NEW HORIZONS IN FMLA LEAVE: PARENT-TEACHER CONFERENCES?

By Elizabeth K. Dorminey (ekd@wimlaw.com)

Is a parent entitled to use FMLA leave to attend a special education parent-teacher conference? A recent Opinion Letter from the U.S. Department of Labor says “yes.”

In a letter published August 8, 2019 (FMLA2019-2-A), Wage and Hour Division Administrator Cheryl M. Stanton responded to a formal request for an opinion on this question. The writer explained that he was the father of two children with FMLA-qualifying serious health conditions. His wife’s employer had approved her taking FMLA leave intermittently to take the children to medical appointments but declined her request to take intermittent FMLA leave to attend Committee on Special Education (CSE) meetings to discuss the children’s Individualized Education Programs (IEP) at their school. The children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and meetings are held four times a year to review their educational and medical needs, well-being, and progress. The writer wanted to know if his wife may insist on intermittent FMLA leave to attend these meetings.

Based on the facts provided in the letter, the Administrator concluded that the wife’s need to attend CSE/IEP meetings was a qualifying reason for taking intermittent FMLA leave. The Administrator found that the meetings were necessary to “care for a family member … with a serious health condition,” as defined in 29 C.F.R. § 825.100(a); and that “to care for” includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). That language usually is applied to making medical decisions on behalf of a hospitalized family member or arrangements to find suitable childcare for a child with a disability, even if the decisions do not involve a facility that provides medical treatment. In a previous opinion letter, WHD had found that an employee was entitled to take FMLA leave to attend meetings related to a parent’s health condition. WHD Opinion Letter FMLA-94, 1998 WL 1147751, at *1 (Feb. 27, 1998).

Even though the CSE/IEP meetings are focused on education, not health care, the Administrator found that attending the meetings was essential to the wife’s ability to provide appropriate physical or psychological care to the children and that her participation would help her make medical decisions concerning the children’s care. Bottom line: the wife is entitled to claim intermittent FMLA leave to attend the meetings.

Point/Counterpoint

    This is an interesting and controversial letter and provoked considerable debate among the firm’s attorneys. Intermittent leave, often taken in small increments, can be an administrative challenge for employers who must track leave use and may need to reschedule other workers to cover for an absent employee. The FMLA’s focus has been on dealing with illness and disability, the exception being maternity leave or leave for adoption or foster placement, but this letter suggests that the “medical” aspect needs only to be incidental: the focus of these meetings was on the children’s education, not health care. Will this throw wide open the gates for employees to claim leave for a broader scope of activities, on the argument that they are tangentially related to health and well-being? When does an underlying “educational” issue becomes a health issue? Taking a child to the doctor for dyslexia testing or for counseling is covered by the FMLA. Shouldn’t meetings with teachers who will be implementing the doctors’ orders be covered as well?

Mandatory unpaid leave to attend parent-teacher conferences has been adopted in several States. Nevada requires an employer to grant unpaid leave to a parent, guardian, or custodian of a child who is enrolled in a public school for up to 4 hours each school year to attend parent-teacher conferences, school-related activities during regular school hours, to volunteer at school activities during regular school hours, and to attend school-sponsored events. California allows up to 40 hours of unpaid leave annually; the District of Columbia allows 24 hours each year. Illinois allows up to 8 hours each school year, in 4-hour increments, Massachusetts 12. Minnesota and Louisiana each allow 16; North Carolina matches Nevada at 4. Rhode Island offers 10. Vermont matches D.C. at 24.

CONCLUSION

While this is a somewhat unusual situation, it reminds us that employers need to be proactive in learning the facts surrounding an employee’s request for FMLA leave. The notice and certification requirements were meant to foster a dialogue between employer and employee to enable the employer to determine if a leave request meets the requirements under the Act. Employers should use those tools to carefully analyze FMLA-related leave requests. When an employer is in doubt as to whether a request for FMLA leave should be granted, it is best to contact knowledgeable legal counsel for advice.

