The
Family and Medical Leave Act Revisited
Employees
filed almost 1,000 complaints with the Department of
Labor's Wage and Hour Division during the first 11 months
that the Family and Medical Leave Act was in effect.
The Division found violations in 591, or 61 percent of
those complaints.
The
most common situations that have generated complaints
involve employers who have terminated employees for attendance
problems. That situation often arises with employers
who use a no fault or occurrence type of attendance system.
FMLA leave can not be counted as an "occurrence" under
that type of policy.
Other
common complaints relate to the designation of paid leave
as FMLA leave. In order for such a designation to be
valid, the employer normally must inform the employee
before an absence begins that the paid leave will be
so classified. As a consequence, the employer should
notify the employee when the leave request is submitted.
The
employer may make a retroactive designation only when
the employer learns subsequent to a leave request that
the reason for the absence qualifies for FMLA leave.
In that limited circumstance, the employer may designate
the paid absence as FMLA leave if the employee is still
on leave. Once the employee returns to work, however,
the employer may not make a retroactive designation.
The
Division generally attempts to resolve informally FMLA
complaints and, indeed, the vast majority have been resolved
in just that manner. The Division's investigation procedure
resembles the process used by agencies such as the Equal
Employment Opportunity Commission.
After
the employee provides information to support a complaint,
the Division asks the employer why the adverse action,
such as a termination, was taken. If the employer contends
for example that the employee was terminated for poor
performance, the Division typically asks the employer
to provide evaluations, records of prior warnings, and
attendance calendars that document the employee's work
history.
In
most cases, the Division attempts to broker a settlement
between the employer and the employee. If the Division
cannot do so and then decides not to pursue litigation,
a letter is sent to the employee setting forth the right
to file a lawsuit against the employer in federal or
state court.
The
Division has issued interim regulations that implement
the FMLA and that provide compliance guidelines for employers.
Those regulations are not final, however, and the Division
has already delayed several times the promulgation of
such rules.
We
have been told that the issue delaying the publication
of the final regulations is the definition of what constitutes
a "serious health condition." Once the final regulations
are issued, employers and their lawyers will have a better
idea of what must be done to satisfy the obligations
imposed by the FMLA.
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