FMLA Warning: Employees Can be Held Personally Liable for Family and Medical Leave Act Violations

Too often, companies wait until they get sued before taking note of how the Family and Medical Leave Act might impact their business. Don’t be that company. Read on below for an overview of the FMLA and what your liability is under the act.

Do you own or work at a company with 50 or more employees? If so, the Family and Medical Leave Act (FMLA) likely is applicable. Violations of the FMLA have serious legal consequences. A successful plaintiff might be entitled to the recovery of lost back pay, lost front pay, emotional distress/punitive damages, attorneys’ fees and costs.  Even if you prevail in the lawsuit, the average cost of defending an FMLA lawsuit is approximately $80,000.

For the individual manager or owner of the company, this law can be especially frightening. In addition to exposing the company to these penalties, the FMLA could impose personal liability upon employees, or owners who commit violations and meet the definition of an “employer” under the FMLA. Let’s take a closer look at the FMLA and what it means for your business.

Overview of the FMLA

The FMLA only applies to “covered employer,” or an employer who falls into one of the following categories:

  • private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • public or private elementary or secondary school, regardless of the number of employees it employs.

 

Only “eligible employees” are entitled to take leave under the FMLA. The following are requirements to constitute an “eligible employee” under the FMLA:

  • works for a covered employer;
  • has worked for the employer for at least 12 months;
  • has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave (there are special hours of service eligibility requirements apply to airline flight crew employees); and
  • works at a location where the employer has at least 50 employees within 75 miles (this only applies to private sector employers).

Eligible employees are entitled to a maximum of 12 weeks of leave. The leave may be unpaid, but it may be combined with accrued paid leave (such as vacation or sick leave).

An eligible employee may take leave:

  • for the birth, adoption, or placement of a child;
  • to care for a spouse, son, daughter, or parent who has a serious health condition;
  • for a serious health condition that makes the employee unable to perform the essential functions of his or her job (e.g. hospital care, treatment for a chronic condition, etc.); or
  • for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

Employees might be required to provide medical certification of their condition or their family member's condition to be eligible for FMLA leave. The employee may also be required to recertify with their employer, especially if they are seeking intermittent FMLA leave.

Personal liability under the FMLA

While it is no surprise that the company who violates the FMLA can be found liable for violations, the definition of “employer” under the FMLA is more expansive. The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer …” 

Numerous courts have held that the definition of an “employer” includes individual employees within a company (e.g. supervisors and managers). Some courts have ruled that the FMLA’s definition of “employer” is similar to the definition of an “employer” under the Fair Labor Standards Act (FLSA). Accordingly, those courts have relied upon the standards used to evaluate an “employer” under the FLSA and utilized the following four-factor test to determine whether an employee should be held individually liable under the FMLA:

  • whether the supervising employee had the power to fire and hire plaintiff;
  • whether the supervising employee controlled the plaintiff’s work schedules or conditions of employment;
  • whether the supervising employee determined the rate and method of payment for the plaintiff; and
  • whether the supervising employee maintained employment records.

Court have held that only some of the foregoing factors need to be satisfied for a supervising employee to constitute an “employer” for purposes of the FMLA (and the FLSA).  If an employee is held that he/she constitutes an “employer” and violated the FMLA, that employee is subject to all the same potential penalties as the company (payment of the plaintiff’s lost back pay, lost front pay, emotional distress/punitive damages, attorneys’ fees and costs).

These rulings highlight some important points. To minimize potential FMLA claims, a company should:

  • consult with a professional to understand the legal requirements set forth by the FMLA;
  • maintain written FMLA policies and procedures (both employee-facing and management-facing) and provide on-going training;
  • ensure that decision-makers have all of the relevant information and are properly trained before they terminate or otherwise discipline employees who have exercised their FMLA rights;
  • periodically review their FMLA policies to ensure that they comply with any changes in the law that may have occurred.

Unfortunately, companies typically wait to get sued before taking any action. They fix their problems after a plaintiff's lawyer runs them through the ringer, and then only address the problems for which they were sued. The best and most cost-effective solution is a proactive approach—minimize your legal exposure before a problem arises and conduct an internal compliance audit. A preemptive strategy of identifying and fixing issues before a lawsuit occurs saves time and money and limit a company’s exposure under not only the FLMA, but other potential legal pitfalls.

This article is meant to be utilized as a general guideline for FMLA violations. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.

Mark Turner can be reached by phone at (440) 571-7773 or by email at mt@gertsburglaw.com.

