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August 30, 2013

HR Fact Friday: DOL Issues Guidance on FMLA and Same-Sex Spouses

Filed under: FMLA — Tags: , , 6:00 am

The United States Department of Labor (DOL) recently issued guidance on how the Family and Medical Leave Act (FMLA) will apply to same-sex spouses of covered employees. The guidance expressly confirms that same-sex spouses of such employees will fit within the definition of “spouse” under the law for those employees who live in Washington DC or one of the 13 states that recognize same-sex marriage. These states are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

The new DOL guidance did not address the issue of whether same-sex spouses of private business employees who live in states that do not recognize same-sex marriage are covered spouses under the FMLA, but right now, such persons probably are not included within the FMLA definition. The FMLA statutory language defines spouse as “a husband or wife, as the case may be.” DOL’s FMLA regulations elaborate and define spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Thus, DOL could act to change its regulations and define a spouse more broadly as anyone validly married under any state law, but that will take some time (and paperwork) to accomplish.

The federal Office of Personnel Management also recently announced that the federal government will consider all same-sex spouses of federal employees to be FMLA spouses regardless of where the federal employees live. The Department of Defense is expected to adopt the same approach for military personnel.


August 28, 2013

A Good Reason to Document!

The law firm Ogletree Deakins recently reported on a 4th U.S. Circuit Court of Appeals case that illustrates just how important it is to have good documentation.  The case, Mercer v. The Arc of Prince Georges County, Inc., sheds new light on performance reviews, the Family and Medical Leave Act (FMLA), and termination of employment.

According to the records, Mercer worked for “The Arc,” a nonprofit organization, in a position that required her to process applications, renewals, and redeterminations for benefits under the Food Stamp Program and Social Security.  Early in 2009, Mercer took medical leave, which put co-workers in a position to perform her duties, where they discovered that some individuals that were food stamp eligible were not receiving benefits.  When Mercer returned, she was instructed to take care of those clients.

Several months later, she was given her annual performance appraisal, in which she rated ‘satisfactory’ marks in all categories, but one, which was rated ‘above average.’  A couple months after that, the problem of individuals still not receiving their benefits came to light, yet again.  She was directed to take care of those clients.

Early in January, 2011, she suffered injuries in a motor vehicle accident and utilized FMLA.  Again, co-workers found that her job was not being done properly and that many individuals were still not receiving their benefits.  After her return, an investigation ensued and she was subsequently terminated.

Mercer alleged that The Arc interfered with her right to use FMLA and that her termination was a pretext for retaliation based upon her use of FMLA.  She was unable to prove either claim.  Of interest to employers is that the Court’s findings demonstrated that even though she had positive performance reviews, this “did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercer’s FMLA leave.”  Helpful, too, was The Arc had detailed documentation that specifically noted the errors of Mercer.  Another fact of note is that the co-workers who discovered the unpaid clients, were not the decision-makers in regard to her termination.

The importance of concise documentation can never be minimized.  Employers do well to document dates, times, specific information of the indiscretion/errors, all parties responsible, and persons making the discovery.  Arming themselves with proper documentation has saved many employers a lot of time, money, and unfavorable publicity.


Source:  Danaher, Maria, Ogletree Deakins – Pittsburgh Office. “Positive performance reviews do not negate employer’s ability to fire employee upon discovery of previously unknown poor performance.”  August 19, 2013.


August 23, 2013

HR Fact Friday: Employee Handbook Provisions to Avoid or Use with Caution

I recently read an interesting article with a nice summary of handbook provisions to avoid or use with caution. The article listed clauses: (1) suggesting employment is permanent or more guaranteed after a probationary period; (2) limiting employee rights to act in concert (e.g. prohibiting employee discussions about working conditions or wages); (3) outlining dress codes; (4) regulating off duty conduct; and (5) addressing hiring of spouses and nepotism (because some states prohibit discrimination based on things like marital status. Employers should also remember that handbooks should have clean and clear contract disclaimers and at-will statements and should include policies prohibiting discrimination, harassment and retaliation. Handbooks also should consider the impact of employing persons in multiple states because one state may have different or more thorough laws than the laws of another state. As with settlement agreements (discussed above), employee handbooks have legal consequences. Done right, the consequences can be helpful to an employer in dealing with HR law.

For information on how to create a legally compliant and complete employee handbook and company policy manual utilizing HRN Performance Solutions, HR Suite system, check out:


August 21, 2013

Amazing New One-Stop Resource for Businesses

Filed under: Hiring & Jobs — Tags: , 6:00 am

On October 28, 2011, the President issued a challenge to government agencies to think beyond their organizational boundaries in the best interest of serving America’s business community, and start thinking and acting more like the businesses they serve. He directed the creation of BusinessUSA, a centralized, one-stop platform to make it easier than ever for businesses to access services to help them grow and hire.  BusinessUSA uses technology to quickly connect businesses to the services and information relevant to them, regardless of where the information is located or which agency’s website, call center, or office they go to for help.

