Milwaukee Employment Law Attorneys Blog | Wisconsin Employee Rights Lawyer | Waukesha Family Medical Leave Act Law Firm

DOL proposes FMLA rule changes, concl.

2012-02-21T21:44:17Z

We are wrapping up our series of posts about some recently proposed rule changes issued by the U.S. Department of Labor. To get an idea of how long it takes to turn an act of Congress into regulations, some of these proposed rules are changes to the federal Family and Medical Leave Act that were part of the National Defense Authorization Act for 2010. As we said before, it is important to remember that these proposals apply only to the federal law, not the Wisconsin FMLA.

We have discussed the proposed rules that address administrative procedures and mid-shift reinstatement, as well as proposed changes to military family leave for active-duty members of the Armed Forces. In this post, we are moving on to the rules that would affect military family leave for veterans.

]]> Veterans. The law limits eligibility to families of veterans who have been discharged in the past five years. The injury need not have been sustained in the line of duty; veterans whose pre-existing injuries (or illnesses) were aggravated during active duty are also covered by the law.

What makes this provision tricky is that the DOL has yet to define what injuries and illnesses are covered by the law. The agency will issue another proposed rule in the future that will clarify the term. Until then, employers may choose to grant leave requests for caregivers of veterans but that leave will not be covered by the FMLA.

Together, these posts offer a broad overview of the proposed changes. These rules will not become final until the comment period concludes and the agency has had a chance to consider the feedback.

Source: U.S. Department of Labor Wage and Hour Division, "Notice of Proposed Rulemaking: The Family and Medical Leave Act," Federal Register, Vo.. 77, No. 31, Feb. 15, 2012

DOL proposes FMLA rule changes, cont.

2012-02-19T01:39:51Z

We are continuing our discussion of proposed rules from the U.S. Department of Labor. The proposals would amend the federal Family and Medical Leave Act in accordance with the National Defense Authorization Act for 2010 and other laws. It is important to remember that these proposed rules will not affect the Wisconsin FMLA.

In our last post, we discussed a change to the way employers track FMLA leave and the DOL's clarification of mid-shift reinstatement. The last category of proposals addresses the role of the FMLA in the military.

]]> The National Defense Authorization Act extended FMLA leave to family members of active-duty armed forces personnel. The act also extended FMLA military caregiver leave to family members of veterans with serious injuries or illnesses. Prior to this amendment, only caregivers of National Guard and Reserve servicemembers were covered under the FMLA.

Active-duty personnel. Under the rule, FMLA military family leave would only apply to service members who have been deployed to a foreign country. The same would be true for members of the Reserves.

Currently, a caregiver may take up to five days of military family leave to be with a member of the military who is on rest and recuperation leave during a deployment. These leaves must be part of an official military Rest and Recuperation leave program. The proposed rule would change the limit from five to 15 days. The number of days is not discretionary, though; it must equal the number of days of R&R granted the servicemember.

We will discuss the proposed rule for veterans in our next post.

Source: U.S. Department of Labor Wage and Hour Division, "Notice of Proposed Rulemaking: The Family and Medical Leave Act," Federal Register, Vo.. 77, No. 31, Feb. 15, 2012

DOL proposes FMLA rule changes

2012-02-13T18:17:40Z

The U.S. Department of Labor has proposed a few changes to the Family and Medical Leave Act that, if approved, will have an impact on workers in Wisconsin. These proposed rules will only change the federal law; the Wisconsin FMLA will not be affected. The public comment period on the new language closes at the end of March.

The changes fall into three broad categories: FMLA administration, worker reinstatement and military leave. All will affect both employee and employer.

]]> The administrative change is actually a return to a 2009 rule. Employers would have to track FMLA leave in the smallest increments that their payroll systems use to track employee hours. If payroll is based on 15-minute periods, FMLA leave will also be. Currently, FMLA leave is calculated the same way vacation or sick time is calculated -- by the hour or by the half-day.

There has been a lot of confusion, it seems, about a particular reinstatement rule: the "physical impossibility" provision. In some jobs, it is physically impossible for a worker to complete a full shift after a few hours of leave; the rule allows employers to dock the worker for a full shift in those circumstances.