An audit of your policies can help you avoid the pain of lawsuits. The Gertsburg Law Firm now offers CoverMySix, a one-stop legal audit for your business, led by award-winning litigators and in-house counsel. CM6 minimizes your exposure to lawsuits, investigations, disgruntled employees and customers, and all the damage that comes with them. Schedule a confidential, no-cost CM6 Vulnerability Check with Gertsburg Law Firm’s CEO, who will walk you through the minefields in your documents and key processes and tell you how to fix them yourself. Call 440-571-7774 or e-mail mc@gertsburglaw.com to schedule your CM6 Vulnerability Check
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  • Next up: Employers Sitting on Over $10.8M of Uncashed BWC Rebate Checks
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  • Employers Sitting on Over $10.8M of Uncashed BWC Rebate Checks

    Did you receive any rebate checks from the Ohio Bureau of Workers’ Compensation this summer? You better get them cashed!

    More than 5,500 Ohio employers are sitting on $10.8 million in uncashed checks, according to the BWC. They were were distributed as part of a $1.5-billion rebate. The checks have a 90-day life and began expiring Oct. 3. 

    Checks that expire can be reissued, "but that will further delay employers' access to their rebates," said Barbara Ingram, its chief of fiscal and planning, in the release.

    The first checks went out on June 28 and those expired Oct. 3. The BWC said 44 checks from that batch, totaling $143,241.38, remain outstanding. In total, there are 5,547 checks that have not been cashed, representing $10,88,116.60 in rebates.

    The BWC will credit an employer's account the amount of their rebate if check isn’t cashed. Credits will apply to any outstanding balances owed by the employer and a new check will be issued for any remaining credit on the account.


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  • Next up: Employment Lawsuits: 10 Ways to Safeguard Your Business
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  • Employment Lawsuits: 10 Ways to Safeguard Your Business

    Learn the 10 things you have to know about mitigating exposure to employment-related lawsuits.

    Learn the 10 things you have to know about mitigating exposure to employment-related lawsuits.

    Employment-related lawsuits are difficult to deal with: Emotions run high with personal issues often brought into play. Even when claims are meritless, defense costs can be substantial. The impact on morale and reputation can also be significant. The following 10 steps help reduce these issues in your business and strengthen your defense if an action is brought.

    1. Invest in an employee handbook

    This includes employment-at-will, harassment and discrimination provisions. Every employer should invest in an employee handbook. While this might seem like an unnecessary expense, having policies in place that address termination of employment, discrimination and harassment can reduce potential exposure in employment-related matters. At a minimum, a handbook should include an employment-at-will statement and a zero-tolerance policy toward discrimination and harassment. While sample policies are available, employers should ensure all policies are compliant with applicable state and federal laws. Ideally, an employment attorney should draft and/or review the handbook.

    Example: The COO maintained only one copy of an old, out-of-date handbook that was no longer compliant with state or federal laws in her office. The employees knew it was in the COO’s office and were not comfortable accessing it. When an employee filed a lawsuit, the handbook’s provisions were not enforced because they were (1) in conflict with the law and (2) because it had not been disseminated to employees.

    2. Ensure consistency

    Maintain consistency with a uniform review of all adverse employment decisions. A neutral party within your organization should review all such decisions to ensure the emotional component is minimized, and consequences of poor performance or misbehavior are being consistently evaluated.

    Example: Two supervisors had the ability to hire and fire employees on their respective teams. One strictly enforced attendance rules and terminated two employees who were late to work on three occasions. The other supervisor was more lax, allowing her team to arrive to work late or leave early. The terminated employees, who were both older than 40, filed suit alleging age discrimination, pointing out many employees younger than 40 had also been tardy on several occasions, but weren’t terminated.

    3. Train employees on employment-related issues

    All employees should receive basic training on employment-related issues. Training options are available online and in-person, or you can opt for an attorney to perform training at your organization.

    Train supervisors to:

    • Take every complaint seriously.
    • Immediately refer every complaint to HR or the designated employee and investigate in a timely, thorough manner.
    • Be fair and consistent.
    • Document performance issues and be honest on performance evaluations.
    • Be vigilant to stop conduct that could draw allegations of discrimination or harassment.

    Train non-supervisory employees to understand:

    • There is a process in place to file a harassment or discrimination complaint.
    • These are the types of behavior that are unacceptable in the workplace.
    • There is an employer’s handbook and/or policies and procedures in place.

