Tag: FMLA

Pregnant Employee

Calling Your Employment Lawyer — Pregnant Employee

I’ve been counseling employers for almost 14 years. One thing that’s become clear over that time is that no one wants to have to call their employment lawyer! But the truth is many companies would be better off if they called more often. It’s usually much cheaper to find out the law and best approach to an employment situation before it leads to litigation or other disputes. This is definitely true when you’re dealing with a complex scenario involving a pregnant employee, for example.

So, what does a call with an employment lawyer sound like?

My actual conversations with clients are confidential, of course. But I can summarize the tone from 1000s I’ve had over the years by way of example. The facts and circumstances of this scenario involving a pregnant employee are purely hypothetical and should not be followed as guidance for any actual situation. Most likely, I would have more background information about the employer before taking this call. Local and state laws also vary and could alter any legal considerations.

“We Have This Employee. . . .”

Client: “Hi, Scott.”

Lawyer: “Hi. How are you? Oh, I know, you’d be better off if you weren’t calling me.”

Client: “Well, nothing personal.”

Lawyer: “No, I get it. None of my clients ever want to be speaking to me about work. It’s the nature of my business. Anyway, how can I help?

Client: “We have this employee. She’s not really working out. She’d had performance issues for a while, and we’d like to move on . . . . But . . . .”

Lawyer: “Yeah, there’s always a ‘But’!”

“She’s Pregnant”

Client: “Afraid so, or I wouldn’t be calling. Before we had a chance to do anything about her performance issues, she told us last week she’s pregnant.”

Lawyer: “I see, well congratulations to her, but you’re worried about trying to let a pregnant employee go?”

Client: “Yes, but, that’s not everything. She had also filed a harassment claim against a co-worker a few months back. And she’s still angry that we didn’t fire the guy she filed it against.”

Lawyer: “Alright. Let’s try to work through this. First, how long has she been working there?”

Client: “Only nine months. She’s our receptionist and also does some of our social media.”

Lawyer: “So, she’s not FMLA eligible yet, but might be eligible for New York Paid Family Leave. Is she full-time?

Client: “Yeah, she works 40 hours. At least, she’s supposed to be working. She spends most of her time on Facebook.”

Lawyer: “You mean doing personal things, not managing the company’s social media.”

Client: “Right. But that’s not the real problem. We should do a better job of policing that and re-directing her. But the bigger problem is that she also answers phones and greets people who come into the office. But her personality is hit or miss. She’s not rude, exactly, but not always friendly either. Plus, she gets messages wrong, forgets to pass them along, etc. We’ve had a few complaints since she started.”

Lawyer: “Has she said when the baby is due?”

Client: “About 3 months from now.”

Lawyer: “So, at that point, she might be eligible for FMLA leave too. Did she get the paperwork on that?”

Client: “Not yet, but that’s one thing we needed direction on. As you know, we have over 50 employees, so we do have people eligible for FMLA. But since she hasn’t been here a year yet, we didn’t know how to handle it.”

Lawyer: “If the leave will begin after she has been there for a year and she meets the other requirements–so if she will have worked 1,250 hours over the past year when her leave starts–then she would qualify for FMLA leave. So you should probably at least give her the FMLA paperwork at this point to avoid a technical violation there.”

Client: “Does that mean we have to keep her on until after her 12 weeks expires?”

Lawyer: “Not necessarily. Even if she becomes eligible for FMLA leave, you don’t have to retain her if you have other legitimate grounds to end her employment. But, of course, it can’t be because of her pregnancy or leave. And even if it isn’t, she could claim it is discriminatory to let her go.”

Client: “So, are we better of waiting until she has the baby and then fire her after she comes back?”

Lawyer: “Not necessarily. That could still be discriminatory or retaliatory.”

“What Should We Do?”

Client: “Okay, you’re the expert. What should we do with her?”

Lawyer: “I know you don’t want to hear it, but like so many of these situations, it depends on various factors and considerations. But it comes down to why you’ve kept her on this long and now want to let her go. If it’s at all related to the pregnancy, then you probably shouldn’t do it. Maybe she’ll take the leave and then not come back, but if she wants to come back, you’d need to let her.”