The typical example is a flight attendant who takes four hours of leave to deal with a family emergency. When the flight attendant arrives at work, his assigned flight has left. The airline says it is "physically impossible" for him to return to work that day.

According to the DOL, employers have been interpreting the rule too broadly. The proposed rule clarifies that "physically impossible" does not mean "inconvenient." The employee may return to his position or an equivalent job.

We'll cover the third category, military leave, in our next post.

Source: HRMorning.com, "FMLA changes: 3 things you need to know," Christian Schappel, Feb. 7, 2012

Budget cuts will not interfere with EEOC's work

2012-02-10T21:08:19Z

In our last post, we discussed the record number of claims that the Equal Employment Opportunity Commission handled last year. According to the recently released draft strategic plan, budget cuts will not undermine the commission's investigation and enforcement of workplace discrimination claims any time soon.

Over the past couple of years, the EEOC has focused on systemic discrimination. The draft plan indicates that this will not change. Systemic discrimination occurs when an employer engages, consciously or unwittingly, in a discriminatory pattern of hiring or applicant screening.

]]> A recent example is the Pepsi Beverages case. The EEOC discovered that the company's old criminal background check policy discriminated against African Americans. The company settled the case not only by paying a $3.13 million fine, but by offering jobs and training to people who were affected by the policy.

Budget cuts have fostered some procedural changes for the agency. The agency has adopted a "holistic" approach to investigations and enforcement actions. The objective is to streamline the process by ending the separation of the investigation and conciliation stages from the litigation stage.

The draft plan also addresses providing "targeted, equitable relief" (the EEOC's term) for victims of discrimination. Part of this step entails expanding the scope of relief from the individual complainant to "all employees and job seekers."

Employers are apprehensive about the new plan. According to one commentator, the changes likely mean more paperwork for employers and more risk for large employers, the companies that have the deepest pockets.

The term "targeted, equitable relief" is particularly puzzling to that commentator. Rumor has it, he says, that the EEOC will require supervisor training and, perhaps, external monitoring of employment policies and procedures. The plan itself is silent on the specifics.

Source: HRMorning.com, "The hidden messages in EEOC's 'official' agenda," Tim Gould, Feb. 10, 2012

EEOC: Retaliation tops list in discrimination charges

2012-02-06T20:07:34Z

The Equal Employment Opportunity Commission reports that the agency received a record number of discrimination charges in 2011. Once again, charges of retaliation were the most common, with race discrimination charges a close second.

While we note that Wisconsin data for 2010 mirrors this trend, the report includes only nationwide data. The EEOC enforces federal laws. State agencies enforce complaints made under state statutes, like the Wisconsin Fair Employment Act.

]]> The federal laws include Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Family and Medical Leave Act, and each has a rule against retaliation. Employers may not take an adverse employment action -- such as termination, suspension or demotion -- against an employee if that employee complains of discrimination, acts as a witness in an investigation or files a charge with the EEOC.

The U.S. Supreme Court has added a few protected activities of its own. An employer cannot retaliate against a person who is in a close relationship with another worker involved in a protected activity like those listed above. And, the Court says the FLSA covers both oral and written complaints, even if made to the employer.

It is important to remember that a retaliation claim must be based on a protected activity; after that, the processes diverge. The investigation and adjudication of the two claims are separate, and the outcome of one does not have any bearing on the outcome of the other.

Say an employee files a sexual harassment complaint and two weeks later loses her job. Her boss says she hasn't been meeting her production goals, so she has to go. She knows the records show that she has surpassed those goals every day for the last year, so she files a retaliation claim.

The investigations are unrelated. If the EEOC finds that the bad behavior didn't rise to the level of sexual harassment, that claim is dismissed. The retaliation investigation continues, though, because the two incidents occurred at different times for different reasons and were (alleged) violations of two different laws.

The total number of charges in 2011 was 99,947. More than 37 percent were for retaliation; race discrimination accounted for more than 35 percent. Both race and gender discrimination charges decreased from 2010. Disability and age discrimination charges, however, increased.