    Example: Every day, after business close, employees would stay to complete standard end-of-business day duties. This hour was typically filled with sexual banter among the employees. The manager was present, but never took steps to stop these conversations. A new employee was hired and terminated after only a few months when it became clear that she was not meeting required service standards. She filed a discrimination charge, claiming sexual harassment because of what took place at the end of the workday.

    4. Document everything

    Employment claims often come down to one’s word against another’s. When an employer maintains detailed documentation created close in time to incidents in question, it’s a much stronger defense in any subsequent claims. Documentation should be clear, concise, free from emotion or unnecessary commentary, and include performance issues and the resulting consequences. Ideally, the employee should sign the documentation to acknowledge issues were brought to his or her attention. Performance evaluations of all employees should be done honestly. While it might be easier to simply give average or above average evaluations, it’s then difficult to defend any action by an employee where performance is relevant.

    Example: A woman complained to the president that she was being sexually harassed by her supervisor. The president met with the supervisor who promised to stop. The president did not document the conversation. The behavior continued. Months later, the woman was terminated for performance issues. She alleged she was fired in retaliation for complaining about sexual harassment. She kept detailed notes and established she complained to the president.

    She alleged he did nothing as a result and conspired with her supervisor to get rid of her. Because the president had no documentation of his meetings with the woman or her supervisor, her version of events was more believable.

    5. Watch workplace jokes and banter

    Most adults spend a huge chunk of their waking hours on the job and want to be able to enjoy relationships with their co-workers. While a collegial atmosphere is to be encouraged, it can quickly cross the line into actionable behavior. Consider the following comments: “Pregnant again? How many kids do you have?!” “You’re 50? Over the hill!” “As an African-American, what do you think of Obama?” “How was your vacation? Wish I could have seen you in a bikini!” “We need to figure out how to attract Gen-X employees.”

    All were intended as harmless banter; however, they were used as evidence against an employer in a lawsuit brought by a former employee. Be vigilant in ensuring that employee interactions are professional and appropriate.

    Example: A supervisor planned a 50th birthday party for an employee, including an “over the hill” banner, a black cake decorated with a tombstone and numerous age-related gag gifts. Shortly after the party, the employee was fired. He sued, alleging age discrimination, using the events at his birthday party as evidence of his supervisor’s discriminatory intent.

    6. Recognize pitfalls in pre- and post-employment time frames

    The interview process can be challenging as an employer attempts to gain information about prospective employees to determine whether they are suitable for a job. However, it is prohibited to ask about certain topics, such as disability, age, children, marital status, etc., and illegal to make hiring decisions based on such information. Interviewers should focus on asking only work-appropriate questions. Once an employment relationship has ended, care must still be taken. Final paychecks and payment for accrued vacation time must be made in a timely manner based on state law. Calls for references should be handled by one person and dealt with in a consistent manner. No specifics regarding a termination should be discussed with other employees or customers.

    Example: After an employee was terminated for dishonest conduct, the employer received a reference call on the employee. The employee provided a detailed and extremely negative reference that resulted in a defamation lawsuit.

    7. Regulate Internet and email use

    In most workplaces, employees have email and Internet access. Be vigilant that these tools are used in an appropriate manner. Have a policy prohibiting the access of pornographic or inappropriate websites and consider software that blocks inappropriate websites. Employees should be warned emails are never truly deleted and all email communication should be conducted in a professional manner.

    Example: The CFO was engaged in a consensual affair with an employee, communicating multiple times a day via corporate email. When the employee broke off the affair, the CFO continued to email her constantly, begging her to come back. Months later, the employee applied for a promotion and did not get it. She quit and filed a lawsuit alleging sexual harassment and retaliation. Their thousands of emails figured prominently in the case.

    8. Be aware of workplace violence issues

    An employer must be vigilant and safety conscious, understanding they have an obligation to provide a safe workplace and to take reasonable steps to ensure employee safety while on the job, especially in the event of a termination or other event that might cause anger on the part of an employee or even a customer. It might involve hiring security for the day or simply handling a termination privately with respect for the employee’s emotions.

    Example: An employee who was a “cutter” would bring razor blades to work and, when stressed, would go into the bathroom to cut her skin. She told several co-workers, who informed management. Concerned with her bringing sharp objects to work that could be used as weapons, management warned her not to bring them to work and encouraged her to seek counseling. Days later, she was seen with a knife in the bathroom and terminated. She later filed suit for disability discrimination.

