HIGHLIGHTS
FOR THE MONTH OF DECEMBER 2007
By: Fiona
W. Ong
FMLA Expansion For Service Members Poised To Become Law
FMLA Requires Individualized Notice
Employment Testing
SSN No-Match Rule
Hostile Environment Harassment
OFCCP
Protecting Trade Secrets and Confidential Information
RECENT DEVELOPMENTS
FMLA Expansion
For Service Members Poised To Become Law
On December 14, 2007, the U.S. Senate overwhelmingly voted
to approve the National Defense Authorization Act, H.B.
1585, which would expand the application of the Family and
Medical Leave Act (“FMLA”). The House of Representatives
has already approved this bill, and White House officials
indicate that President Bush is prepared to sign the bill
into law in the near future.
The FMLA provisions of this Act arise from a list of recommendations
issued by the President’s Commission on Care for America’s
Returning Wounded Warriors in March 2007. Currently, the
FMLA provides eligible employees with up to 12 weeks of
unpaid leave for certain health-related events, including
to care for a family member (parent, son, daughter or spouse)
who is ill. The new law will require employers to provide
up to 12 weeks of unpaid leave to family members of soldiers
because of any “qualifying exigency” (which
Congress has left to be defined by the Department of Labor)
arising out the service member’s active duty or impending
call to active duty. The law also will require up to 26
weeks of leave to family members (expanded to include “next
of kin” which is defined as the nearest blood relative
of the service member) to care for a service member wounded
while on active duty.
Congressional sponsors of these FMLA expansion provisions
have acknowledged that employers may need time to prepare
for and comply with the new requirements. There is no effective
date for the new FMLA provisions in the Act, and some employer
groups have requested that key sponsors of this measure
draft a statement regarding this issue. In addition, the
Department of Labor has indicated that it will need time
to draft new regulations regarding these provisions. Although
it is unclear when the new requirements will apply, employers
would be wise to review their FMLA policies and consider
what changes may need to be made, in consultation with their
employment attorneys.
FMLA Requires
Individualized Notice
The U.S. Court of Appeals for the Fifth Circuit determined
that the Department of Labor’s regulations requiring
employers to give individualized notice to employees regarding
their Family and Medical Leave Act (“FMLA”)
leave are valid and enforceable.
Facts of the Case: In Downey
v. Strain, the plaintiff took leave related to her knee
and shoulder surgeries from November 2002 through March
2003 and was charged with 424 hours of FMLA leave. Under
FMLA, eligible employees are entitled to 12 weeks of leave
in a twelve-month period, and are entitled to reinstatement
to their job position upon their timely return to work.
In this case, the employee was entitled to 480 hours of
leaved based on the employee’s routine 40 hours per
week of work. In June 2003, the plaintiff suffered a work-related
knee injury and had surgery, requiring another two months
of leave from the end of July through the beginning of October
2003. The plaintiff’s supervisor charged this leave
to FMLA, but did not inform her that he was doing so. Her
FMLA leave was exhausted as of August 7, with the remainder
of the time consisting of other paid leave. Upon her return
to work in October, the plaintiff did not receive reinstatement
to her previous job, but instead was reassigned to another
division where she received fewer fringe benefits.
The plaintiff sued, arguing that her supervisor had interfered
with her rights under FMLA by failing to provide her with
individualized written notice that her second leave would
be designated as FMLA leave. She claimed that, had she known
that the second leave would be counted as FMLA, she would
have postponed her surgery to a time when it would not have
caused her to exceed her FMLA entitlement. The jury found
in the plaintiff’s favor, and the defendant appealed
the verdict, arguing that the regulations requiring individualized
notice were invalid.
Section 825.208(a) of the FMLA regulations provides, “In
all circumstances, it is the employer’s responsibility
to designate leave, paid or unpaid, as FMLA-qualifying,
and to give notice of the designation to the employee as
provided in this section.” Section 825.208(b)(1) provides,
“Once the employer has acquired knowledge that the
leave is being taken for an FMLA required reason, the employer
must promptly (within two business days absent extenuating
circumstances) notify the employee that the paid leave is
designated and will be counted as FMLA leave.”