Alan Olson writes this web-log to provide helpful information regarding employment law cases. He practices employment law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at AOlson@Employee-Advocates.com with questions about the information posted here or for advice on specific retaliation claims.

Sources

EEOC, "Private Sector Bias Charges Hit All-Time High," Jan. 25, 2012

HR.BLR.com, "Retaliation Leads the Way in Workplace Discrimination," Joan S. Farrell, J.D., Jan. 31, 2012

Should you report misconduct in the work place? Probably.

2012-02-03T18:03:17Z

Did you know that 20 percent of employees report that they have been the victim of retaliation for reporting improper behavior on the job? As many Wisconsin residents know, it is against the law for an employer to fire an employee in retaliation against a worker's expressed complaint or concern. A recent article discusses the latest reports about discrimination in the workplace.

According to the article, retaliation is on the rise. A whopping 8.8 million people experienced retaliation from 2009-2011. Furthermore, the instances of revenge range from exclusion at the workplace to harassment or physical harm. However, even if these statistics scare you, you should know that keeping your mouth shut is not always a good idea.

]]> A number of University employees saw serious repercussions for not reporting misconduct in the workplace. Therefore, reporting seems like a better option than tolerating transgressions at work. Also, a source reports that new law from the Securities and Exchange Commission will go into effect this summer. It will actually reward whistle-blowers for reporting misconduct.

Research shows that there was a difference between people who complained about a predicament to their manager in comparison to workers who filed reports with outside agencies. When employees conveyed a problem to their bosses, retaliation numbers were higher. On the other hand, when complaints were filed with the Equal Employment Opportunity Commission (EEOC), workers were rarely abused by their employers.

It is hard to tattle on an employer or manager for work-related mishaps. Nevertheless, you do not have to tolerate misconduct. A civil rights attorney explains, "If the truth is on your side, with the right evidence, these [cases] are among the easiest to win."

Source: Forbes, "Workplace snitching: if you see something, should you say something?" Meghan Casserley, Jan. 26, 2012

Federal court confirms severe obesity is a disability, cont.

2012-02-02T20:53:08Z

We are continuing our discussion of a recent employment law case. A federal court decided the case in favor of the employee, agreeing that severe obesity qualifies as a disability under the Americans with Disabilities Act. The Equal Employment Opportunity Commission took up the case after the claimant's death.

The employee was obese when the company hired her, and she gained weight during her tenure. Nevertheless, she received stellar performance evaluations. It came as a surpise when, about a year later, the employer fired her. The company said her "limited mobility" had become an issue, and it expressed some concern that, if the occasion arose, she would not be able to perform CPR on the children in her care.

]]> For the employer, the case hinged on why obesity would be classified as a disability. The company said -- as other companies have said before -- that obesity can only be considered a disability if it is caused by an underlying medical condition.

The ADA specifically defines impairment as follows:

[A]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.

Because the obesity was not caused by any physiological disorder, the company said, the employee should not prevail.

The EEOC argued that the law does not address obesity specifically; as a result, the EEOC was left to determine if weight -- a physical characteristic -- would be a disability.

And so it did. In EEOC guidance documents, overweight does not qualify, but severe obesity does.

If the parties do not settle, the case will go to trial.

Source: HRMorning.com, "Severe obesity as a disability: New ADA trend?" Dan Wisniewski, Dec. 29, 2011

Will I Receive Unemployment? I was Fired for my Behavior Outside of Work.

2012-01-31T18:42:59Z

Employers often have rules that extend beyond the walls of the office or factory and intrude on the outside lives of their employees. Some of the most common policies are those regulating illegal drug use both at work and outside of work. Some of the most controversial policies are those regulating the ingestion of unhealthy, but otherwise legal substances, including alcohol and tobacco off work premises. Other "outside of work rules" that some employers seek to impose are social networking regulations and residency requirements for municipal workers.

Many employees view employer rules that seek to limit them outside of work a violation of their basic liberties, take offense to such rules, and simply refuse to comply with such restrictions. When an employer fires a worker because of a violation of arguably overreaching policies or determines that the worker voluntarily terminated employment by refusing to comply with these rules, an employee should pursue their unemployment insurance benefits as they otherwise would.