Client: “We don’t have a problem with her being pregnant. If she were doing her job, we’d be happy to let her take the leave.”

Lawyer: “Then you have to be able to explain why you’re considering letting her go now. Did anything happen recently that’s of particular concern?”

Client: “Remember I mentioned she filed a harassment complaint against a co-worker?”

Lawyer: “Yes. We needed to get back around to that too.”

Client: “Yeah. She claimed a guy who has worked here for 20 years was hitting on her whenever he walked in the building. Now, he’s a salesman who works remotely, so he’s only in a few times a month. She didn’t make any extreme allegations, just that he was too flirty. We investigated it and directed him to stop, and he has.”

Lawyer: “Okay. But has become relevant again?”

Client: “Yes. We need to promote this guy to a director of sales position where he will be in the office full-time. So he’d walk past her every day. Probably multiple times every day. But he refuses to work in the building as long as she’s the receptionist.”

Lawyer: “Is that why you want to let her go now?”

Client: “That’s not the only reason. We know we can’t fire her because the guy she complained about doesn’t want to work in the same building with her. It’s just that we have had these performance issues and they’re not getting better. Eventually, we’d have to let her go. But between the pregnancy and trying to promote the sales guy, we don’t know what the best approach is.”

Lawyer: “Right. I see you’re trying to do the right thing, but there seems like landmines in every direction.”

Client: “Pretty much. So that’s why we called you.”

“Any Alternatives?”

Lawyer: “I understand. Glad you did. Now, let’s see. . . . Just by chance, are there any other open jobs that she might be able to do without the same performance issues?”

Client: “We could try to make her an administrative assistant.”

Lawyer: “But it sounds like she’s already had problems with messages and communication. Would that be a factor in those jobs?”

Client: “Yes. It would just move her from the front desk and maybe solve the problem with the sales guy.”

Lawyer: “I don’t really want you to create new problems in trying to solve this one. If we figured out the right approach, would you consider offering her a severance package?”

Client: “We might be able to pay her a month’s pay and continue her health insurance. I guess that would become an issue for her with the baby and all.”

Lawyer: “Good point. So she’s taking the company’s insurance?”

Client: “Yes. She is. She is married, but they have family coverage through us. He might have it available at work too. I don’t know. Maybe ours is a better deal.”

Lawyer: “Sure. That could be an issue. If he has coverage, then losing yours might not be as bad. But she’s looking at some disability and PFL benefits coming up when she has the baby too if she were still employed. And if he doesn’t have insurance available, they might have to go on COBRA coverage. She would probably get unemployment.”

Client: “Yeah. We wouldn’t contest the unemployment.”

Lawyer: “Okay, how bad has her performance been? Has it gotten any worse lately?”

Client: “It’s just ongoing mistakes. No single recent incident.”

“Severance Package?”

Lawyer: “Alright, overall, I’d say there is some risk of some kind of pregnancy or even retaliation–for the harassment complaint–claim if you fire her now. But that doesn’t necessarily diminish as time goes on. Maybe it would get easier if she does something really bad, but you don’t want that either for operational reasons. Some options include putting her on a formal performance improvement plan and seeing how that plays out or just having a conversation with her now pointing out the performance problems and noting that you have to let her go but will offer a severance package. There’s no perfect solution. If she says no to the severance and you fire her, then she might make a claim.”

Client: “But if she agrees to the severance, then we’d get a release and she couldn’t sue us?”

Lawyer: “Yes, we’d make the severance contingent on her signing a release.”

Client: “Okay, I got it for now. I’ll go back and speak to the managers involved. I’ll probably be giving you another call once we decide how to handle this.”

Lawyer: “Sounds good. I’ll be here. Hopefully, there’s a way to make this work out okay for everyone.”

Client: “Hope so. Thanks.”

 

Some of these calls lead to a straightforward solution. Others, like this hypothetical one, involve balancing risky alternatives. But understanding the risks better allows better decisionmaking and helps avoid obvious missteps.

 

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Top Posts of 2018

Top Posts of 2018

As the year ends, we again review the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2018?

These posts reflect some topics that most interested New York employers in 2018. Do they also suggest what will be top of mind in 2019?