Elizabeth Dorminey is a principal in the Athens office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. where she is a member of the Wage and Hour practice team. She can be contacted at ekd@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The Importance of Verifying Employment Eligibility In a Legal Manner

By Kathleen J. Jennings (kjj@wimlaw.com)

There is a right way and a wrong way to verify employment eligibility of new employees. A McDonald’s franchisee will pay in excess of $91,000 in a settlement with the Department of Justice (DOJ) because it used the wrong way. Specifically, the company routinely required non-citizens to produce documents issued by the Homeland Security Department during the onboarding process, even after they produced valid, legally acceptable documents to prove they were authorized to work. According to the DOJ, the company’s practice came to the DOJ’s attention after an employee complained that she was required to produce a green card despite having shown her employer a valid driver’s license and unrestricted Social Security card.

This is the third immigration related settlement reached by DOJ in the past week, so it would be safe to say that DOJ is aggressively enforcing anti-discrimination laws related to immigration. At the same time, ICE is increasing its own workplace enforcement efforts to remove persons who are not eligible to work in the U.S. What this means for employers: it is extremely important to accurately and legally verify employment eligibility for all employees.

What is the right way to verify employment eligibility? The employer and employee must properly complete USCIS Form I-9. To establish both identity and employment authorization, a person must present to their employer a document or combination of documents from List A, which shows both identity and employment authorization; or one document from List B, which shows identity and one document from List C, which shows employment authorization.

LIST A: Documents That Establish Both Identity and Employment Authorization

All documents must be unexpired.

  1. U.S. Passport or U.S. Passport Card
  2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
  4. Employment Authorization Document (EAD) that contains a photograph (Form I-766). Form I-766 expired on its face combined with Form I-797 based on an automatic EAD extension in certain circumstances qualifies as unexpired Form I-766;
  5. For a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

    LIST B: Documents That Establish Identity

    All documents must be unexpired.

    For individuals 18 years of age or older:

  7. Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  8. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  9. School ID card with a photograph
  10. Voter’s registration card
  11. U.S. military card or draft record
  12. Military dependent’s ID card
  13. U.S. Coast Guard Merchant Mariner Card
  14. Native American tribal document
  15. Driver’s license issued by a Canadian government authority

    For persons under age 18 who are unable to present a document listed above:

  16. School record or report card
  17. Clinic, doctor, or hospital record
  18. Day-care or nursery

     LIST C: Documents That Establish Employment Authorization

    All documents must be unexpired

  • A Social Security Account Number card unless the card includes one of the following restrictions:
    • NOT VALID FOR EMPLOYMENT
    • VALID FOR WORK ONLY WITH INS AUTHORIZATION
    • VALID FOR WORK ONLY WITH DHS AUTHORIZATION
  • Certification of report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen Identification Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security.

    Are you completing Form I-9 correctly? Wimberly Lawson can audit your I-9 Forms and related documents to verify your compliance with federal law.

    Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

    ©2019 Wimberly Lawson

    The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

ICE, ICE, Baby

by Kathleen J. Jennings (kjj@wimlaw.com)

With the threat of  U.S. Customs and Immigration Enforcement (ICE) raids in the very near future, we are repeating advice from an older blog post so that companies know what to do if ICE shows up at the door.

What is a company to do if ICE agents show up at a facility?

The first question that you need to ask is this: Do you have a warrant?

If the answer to that question is yes, then the company’s options are limited.

Review the warrant and contact counsel immediately. ICE is a federal law enforcement agency, and a company, like a person, needs to ensure that its 4th amendment (against unreasonable search and seizure) and 5th amendment (against self-incrimination) rights are protected.

Does the warrant seek documents or information? It is absolutely the job of the company’s counsel to respond or possibly even move to quash the warrant.
If there is no warrant, then the company has more options in responding.

Without a warrant, law enforcement cannot enter a company’s private property without the permission of an agent of the company. The company should designate in advance the person or persons who are authorized to interact with members of law enforcement on behalf of the company.

If there is no warrant or court order, the company does not have to provide any documents or information to ICE. The company may voluntarily provide information, such as Motel 6 did in Arizona, when it turned over guest logs to ICE.