The employer has the burden to establish that its work rule governing off-duty conduct is reasonable. Gregory v. Anderson, 14 Wis. 2d 130 (1961). "The reasonableness of such a rule must be tested as of the time of its adoption. It is a reasonable rule if violation is reasonably likely to harm the employer's business interests." Gregory at 138.

Residency requirement for municipal employees are constitutional and legally permissible. Eastman v. City of Madison, 117 Wis. 2d 106 (App. 1983). Some residency requirements may even be legitimately adopted as city ordinances. However, if a residency policy is not embodied in a collective bargaining agreement or a city ordinance, and the employer fails to present evidence regarding why it was reasonable to restrict where the employee could live and why violation of its policy was likely to harm its interests, unemployment benefits are awarded to the employee. Other rules are subject to the same analysis. Is restricting an employee from drinking beer on the weekends likely to protect the employer's business interests? Probably not.

Attorney Nicholas M. McLeod is an associate attorney at Alan C. Olson & Associates, S.C. If you have questions about unemployment insurance, please contact him at: nmcleod@employee-advocates.com

Federal court confirms severe obesity is a disability

2012-01-30T16:18:59Z

Technology is not always our friend, especially when it comes to physical activity. Parents everywhere say their kids spend more time texting or playing computer games than they do getting fresh air and exercise. Parents aren't immune, either. According to the U.S. Centers for Disease Control and Prevention, the obesity rate for adults has more than doubled over the past 20 years. In Wisconsin, more than 26 percent of adults are obese.

A federal court recently confirmed that severe obesity qualifies as a disability under the Americans with Disabilities Act. A person who is severely obese weighs more than twice as much as the norm.

]]> The court made the ruling in a case brought by an ex-employee of a company that worked with young children whose mothers were undergoing treatment for addiction. When the woman started the job, she weighed more than 400 pounds. During her time with the company, her weight increased to more than 525 pounds.

Nonetheless, she was a stellar employee. According to her performance evaluation, the quality of her work was "excellent."

She was fired about a year later. The issues cited were "limited mobility" and whether she would be able to administer CPR. Believing that she was fired in violation of the Americans with Disabilities Act, she filed a complaint with the Equal Employment Opportunity Commission.

The EEOC took the case to trial after the woman died. Her death was reportedly related to her weight.

We will continue this in our next post, with a discussion of each party's definition of "impairment" under the ADA.

Source: HRMorning.com, "Severe obesity as a disability: New ADA trend?" Dan Wisniewski, Dec. 29, 2011

Disability benefits appeal denied despite primary MD's report p5

2012-01-27T15:43:34Z

We are finishing up our discussion of an 8th Circuit case that highlights the complexities of insurance companies' benefits decisions. Each decision is based on the opinions of a number of professionals, including the treating physician(s). The plan in this case defined two long-term disability benefit periods: In the first 24 months, the claimant cannot perform his own job; after that, he cannot perform any job.

The insurance company denied benefits after the first 24 months. The claimant's treating physician had said he was unable to work at any job, but the insurance company's reviewing physician thought otherwise. The reviewing doctor's opinion, however, was based in part on a misreading of the record. The claimant appealed.

]]> The appellate court found that the insurance company's process was thorough, regardless of the differences of opinion of the doctors. When the claimant's physician sent letters attempting to correct the insurance company's reading of something, the insurer reviewed the information. It seems that, as long as the company was fair, it didn't have to be right.

Finally, the claimant argued that the same medical information qualified him for Social Security disability benefits, so he should likewise qualify for LTD benefits. The court disagreed. The employee plan and the government plan were not related to one another, and the SSD decision held no sway over the plan.

We understand that this has been a long explanation, but we wanted to use a real-life case to illustrate a few points. First, in an LTD claim, the insurance company generally controls the purse strings. Second, the process is complicated. Third, courts allow insurance companies "considerable discretion" (the court's words) in benefit decisions, and that can end up costing the claimant his benefits.

When you're busy coping with a health crisis, you want help navigating the LTD and SSD systems. As this case shows, not crossing a "t" or missing the dot on an "I" can justify an insurer's rejection of the claim.