Among some of the resources is the “Learn about New Health Care Changes” option.  This feature provides valuable and timely information about the changes taking effect October 1, 2013, that will provide many individuals, self-employed, and small businesses a new way to shop for private health insurance through the Health Insurance Marketplace and its Small Business Health Options Program (the SHOP Marketplace).  Other resources provide tips to start a business, how to grow the business, help with hiring, resources for veterans, and information on taxes and credits.

The beta version of the BusinessUSA website will continue to evolve in the coming weeks and months and is seeking feedback as they add new features and content, and as they open additional channels of communication such as call centers, email, and social media.  It will be interesting to watch this website grow and become an even more comprehensive business tool.

Source:  BusinessUSA –


August 16, 2013

HR Fact Friday: Is Obesity a Disability Under the ADA?

Filed under: EEO — Tags: , , 6:00 am

The American Medical Association (AMA) recently designated obesity as a disease, calling it a “multi-metabolic and hormonal state” that leads to a number of health problems. This determination likely will mean that health insurers will rethink coverage for various obesity-related claims, but it also may have implications for employers. For example, commentators are now asking the question of whether courts and the Equal Employment Opportunity Commission (EEOC) will conclude that obesity is a disability under such anti-discrimination laws as the Americans with Disabilities Act (ADA). At least one commentator predicts the answer to this question will be “yes.”

The EEOC is on record stating that morbid obesity is a physical impairment that may be a disability under the ADA. Moreover, Congress amended the ADA in 2008 to broaden the definition of a disability to include more conditions and more persons with impairments. Thus, some believe the courts will soon find more circumstances where the newly-recognized disease of obesity is a basis for coverage under the ADA. HR professionals and supervisors need to keep an eye on this issue. Of course, no one should be fired because he/she is obese, but employers need to be aware that if you are firing an obese person a new claim under the ADA is possible and you should make sure the termination is documented, justifiable, and consistent with other business practices. Employers also may face requests for accommodations based on obesity and must be ready to analyze/deal with the same.


August 15, 2013

What Does a Sump Pump Have to Do with HR?

Filed under: General HR Buzz6:00 am

When I bought my house 1-1/2 years ago, I followed the advice of my realtor and had a home inspection conducted.  During the inspection, the inspector told me that I should consider adding tubing to extend the sump pump drainage out further away from my home.   I knew this was probably a good idea (consequences could be devastating – a basement full of water!) but I didn’t really know how to do it, I didn’t have time to do it, and it wasn’t raining, so I didn’t have any urgent need to do it.

Occasionally, we would get rainfall, and I would think to myself, “I really should get that sump pump drainage extender,” but again, I put it off.

Fast forward to the past few weeks where we’ve had more rain than we have had during the month of July in over 100 years and I’ve now got a small pond around the backside of my house.  I can no longer put this off; I MUST do something about this sump pump!

Nothing has changed, I still don’t know HOW to do it, but I know it needs to be done.

So, off I go to Lowe’s home improvement store.  With the help of a “consultant,” I get all of the equipment needed for the task, get it home and it doesn’t fit.  I failed to measure the PVC pipe and took the comment a friend made, “Looks like a 2 inch PVC.”  When I took it back (after measuring) and got the correct size, it was a 2 minute job to hook up.  My kids and I went and got ice cream and when we returned home an hour later the water had receded!

Have you ever had a situation in your company that you knew needed attention, but the pain it caused wasn’t great enough to address it yet?  Perhaps, you have a problem employee that needs to be cut loose, but you procrastinate until their antics rise to a dangerous level causing performance and morale to suffer.  After you tackle the problem, you realize it took mere minutes to resolve the problem and terminate their employment.

Will it take a complaint or lawsuit against your company to force your hand to update policies, train your employees about harassment, or simply create a solid performance management process? The list goes on!  All of us have to learn to prioritize and not procrastinate the important things that could devastate our company with productivity or monetary loss.  Sometimes we realize that having the right tools and a little time investment on our part will pay off big in the end.  Just like the extender for the sump pump took little time and effort, but went a long way to protect my investment and give me peace of mind!


August 14, 2013

More New Disabilities

Filed under: HR Consulting9:18 am

Just weeks ago the American Medical Association pronounced that obesity is now considered a disease.  The definition being anyone with a Body Mass Index of 30 or more.  Now, we have a few new disabilities with which to contend and employers will want to listen up!

The American Psychiatric Association (APA) recently began recognizing the following as disabilities that may also have protections under the Americans with Disabilities Act (ADA) the same as obesity:

  • binge eating disorder;
  • social communication disorder;
  • disruptive mood dysregulation disorder; and
  • hoarding

These newly recognized disabilities will likely affect the way employers manage the ADA and the federal Family and Medical Leave Act (FMLA). The ADA requires employers to engage in an interactive process with disabled employees to discuss their possible need for reasonable accommodations without creating an undue hardship for the employer.  In certain circumstances, a disabled employee’s disability may render then unable to perform the essential functions of their job.  The reasonable accommodation afforded to such a disabled individual may require reassignment to other duties. In the way of accommodation, the FMLA may require that an employer allow time off for the employee to seek treatment.