Curious about last year? Click to see what posts made the list in 2017.

2019 New York Minimum Wage

Like last year, our post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law caught readers’ eye.

Remember these changes take effect on December 31, 2018, not January 1st. If you haven’t adjusted accordingly yet, don’t delay any longer!

And there are still more increases scheduled for the years to come. This post includes charts showing those planned increases.

Sexual Harassment Draws More Attention

Well-publicized harassment allegations beginning in October 2017 put sexual harassment prevention on the top of our minds this year. Both the federal and New York state governments took deliberate action to address the unfortunate reality.

In April 2018, the New York Legislature enacted extensive legal requirements aimed at workplace sexual harassment. These included the obligation that all employers in the state adopt written sexual harassment policies and provide annual sexual harassment prevention training to all employees.

Employers were eager to learn more about what the New York Department of Labor would expect from them to meet the policy and training requirements. This made “First Look: NYS Model Sexual Harassment Policy & Training” one of our top posts of 2018. When the DOL updated its guidance closer to the October 9, 2018 effective date, we likewise offered an update.

In October, we also received telling data from the U.S. Equal Employment Opportunity Commission (EEOC). We examined this in “EEOC Releases 2018 Sexual Harassment Statistics.” The EEOC initially reported that after steadily declining over the previous decade, sexual harassment charges went up more than 12% in the fiscal year ending September 2018. In “EEOC: 2018 Sexual Harassment Data Even Worse” we discussed the final numbers showing a 13.6% increase.

The FMLA Is Always a Hot Topic

All the hype in 2017 was about the launch of New York’s Paid Family Leave Program. In 2018, the federal Family & Medical Leave Act (FMLA) turned 25 years old. But employers remain interested in learning more about what it means and how it works.

One of the most viewed posts of the year contrasted these two significant legal regimes. “New York Paid Family Leave vs. FMLA” takes a look at employer coverage, employee eligibility, qualifying circumstances, compensation, and other issues under these laws.

And after a year of learning when an employee might have rights under the New York Paid Family Leave, employers became even more interested in double checking “Who Is an FMLA Eligible Employee?

Drugs in the Workplace

Another issue that hasn’t gone away is employee drug use. Amidst a continuing national debate over the legalization of marijuana, readers were interested in what existing employment laws say about drugs generally.

What Does the Drug-Free Workplace Act Require?

This federal law doesn’t go as far as most people probably think. First, it only applies to businesses that have sufficiently large contracts with the federal government.

The Drug-Free Workplace Act requires these covered employers to adopt a drug-free workplace policy and establish a drug-free awareness program. However, it does not force these companies to fire employees who bring drugs to work or work under the influence of illegal drugs.

Drug Testing New York Employees

Employers in New York (and most other states in the U.S.) have broad rights to test employees for drug use. But many sources of law touch on the subject. That’s probably why this post was so popular with readers trying to determine their rights and obligations in various situations. (It was the #1 most viewed post on the New York Management Law Blog in 2018!)

Vacation Pay in New York

New York employers don’t have to let employees take paid vacations. But if they do offer a vacation benefit, the parameters must be clearly described in writing.

If you haven’t done so recently, now’s a good time to review your vacation pay policy. Use this post as a starting point.

What is Executive Order 11246?

You’d be surprised how many people asked that question in 2018. (I was.) This was actually our second most viewed post of the year. So, what is it?

Signed by President Lyndon B. Johnson in 1965, this Executive Order imposes anti-discrimination and affirmative action requirements upon covered federal contractors. For example, companies with more than 50 employees and a contract with the U.S. government for at least $50,000 must maintain written affirmative action plans.

Although the Executive Order remains in place, the federal Office of Federal Contract Compliance (OFCCP), which oversees Executive Order 11246, has occasionally made the news over the past year or so. It recently announced several new policies on November 30, 2018.

What Are Employees Up To?

Two other top posts of 2018 addressed the reality that your employees don’t always want to be working (at least, for you).

Should You Let Employees Watch the World Cup?

Though less popular in the United States, the 2018 FIFA World Cup was one of the biggest global events of the year. For one month this summer, fans around the world cheered their favorite soccer nations. Before the contest began, we considered some pros and cons of letting employees watch the matches during work time.