Alan Olson writes this web-log to provide helpful information regarding long-term disability cases. He practices long-term disability law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at AOlson@MyLTDbenefits.com with questions about the information posted here or for advice on specific disability benefit claims.

Source: Leagle.com, Carrow v. Standard Insurance Co., --- F.3d ----, C.A.8 (Mo.)

Disability benefits appeal denied despite primary MD's report p4

2012-01-25T15:27:50Z

We are picking up our discussion of a case out of the 8th U.S. Court of Appeals regarding an employee's long-term disability benefits claim.

The claimant had a number of physical ailments. His plan had two benefit periods. During the first 24 months, the claimant had to be unable to perform the duties of his "own occupation"; after that, benefits would only continue if he were unable to perform the duties of "any occupation." When the transition point came around, his treating physician completed the insurance company questionnaire.

]]> The treating physician reported that the claimant was unable to work. The file then went to an insurance company consulting physician for review, and that doctor, after misreading part of the treating physician's report, determined that one of the injuries didn't seem too serious.

Because the plan defines "any occupation" in terms of the claimant's education, training and experience, the file was next delivered to a vocational case manager for his opinion. In his report, he said the claimant was fit for certain sedentary jobs.

The insurer denied the claim. The benefits would not continue, because the claimant was, according to the insurance company's consultants and employees, fit for a handful of jobs.

The appeals court will only overturn a benefits decision under an ERISA plan if the administrator has abused its discretion, or if the benefits decision is inconsistent with the disability plan's goals, conflicts with ERISA, interprets terms differently here from in past cases, and so forth. The decision essentially must be arbitrary or clearly wrong.

In our next post, we will explain the court's decision.

Source: Leagle.com, Carrow v. Standard Insurance Co., --- F.3d ----, C.A.8 (Mo.)

Pilot fired after he reported mechanical problems

2012-01-23T21:54:15Z

Most Wisconsin jetsetters would find it hard to believe that a pilot could be fired for ensuring the safety of passengers aboard flights. Nevertheless, a recent story discusses the firing of an employee who was concerned about flight-related mechanical equipment.

The Occupational Safety and Health Administration (OSHA) recently ordered AirTran Airways, a Southwest Airlines subsidiary, to reinstate a pilot who was fired after he reported a series of safety concerns. The agency conducted an investigation and found that the airline violated whistle-blower protection laws when it terminated the employee in 2007. OSHA noted that firing the pilot in retaliation for reporting mechanical malfunctions was not acceptable. Such malfunctions compromise the safety of AirTran's workers and customers.

]]> An employee should not be let go for complying with the law. If an employee reports potentially wrongful or illegal conduct on the part of an employer and is terminated, this usually creates a case against the employer. Specifically, Wisconsin state law offers protection for workers who are required to report any emotional abuse, physical abuse, sexual abuse, neglect, financial exploitation or other care-related violations.

In this case, the pilot was reporting various mechanical violations, which would inevitably affect the safe transportation of passengers. In these types of cases, the terminated employee should be compensated for losses due to the retaliatory discharge. In this particular story, OSHA is requiring the airline to pay over $1 million to the employee in back wages, plus interest and compensatory damages.

If you have been terminated because you reported your employer's wrongful or illegal conduct, you may want to speak to an attorney about your rights and remedies.

Source: Reuters, "Agency orders AirTran pilot reinstated with back pay," David Bailey, Jan. 17, 2012

FMLA requests made before employee is eligible may still be protected

2012-01-21T21:02:36Z

The Family and Medical Leave Act can be difficult for any Wisconsin worker to understand. In fact, it can be hard for employers to understand, too. It's okay if employers get confused, but it is not okay if they blunder forward without making sure they are giving employees the consideration and respect they must have.

That may have been the case in a recent lawsuit. Recently, a woman told her boss that she was going to take time off under FMLA after her baby was born, which was five months in the future. At the time she gave her boss notice, she had not worked long enough to qualify for FMLA leave (1,250 hours in the past 12 months), but by the time her baby was to be born, she would be eligible.

]]> The woman was fired three months later. Her boss said it was because she had not been doing well on the job, but the woman contended it was because of her FMLA request.