    9. Review FLSA status of employees

    The Fair Labor Standards Act requires that employees be properly categorized as exempt (paid a salary and not eligible for overtime pay) or nonexempt (paid by the hour and entitled to overtime pay if work is in excess of a certain number of hours per day or week). Failure to properly categorize jobs can lead to an employer being required to reimburse an employee or class of employees for unpaid overtime allegedly earned over a period.

    Example: A group of employees filed a lawsuit alleging they regularly worked over 40 hours per week and were owed overtime pay.

    10. Open door policy

    A simple way to avoid employment-related problems is open and honest communication. Employees should feel comfortable approaching their employer to discuss employment-related issues. If managers truly have “open doors” to employees, many potential issues can be identified early and rectified before a true problem develops.

    Example: A manager with a volatile personality rarely interacted with his staff. He instructed them to only interact with him by email and not to interrupt him in person with problems. An employee, diagnosed with cancer, needed accommodations to go to chemotherapy and doctor appointments. Uncomfortable with speaking with her manager, she didn’t inform him of her situation and missed many days of work. He terminated her and she sued for disability discrimination.

    Questions? Comments? Contact Josh Holden at ABA Insurance Services via email at jholden@abais.com or call him at 216-903-4597.

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  • Next up: Enroll in BWC’s Destination: Excellence programs by May 29 to Earn Rebates
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  • Enroll in BWC’s Destination: Excellence programs by May 29 to Earn Rebates

    As part of the prospective billing implementation, enrollment is currently underway for private employers to sign up for several of the Destination: Excellence programs. Destination: Excellence is a bundle of programs BWC offers that help businesses improve workplace safety, enhance injured worker care and save money on workers’ compensation costs.

    As part of the prospective billing implementation, enrollment is currently underway for private employers to sign up for several of the Destination: Excellence programs. Destination: Excellence is a bundle of programs BWC offers that help businesses improve workplace safety, enhance injured worker care and save money on workers’ compensation costs.

    Private employers may sign up with BWC between now and May 29 for these programs:

    • Industry-Specific Safety Program, a 3 percent premium rebate for completing loss-prevention activities
    • Drug-Free Safety Program, a 4 or 7 percent premium rebate for incorporating an alcohol and drug testing and education program
    • Transitional Work Bonus Program, up to a 10 percent premium rebate for successfully returning an injured worker released with restrictions back to work

    If you would like additional information, the BWC website has details about the changes and programs. Visit www.bwc.ohio.gov. Click on the Employers tab on the menu. Then select Prospective Billing under the Featured Links tab. You can also contact COSE’s Workers’ Comp team at 216-592-2351.


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  • Next up: Ensure a Drug-Free Workplace by Watching for These 4 Warning Signs
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  • Ensure a Drug-Free Workplace by Watching for These 4 Warning Signs

    Part of keeping your employees and business safe is ensuring people aren’t coming to work under the influence of drugs or alcohol. Here are warning signs to look out for, behaviors to monitor and steps to take to create a drug-free workplace.

    Every business, no matter how big or small, can experience employees who struggle with or even use drugs or alcohol at work. Small businesses may face unique challenges to this issue, both from a manpower and from a financial perspective. You know and like your employees, but perhaps you have limited resources to help them or lack the knowledge or skills to detect an issue. Maybe you only have a few employees and don’t know how to prevent or deal with a drug problem in your company. How do you know you aren’t just being paranoid?

    Short of actually catching your employee in the act of actually taking drugs or drinking, there really is no way you can tell for sure they are taking drugs. Most people who take drugs are very secretive and are very adept at hiding their addictions. That doesn’t mean that you can’t detect drug use in your company, you just have to be observant and diligent.

    We are bringing you a list of warning signs and tips to help you determine if an employee is using drugs, followed by ways to effectively and safely handle the situation.

    Beware of these behaviors that may be telltale signs of drug use:

    Warning sign No. 1: Erratic or unusual behavior. An employee may be very energetic one day and very quiet and tired the next. They may behave irrationally or lash out. They may not be able to concentrate or have a short attention span. They may also be forgetful. While these behaviors may be symptoms of many things, if they are new or if they continue for a while, you should look into the possibility of drug use.

    Warning sign No. 2: Risky behavior. Drug users often do not consider the consequences of their behavior, making decisions that can lead to harming themselves or others. Small, but other telltale signs, can also be that they never have any money or that they are dealing with many legal issues. Again, these signs can mean many things, but they can also be signs of drug abuse.

