Your HR and Benefits Specialists

HRS/TND Associates, Inc.

The HR-Edge August Edition

The 7^th Circuit held that an employer adequately notified its employee that the clock on his Family and Medical Leave Act (FMLA) leave was running, concurrently with his workers' compensation absence. The employee handbook specified that all FMLA time would run concurrently with short-term disability, workers' compensation, or any qualifying event. In addition, the employer sent the employee letters which defined the requirements for FMLA eligibility, informed him of the FMLA leave hours that had already been used in the pertinent period and the hours of leave still remaining, and notified the employee when his remaining FMLA leave was expected to end.  Pursuant to its policy and practice, it could terminate the employee for exceeding the FMLA's 12-week leave allotment.  The lesson is that your FMLA policy needs to be detailed to cover all foreseen situations.  Contact FMLA Bob for more info.

Volume 8, Issue 3, 8/20/08

The 3rd U.S. Circuit Court of Appeals, which includes Pennsylvania, held that an employee does not need to give formal notice of his or her intention to take a leave of absence under the Family and Medical Leave Act (FMLA) to receive its protections, even if the employer’s FMLA policy requires an employee to make a formal written request.

 

A limousine company supervisor had a 10 year history of heart related ailments and when a new health issue arose and he was assigned to wear a heart monitor for 30 days and surgery, with a period of recuperation, might be indicated depending on the monitor results.  Within two weeks the employee was terminated for poor performance.  His written record of performance showed satisfactory reviews.

 

The employee asserted that the company interfered with his rights under the FMLA when it terminated him after learning that he may need to have heart surgery and take six weeks of leave for recovery. Employer responded that it had no notice of the employee’s intent to exercise his FMLA rights.

The FMLA policy required employees to submit a formal written request for leave. Because the ee never made such a request, the company argued it had no notice and therefore did not interfere with his FMLA rights.

The district court agreed with the company and held for the employer.  Therefore, according to the lower court, the company did not interfere with his rights when it terminated him.

 

On appeal, the 3rd Circuit reversed the lower court’s ruling. The court held that an employee need not make a formal request for leave to invoke the protections of the FMLA. Rather, the court quoted from decisions of the 5th, 6th and 8th Circuits, which have found that an employee has provided sufficient notice to the employer of a need to take a leave of absence under the FMLA if “the information the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee’s request to take leave for a serious health condition that rendered him unable to perform his job.” (Thanks shrm.org)

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FMLA Leave Concurrent

With Workers' Compensation

 

COBRA QUICK TIP

 

Fighting the Gas War

 

IRS announces 2009 HSA limits

 

Knowledge of Potential Need for Leave Is Sufficient To Invoke FMLA

 

Results from our August 12 Seminar questionnaire

 

Things to watch

 

House Approves New Pay Equity Legislation

 

Quick Quiz

The IRS issued guidance on the maximum contribution levels for health savings accounts (HSAs) and out-of-pocket spending limits for high deductible health plans (HDHPs) that must be used in conjunction with HSAs. These amounts have been indexed for cost-of-living adjustments for 2009. The maximum annual HSA contribution for an eligible individual with self-only coverage is $3,000. For family coverage, the maximum annual HSA contribution is $5,950. The maximum annual out-of-pocket amount for HDHP self-coverage increases to $5,800 and the maximum annual out-of-pocket amount for HDHP family coverage is twice that, $11,600. For 2009, the minimum deductible for an HDHP increases to $1,150 for self-only coverage and $2,300 for family coverage.

The U.S. House Committee on Education and Labor approved H.R. 1338,The “Paycheck Fairness Act”; would amend the Fair Labor Standards Act of 1938 and the Equal Pay Act of 1963 in the following ways:

 

1. Eliminate the caps on punitive and compensatory damages

 

2. Make punitive and compensatory damages available for even unintentional disparities

 

3. Eliminate employer defenses for pay disparities, such as paying people differently because they work in different parts of the country with different costs of living

 

4. Make it easier to file large class actions

 

5. Impose comparable worth “guidelines”

What is the newest U.S. Labor Law signed by President Bush on Wednesday, May 21, 2008?  Go to www.hrstndassociates.com for the answer.

Did You Know?

 

Divorce and legal separations are COBRA qualifying events. If one of these events occur, the spouse losing coverage would be eligible for 36 months of COBRA coverage. It’s important to note that it is the responsibility of the employee to notify the employer that the event occurred. However, be sure you have records of initial notices being sent to the employee and spouse to prove they were notified of their rights and responsibilities under COBRA.  For more information contact COBRA Sean.

Many employers are seeking ways to assist in the gas price crisis.

Some ideas on how any employer might help their employees relieve the gas pressure are:

¨ Flexible work schedules

¨ Telecommuting

¨ Supplement public transportation costs

¨ Use gas cards as performance rewards

¨ Encourage and abet in carpooling

¨ Advance gas money prior to travel rather than after

¨ Assure mileage reimbursement at IRS rate ($0.585)

¨ Four day work week

ADEA disparate impact regulation.

The federal agency is revising its regulation on disparate impact (29 CFR section 625.7(d)) to conform to the US Supreme Court's decision in Smith v City of Jackson, 544 U.S. 228, 86 EPD 41,882 (2005), which affirmed that disparate impact is cognizable under the ADEA, but that "reasonable factors other than age," not "business necessity," is the standard for an employers' defense against a disparate impact claim.

Data collection regulation.

The EEOC intends to publish a notice, by March 2009, for its proposed Revision of Race and Ethnicity Data Collection Method regulation (RIN: 3046-AA81). The revision would conform the agency's rules to a key change in the revised EEO-1 report, making employee self-identification the preferred method for collecting race and ethnic data on employees. Under the current rule, employers are permitted to gather this data from revised surveys or employment records.

White House photo by Eric Draper

At our August 12 seminar we asked the 50 attendees to complete a survey to help us plan for future seminars.  This is what we learned:

 

¨ Most attendees like the Cabela's location and the Tuesday schedule.

 

¨ Top suggestions for future topics were Safe Termination and UC, Motivating Employees, Job Descriptions, OT and the FLSA, Successful Team Building, Performance Review and Compliance issues.  The other interesting suggestion was for a course on HR for the Non-HR Supervisor.

 

¨ With ever escalating costs we asked what attendees would be willing to pay for this kind of seminar.  The majority answer was $20 by a wide margin.  HRS believes our seminars are our contribution to the growth of the profession.  While the next one may have a fee, it will only cover out of pocket costs.

 

Thanks to all for their participation.

 

Look for our next seminar November 11, 2008.