management team members. Programs may include:
To view a sample program (7 minutes) click here! Then click "Recorded Sessions on the left and "SAMPLE Inclusive Workplace Training." Contact FiveL Company for pricing and more information. Enjoy! This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.
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Use of this seal is not an endorsement by HRCI of the quality of the program. It means that this program has met HRCI's criteria to be pre-approved for recertification credit.