    Warning sign No. 3: Irresponsible behavior. If you find they are breaking things, losing things or borrowing things you may want to keep an eye out for drug or alcohol usage symptoms.

    Warning sign No. 4: Nervous or confused behavior. Again, these can be a sign of many things but can also be a sign of a drug abuser.

    If you suspect an employee of drug abuse, never accuse them. Begin by monitoring them and keeping a written record of their behaviors, including the following:

    • how often they miss work;
    • if they yell at or act aggressively toward you or co-workers;
    • if they are glassy eyed;
    • if their hygiene has slipped or changed; and
    • if they are slurring their words.

    If you suspect an employee is using drugs or alcohol at work, send them home immediately! However, make sure that they can get home safely. Have someone drive them so they don’t get behind the wheel themselves. And, if possible, have another employee or supervisor witness when you do this. Do not spend time alone with them, especially if they are under the influence.

    You can discuss the situation at another time. Choose another day when they are clean to ask them about their behavior or actions. Perhaps you can offer some help or resources. Be prepared with a list of facilities or support groups you can give to them. Refer them to your company policy on drug abuse and if necessary, report them to the authorities. Let them know you care and want to help them.

    While nothing can completely stop drugs at work, you can help to make your workplace a drug free zone and protect yourself, your employees and your business by doing the following:

    • Create and enforce rules about drugs use at work. This includes rules about drinking and smoking on the premises. Include any consequences that will be enforced if they break these rules, up to and including termination.
    • If you can afford it, institute a random drug testing program. Be sure to tell employees and all new hires that you are going to do random drug testing.
    • Educate your employees about the signs of drug abuse.
    • Teach stress management to help employees deal with issues so they don’t turn to drugs.

    If you need assistance with any of these issues, you can bring in an outside firm to help you design a program, create or update your policies, or even to help with disciplining or even firing an employee.

    President, SACS Consulting & Investigative Services, Speaker, Trainer, Corporate Security ExpertTimothy A. Dimoff, CPP, president of SACS Consulting & Investigative Services, Inc., is a speaker, trainer and author and a leading authority in high-risk workplace and human resource security and crime issues. He is a Certified Protection Professional; a certified legal expert in corporate security procedures and training; a member of the Ohio and International Narcotic Associations; the Ohio and National Societies for Human Resource Managers; and the American Society for Industrial Security. He holds a B.S. in Sociology, with an emphasis in criminology, from Dennison University. Contact him at info@sacsconsulting.com

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  • Next up: Entrepreneurial StrengthsFinder
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  • Entrepreneurial StrengthsFinder

    Passion and ideas are not enough to grow a successful business. Entrepreneurs or start-up teams need to possess key characteristics that give them a stronger ability to launch and succeed. Understanding who you are and where you stand as an entrepreneur can help you tap your talents to become successful. Gallup Strengths Center explored this concept, resulting in a book, Entrepreneurial StrengthsFinder by Jim Clifton and Sangeet Bharadwaj Badal.

    Passion and ideas are not enough to grow a successful business. Entrepreneurs or start-up teams need to possess key characteristics that give them a stronger ability to launch and succeed. Understanding who you are and where you stand as an entrepreneur can help you tap your talents to become successful. Gallup Strengths Center explored this concept, resulting in a book, Entrepreneurial StrengthsFinder by Jim Clifton and Sangeet Bharadwaj Badal.

    “We studied successful entrepreneurs and figured out how to scientifically measure qualities that individuals inherently have that drive them to be successful in this role,” says Badal. The last four years, Gallup has been intensely studying successful entrepreneurs, identifying entrepreneurship as a strategy for economic growth. “We realize that even though there are so many different reasons why someone would start a business and why some businesses are more successful than others, one of the differentiators was the role of the entrepreneur who is at the center of the activity,” Badal says. Now, there is science that explains why entrepreneurs are different, and this can help us hone natural talents and provide tools to drive successful entrepreneurial ventures.

    “The demands of the entrepreneurial role are so complex that any one predictor of success is not possible,” Badal says, prefacing the 10 talents of successful entrepreneurs she lays out in Entrepreneurial StrengthsFinder. “You can’t have one or two characteristics that make you magically successful. In a role this complex, you need a complete set of talents.”  Badal identifies those talents as: business focus, confidence, creative thinker, delegator, determination, independent, knowledge seeker, promoter, relationship-builder and risk-taker.

    Have your StrengthFinder results analyzed by Gallup at COSE’s workshop event on August 13.

    This article originally appeared in the June 29, 2015, edition of Small Business Matters.


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