The Court’s Ruling: The
Fifth Circuit reaffirmed the validity of these notice regulations,
and upheld the District Court’s ruling that the employee
in each case must demonstrate that she actually suffered
some harm from the FMLA violation (e.g. no notice) before
being entitled to a remedy. Because the plaintiff was able
to make that showing, the Fifth Circuit affirmed the jury
verdict in her favor.
Lessons Learned: This case
emphasizes the importance of timely and specifically informing
employees that their time off (whether paid or unpaid) is
designated as FMLA leave, even if provisionally before a
proper health care certification form is received. Failure
to notify opens an employer to liability for damages under
the FMLA.
TAKE NOTE
Employment Testing.
The EEOC has issued a new fact sheet on the application
of federal anti-discrimination laws to employment tests
and selection procedures for workers and applicants.The
fact sheet describes commonly-used tests in the modern workplace,
including cognitive tests, personality tests, medical examinations,
credit checks, and criminal background checks. It further
sets forth "best practices" for employers to follow when
using employment tests and other screening procedures, including:
- Determining the selection procedure with the least adverse
impact on a protected group of employees;
- Updating test specifications or selection procedures
to conform to changes in job requirements; and
- Ensuring that managers understand the test procedure's
effectiveness and limitations, appropriate administration,
and scoring. The new fact sheet may be found at the EEOC's
website, http://www.eeoc.gov/policy/docs/factemployment_procedures.html.
SSN No-Match Rule.
As discussed in several of our prior E-Updates [August,
September and October],
the Department of Homeland Security's new rule on employers'
treatment of no-match Social Security numbers has met with
controversy and litigation. The DHS has now asked the judge
to place the litigation on hold, pending revisions to the
rule. The DHS will begin a new rulemaking process in December.
Hostile Environment
Harassment. In Patane
v. Clark et al., the U.S. Court of Appeals for the Second
Circuit held that a hostile work environment claim could
exist for a secretary exposed to pornography when she opened
her supervisor's mail. The Second Circuit held that a hostile
work environment could exist where a secretary was required
to handle pornographic videotapes in the course of performing
her job responsibility of opening her supervisor's mail,
where she was aware that the supervisor was watching pornographic
videos in his office, and where she found hardcore pornographic
websites viewed by her supervisor on her workplace computer,
even though she did not actually see the pornographic videos
being viewed by her supervisor or see him perform sexual
acts.
OFCCP. The
Office of Federal Contract Compliance Programs, which ensures
compliance by government contractors with affirmative action
requirements, has issued Frequently Asked Questions Regarding
OFCCP’s Review of Contractor Compensation Practices.
In the FAQs, the OFCCP:
- Described the tiered process it uses for a compliance
review, consisting of a desk audit followed, where necessary,
by a focused review or full compliance review;
- Described the criteria it examines during its compensation
evaluation;
- Explained what additional information it may require if
potential compensation discrimination is indicated; and
- Explained that the Supreme Court’s decision in the
pay discrimination case of Ledbetter v. Goodyear Tire &
Rubber Co. did not affect the OFCCP’s Interpretative
Standards for Systemic Compensation Discrimination, by which
it uses statistical analyses to examine pay discrepancies.
The FAQs are available at the OFCCP’s website, http://www.dol.gov/esa/regs/compliance/ofccp/faqs/emprnewfaqs.htm
.
TOP TIP
Protecting Trade Secrets and Confidential
Information
In Navigant
Consulting v. Wilkinson et al., the U.S. Court of Appeals
for the Fifth Circuit affirmed a jury verdict requiring
two employees to pay over $2 million to their former employer
for breach of fiduciary duty, breach of contract regarding
confidential information, and misappropriation of trade
secrets. This case emphasizes the wisdom in taking precautions
to protect trade secrets and confidential information.
Steps that employers can take to protect trade secrets
and confidential information include:
• Identify confidential information
• Identify classes of employees who should sign agreements
not to disclose confidential information or trade secrets
• Develop a procedure for obtaining these agreements
• Develop an exit procedure to remind employees of
their obligations regarding protected information
• Maintain physical security over documents containing
protected information
• Train managers regarding the need to protect and
enforce confidential information and trade secret obligations
• Take action to enforce the Company’s rights.
For greater clarification of any of these issues, you may
contact any Shawe
Rosenthal attorney.
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