The first court to hear the woman's case said she was not protected under FMLA because she was not yet eligible. But the woman appealed and the second court agreed with her, saying that an FMLA request is a "protected activity," even if the employee is not yet eligible.

Although this case is new enough that its ultimate effect on other FMLA cases cannot yet be determined, it does seem to indicate that employees have more protection under FMLA than previously thought. It also served as a warning to employers that they should not be overly aggressive in looking for faults in an employee after that employee makes an FMLA request because that looks like the employer is looking for a reason to fire the employee.

If you are considering making an FMLA request and you are met with resistance, it may not be a bad idea to discuss the whole matter with an attorney who helps employees make sure they are afforded all the rights they are entitled to.

Source: Business Management Daily, "FMLA: Pre-Eligibility Leave Requests May Be Protected," Mindy Chapman, Jan. 20, 2012

Disability benefits appeal denied despite primary MD's report p3

2012-01-20T21:48:43Z

Starting a new job usually includes a review of the benefits plan with a human resources representative. The summary sheets give a broad overview of health and dental plans, life insurance and short- and long-term disability insurance. Most of the time, that's the last time the employee thinks about those benefits -- until he needs them.

We've been talking about a case out of the 8th U.S. Court of Appeals that involved an employee whose long-term disability benefits claim turned on the insurer's interpretation of doctors' reports. It isn't our job here to question the court's decision. We just want to show how disability plans work.

]]> Generally, insurance companies make coverage decisions. A homeowner's policy describes what's covered, but the insurance company decides if what happened really counts as what's covered.

A disability plan necessarily includes a definition of the term "disability." In this case, the definition had two parts. For the first twenty-four months, the employee had to be disabled from his "own occupation" in order to qualify for benefits. After that, he had to be disabled from "any occupation" that "reasonably" fits the claimant's "education, training and experience."

Short-term benefits only last so long. If a claimant's condition keeps him away from work longer than that period, the benefits convert to long-term disability benefits. In some plans, after a certain number of months on LTD, the claimant must apply for Social Security Disability benefits. This happened to our claimant -- he began receiving SSD benefits in January 2007.

In this plan, the "own occupation" to "any occupation" conversion happened at about the same time the SSD benefits kicked in. That conversion required a review by the insurance company based on a questionnaire completed by the treating physician.

That's where the confusion started.

We will finish this up next week.

Source

: Leagle.com, Carrow v. Standard Insurance Co., --- F.3d ----, C.A.8 (Mo.)

Disability benefits appeal denied despite primary MD's report p2

2012-01-17T20:24:52Z

We are continuing the discussion from our last post about how insurance companies determine eligibility for benefits. A recent case out of the 8th U.S. Court of Appeals shows how heavily one insurance company relied on physician reports in a long-term disability benefit claim. The case itself did not originate in Wisconsin, but we chose it because, under some circumstances, Wisconsin courts must follow decisions from the 8th Circuit. (The 8th Circuit decides long-term disability claims brought by people in Minnesota, Iowa, Missouri, Arkansas, Nebraska, South Dakota and North Dakota.)

The case involved a company's full-time employee who developed hip problems in early 2005, about five years after he started his job. He applied for and received short-term disability benefits that several months later converted to a claim under the employer's group long-term disability insurance policy.

]]> His physician, Dr. B, cleared him to return to work in February 2006. The doctor's report noted that the claimant had other problems with his knees and his other hip.

A few months after the claimant returned to work, he told his employer that he was in so much pain he could not work. His primary doctor, Dr. A, assessed the claimant's condition and indicated on an insurance form that he did not believe the claimant could ever return to work.

Once again, the claimant received disability benefits. A nurse/vocational consultant with the insurance company reviewed his medical records and agreed that benefits were due. The claimant spent the next six months receiving disability benefits and being treated for the pain and a newly diagnosed carpal tunnel condition.

In January 2007, two things happened. First, the claimant received a clean bill of health for the carpal tunnel. Second, he was approved for Social Security Disability benefits.

This is where an understanding of the long-term disability plan is critical. We'll get into it in our next post.

Source: Leagle.com, Carrow v. Standard Insurance Co., --- F.3d ----, C.A.8 (Mo.)