Your Employee Has a Side Hustle

Many employees with regular full- or part-time jobs are also working on a personal business venture on the side. This is not necessarily good or bad in itself. Situations vary. But this post raised many legal considerations for employers ranging from conflicts of interests to federal leave laws.

Don’t Stop at the Top Posts of 2018!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2019.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to our monthly email newsletter. It not only recaps our recent blog posts, but also announces upcoming free webinars that help you stay in compliance.

See you in 2019!

FMLA Eligible Employees

Who Is an FMLA Eligible Employee?

To get really technical about it, there a difference between an FMLA eligible employee and an employee with an FMLA qualifying circumstance. The federal Family & Medical Leave Act (FMLA) generally allows eligible employees to take up to 12 weeks of unpaid leave each year related to the birth or adoption of a child, serious health conditions, and certain family-member military-related situations. But not all employees in these covered situations are protected by the law in the first place.

So, let’s take a look at the requirements for being FMLA eligible.

[The FMLA differs from state laws, such as New York’s Paid Family Leave Benefits Law. New York employers can click here to contrast the two.]

Work For a Covered Employer

In many respects, FMLA eligibility is beyond an employee’s control. This primarily comes down to the size of a company’s workforce. Private sector (non-governmental) employers with less than 50 employees are not subject to the FMLA. Their employees have no leave rights under the law.

The FMLA covers all public agencies, including federal, state, and local governments, and schools even if they have fewer than 50 employees. However, that doesn’t change the eligibility for employees working for governmental employers under that workforce threshold . . . because of the next requirement.

Work within a 75-Mile Radius of 50+ Employees

To be FMLA eligible, an employee must work at a location where their employer has at least 50 total employees working within a 75-mile radius.

Sometimes this is an easy requirement to measure. Many companies have more than 50 employees working at the same location. If you don’t, however, you might need to get out a map (probably digital these days) to check whether employees are FMLA eligible.

And how do you measure those 75 miles? Here’s what the Department of Labor’s regulations have to say about that:

“The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).”

There are other potential complexities. Some employees have no fixed work location. Then, per the regulations, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”

Have Worked for the Employer for at Least 12 Months

Even in large workplaces, employees don’t become FMLA eligible their first day on the job. Not even the first month . . . or the first year. Instead, they must remain employed for at least 12 months before earning FMLA protections.

However, the 12 months don’t have to be consecutive. Time off, or even formal termination of employment, doesn’t restart the clock. An employee with a year or more of service who quits but then returns to the company later might satisfy this requirement on their first day back. And an employee who first worked less than 12 months before leaving and returning can count the previous period of employment. Except . . . if the break in employment lasted at least 7 years, then prior employment doesn’t count (barring special circumstances).

But gaps in employment will often still affect FMLA eligibility, because an employee must . . . .

Have Worked for the Employer for at Least 1,250 Hours in the Past Year

This requirement means that many part-time employees are not FMLA eligible. It also limits the initial eligibility of employees returning to a company after a break in employment.

The hours requirement looks backward from the date leave begins. In other words, on the day the leave will start, has the employee worked 1,250 hours in the past 12 months. If not, they are not FMLA eligible. However, such employees might be able to delay the leave (assuming a non-emergency situation) until they will have worked enough to become eligible.

Sometimes this eligibility condition prevents employees from taking FMLA leave in consecutive years. Previous time off (under the FMLA or otherwise) might mean that even when an employee would otherwise regain annual FMLA leave time, they will no longer (at least initially) be eligible to use it.

Understanding Which Employees Are FMLA Eligible

If your company is subject to the FMLA, then you must be prepared to evaluate whether a particular employee is FMLA eligible.

Employees don’t have to use any magic words in requesting leave under the FMLA. Asking for time off for a reason that would qualify for leave (e.g., childbirth, surgery, etc.) is usually sufficient to shift the burden to the employer to follow the FMLA. This includes determining whether the employee is FMLA eligible and notifying the employee of their eligibility and rights.

Employers with limited experience applying the FMLA or those facing less-than-straightforward scenarios should consider consulting with an experienced employment lawyer on questions of employee eligibility and other legal parameters.

 

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