Employers need to stay alert to these new classifications and any guidance that may be issued.  In the meantime, not every ailment or condition is a “substantial impairment of a major life activity” under the ADA, nor may they even be “serious health conditions,” for FMLA purposes.  By ensuring procedures are in place for medical certifications and even second opinions for conditions you may not be familiar with, will help you prepare for addressing your employees’ needs and protecting yourself.

If your employment policies need to be reviewed, please , and we will be happy to assist you!



August 9, 2013

HR Fact Friday: Court Strikes DOL 2010 Letter on Loan Officer Classifications

Filed under: Salaries & Pay — Tags: , 6:00 am

A federal appeals court has invalidated a 2010 United States Department of Labor (DOL) opinion letter that required financial institutions to classify their mortgage loan officers (MLOs) as nonexempt under the Fair Labor Standards Act (FLSA). The 2010 letter had reversed previous DOL statements that MLOs are exempt employees. The federal appeals court struck down the DOL’s procedure for concluding that MLOs were nonexempt, but it did not issue an opinion on the substantive merits of the issue. Thus, DOL can still reach the same conclusion if it now follows the right procedure of announcing a proposed rule, getting comment on the same and then finalizing the rule. DOL also may appeal the ruling. Moreover, Plaintiff’s lawyers can still sue employers if they classify MLOs as exempt, and the 2010 DOL letter, while invalidated, still paints a path for such lawsuits. Finally, in response to the 2010 letter, many financial institutions re-classified their MLOs as nonexempt. There could be a lot of disruption changing them to exempt now when it is not absolutely clear that such a classification will stick. All this suggests that financial institutions should probably leave their MLOs classified as nonexempt for the time being and see how all this shakes out in the next few weeks and months.


August 7, 2013

BTW Texting May Not Be Your Best Option!

Filed under: Communication,FMLA,General HR Buzz9:06 am

Remember when picking up the phone and having a two-way conversation with your boss was the norm?  In our quest to keep up with the constantly evolving technology, texting has become a more frequent and accepted method of communication, that is unless you are requesting leave under the Family and Medical Leave Act (FMLA).

Recently an appellate court ruled that a text message is not sufficient notice to an employer of an employee’s need for FMLA.  Chrisanne Lanier brought suit against the University of Texas Southwestern Medical Center (UTSW) alleging various theories of recovery, including FMLA.

On an evening Lanier was scheduled to be on-call, she sent a text message to her supervisor, Leary, to inform him that her father was in the emergency room and that she would be unable to perform her duties that night.  Leary made other arrangements for coverage for the evening.

When she failed to respond to an operator’s call on her make-up week, Leary was notified.  The following morning Leary confronted Lanier about her having abandoned her duties by not responding.  Lanier expressed (explicitly, but not in a text message!) how upset she was with Leary in regard to her father’s heart attack.  She turned in all her equipment and stormed out.  She went directly to the UTSW Employee Assistance Program office on campus, unbeknownst to Leary and other management.  Because of her actions, Lanier was told the university accepted her resignation.

Regarding her claims of interference and retaliation, the court focused on whether Lanier had given proper notice of her intention to take FMLA leave.  Although an employee need not use the phrase “FMLA leave,” she must give notice that was sufficient to reasonably apprise her employer that her request to take time off could fall under the FMLA.  An employer may have a duty to inquire further if statements made by the employee warrant it, but “the employer is not required to be clairvoyant.”  Based on the facts and circumstances in this case, the court found that it would be unreasonable to expect Leary to know that Lanier meant to request FMLA based on her single text message request to be relieved of on-call duty for one night.  Summary judgment was awarded to UTSW.

Employers do well to have proper reporting procedures, including the desired method of communication, in place for FMLA.  Each individual employee’s circumstances will differ, but with knowledgeable Human Resources and well-trained supervisors that consider the facts of each case on its own merit, your chances for avoiding this type of litigation will be much improved!


August 2, 2013

HR Fact Friday – August 1-7 is World Breastfeeding Week

Filed under: Employment Law,General HR Buzz — Tags: , , , 6:00 am

August 1 through 7 is World Breastfeeding Week (WBW). The observance highlights the importance of breastfeeding and offers advice on how families, community organizations, and employers can support nursing mothers.

As described on, employed nursing mothers face a number of challenges at work. The opportunities for support are as varied as the work women do, but usually involve facilitating mother-baby contact or expression and storage of breast milk.

To help employers understand what they are required to provide nursing mothers, as well as tips on setting up a breastfeeding-friendly environment, refer to the links below supplied by

Creating a breastfeeding-friendly environment not difficult for employers, says expert—This Q&A covers topics including privacy, amenities for nursing mothers, and how to get upper management support.
FLSA and nursing mothers at work: Are you providing space for lactation breaks?—The Fair Labor Standards Act (FLSA) now requires employers to provide adequate private space for nursing mothers to express breast milk at work. Here’s what employers need to know. For more on this topic, read:

FLSA law now protects ‘lactation breaks’

Advice for employers required to provide lactation breaks