If the company has a collective bargaining agreement, does the collective bargaining agreement say anything about the level of cooperation the company can provide to ICE? Some unions are seeking inclusion of provisions in collective bargaining agreements that would limit the employer’s ability to cooperate with ICE. Some model provisions restrict an employer from letting ICE agents into the workplace unless they possess a valid judicial warrant. These model provisions also ban the auditing or sharing of workers’ I-9 employment eligibility verification forms or checking status using the voluntary E-Verify program, except where required by law, from. As enforcement efforts become more aggressive, look for more unions to propose this type of contract language.
[Some unions, such as Unite Here!, which represents many hospitality workers, are also providing training to workers in the handling of encounters with ICE.]

What are the possible future consequences? Will a lack of cooperation result in more federal law enforcement pressure on the company? Or will cooperating with ICE result the loss of a substantial number of workers or unfavorable publicity?

Pro Tip: However a company chooses to respond to a visit from ICE, it should have a written plan of action in place well before anyone from ICE appears at the door. Review that plan with counsel to ensure that the company’s rights are protected.

Kathleen Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She has also handled criminal matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson
The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Rethinking the Use of Pre-Employment Drug Tests to Weed Out Applicants

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, Illinois became the 11th state to pass legislation to legalize recreational marijuana. New York may be the next state to pass similar legislation. In addition, 33 states (including Georgia) and the District of Columbia have passed laws legalizing the use of medical marijuana. With all the legal weed out there, should employers continue to drug test applicants (and employees) for the presence of THC (a marijuana metabolite)?

First and foremost—be aware that these state laws have no impact on federally mandated testing of applicants and employees, most notably, drug testing required by the Department of Transportation (DOT). To that end, the DOT has issued the “Recreational Marijuana” Notice: “We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.” As far as federal law is concerned, marijuana use is illegal.

For those applicants and employees that are not subject to federally mandated drug testing, some employers are discontinuing drug testing for the presence of THC. Some of those employers are doing so in order to avoid violating state laws: 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have statutes that explicitly prohibit employment discrimination against medical marijuana users. New York City passed an ordinance banning employers from conducting preemployment tests for medical marijuana. Nevada has recently passed legislation (awaiting the governor’s signature) that would prohibit an employer from rejecting a job candidate for testing positive for marijuana. We are also seeing court cases where the courts have found in favor of protecting medical marijuana users against discrimination.

Furthermore, some employers have stopped screening applicants for THC because they find that they are losing too many otherwise acceptable job candidates.

One of the biggest challenges for employers is determining if an employee is under the influence of marijuana while working. THC can stay in a person’s system for as long as 3 weeks. Current drug tests cannot accurately pinpoint when an individual actually ingested marijuana. Obviously, employers do not want their employees to be stoned while working, especially if they are operating equipment, driving, or providing health care services. If an employer has a suspicion that an employee is under the influence of marijuana while working, it is important to carefully document the reasons supporting that suspicion, such as odor and employee appearance and behavior, before sending the employee home or taking further action.

This is a very dynamic area of the law, and it is important to stay up to date on the laws of the states where your company does business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Responding to Social Security No-Match Letters: What Employers Need to Know

By Kathleen J. Jennings (kjj@wimlaw.com)

Since March 2019, the Social Security Administration (SSA) has sent out approximately 575,000 Employer Correction Notices, generally known as “No-Match” letters. What is a “No-Match” letter? It is a letter from the SSA informing an employer that it has at least one employee whose name and Social Security number combination on a filed W-2 do not match SSA records. The letters inform employers that they need to take corrective action but warn them not to “use this letter to take any adverse action against an employee.”

In a new twist, the recently sent letters instruct employers to register for the agency’s Business Services Online. This raises some concerns about whether SSA will share online information with other federal agencies, such as ICE. For now, however, SSA says that such sharing is not likely because data from W2s is tax information and disclosure is governed by the Internal Revenue Service.

What should an employer do if it receives a No-Match letter for one of its employees?

  • First, check your employment records to see if there is a typographical error. Did someone input a number incorrectly?
  • Second, if there is no error on the employer’s part, then the employer should inform the employee of the situation and ask the employee to bring his/her social security card to an HR representative for verification. The HR representative should document the meeting and make a copy of the card.
  • Third, if the social security card matches the information on the No-Match letter, the employer should direct the employee to resolve the situation with the SSA. This should be done in writing.
  • While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match than initially contemplated.

Employers should not jump to conclusions when they receive these letters. If an employee’s name and SSN don’t match SSA’s records, this does not necessarily mean the employee is not authorized to work. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. Because of this, an employer should not assume that an employee referenced in a no-match letter is not work authorized and should not take adverse action against the referenced employee based on that assumption. Such action could subject the employer to liability for discrimination under the antidiscrimination provision of INA. When in doubt, consult with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The Fair Credit Reporting Act Needs Your Respect

By Kathleen J. Jennings (kjj@wimlaw.com)

The Fair Credit Reporting Act (FCRA) is one of those laws that often fails to get the respect it deserves. Just the sound of it—it seems to apply to credit reports, so why would an employer need to worry about it? Because the FCRA can also apply to applicant and employee background checks.

A recent decision from a federal court in New York shows us the potential legal consequences of failing to comply with the FCRA. In Garcia v. Execu , S.D.N.Y., No. 17-cv-9401, 2/19/19, Mr. Garcia was terminated on the second day of work because a criminal background check showed that he had open criminal charges. Mr. Garcia said the charges had been dismissed. His termination stood.

So Mr. Garcia filed a class action against the company that hired and fired him, alleging that it violated the FCRA by failing to provide him a copy of his consumer credit report or a written description of his FCRA rights before taking an adverse employment action against him based on the report. The federal district court denied the employer’s motion to dismiss the class allegations. Now the company must defend a class action simply because it failed to provide a copy of Mr. Garcia’s background check to him. This is an expensive lesson for that company.

Here’s what employers need to know about the FCRA: when a company runs background checks through a company in the business of compiling background information, it must comply with the FCRA. Specifically, the FCRA requires the following before the company seeks the background check:

  • Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
  • If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and got their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • won’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Additionally, when taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has the following additional requirements:

  • Before you take an adverse employment action, you must give the applicant or employee:
    • a notice that includes a copy of the consumer report you relied on to make your decision; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.

(By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.)

  • After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report;
    • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

When Love is in the Air At Work

By Kathleen J. Jennings kjj@wimlaw.com)

Happy Valentine’s Day! This holiday is good time for companies to check their policies on workplace romance and see how they are working.

What are the essential elements of a workplace romance policy?

First, transparency. Workplace romance is going to happen, and the employer can better manage workplace relationships when it knows they exist. A good policy will require employees, particularly upper managers, to disclose romantic relationships with other employees. Why is this any of the company’s business? Because the company needs to ensure that someone is not in the supervisory chain of command of an employee he or she is dating. When an employee has authority over an employee that she or she is dating, that differential in power may be portrayed as sexual harassment when the relationship fails. There may also be risk of disclosure of company confidential information to a subordinate or employee who is not authorized to receive the information during “pillow talk.”.

Because transparency is important, there should be real consequences for employees who fail to report workplace relationships. For example, it has been reported recently that Bridgewater Associates, the $160 billion investment, fired a senior manager for failing to disclose a relationship with a colleague in accordance with company policy.

Second, the policy should make it clear it is not acceptable for a supervisor to date a subordinate employee over whom he or she has authority.

Third, the policy should remind employees who are dating that their behavior at work should always remain professional. No PDA in the workplace, please. Also—no hanging around your boo’s office all day long.

Fourth, the policy should also remind employees of the company’s policy against sexual harassment, and that they may report conduct that they consider to be unwanted and inappropriate.

Consider this: some estimates suggest that 70% of workers have had an office romance, with as many as 25-50% turn into marriage (as cited in Wilson, 2015). Employers cannot prevent romance in the workplace, but they can manage it so that it does not undermine employee morale and productivity.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.