Employment Law for Private Employers and Local Goverments


2011 NLRB Rule on Accelerated Elections

dcbf3954 : August 26, 2013 12:28 pm


The National Labor Relations Board’s new 2011 final rule regarding “quickie” certification elections caused much concern among private employers.  Issues confronting employers include much faster election,  truncated election campaigns, lost appeal rights, consolidation of some legal appeals available and limitations on the introduction of evidence at hearings. Michael has written a guide for employers that can be reviewed  here.

In a recent development, the 2011 Rule has been struck down after the United States District Court for the District of Columbia found it was implemented without a proper  quorum.


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FMLA Compliance: Employee’s behavior revealing she suffered severe emotional stress and anxiety may constitute a “report” of the need for FMLA Leave.

dcbf3954 : August 26, 2013 12:27 pm

An employer cannot escape legal liability under the FMLA by merely firing someone who takes leave for a condition that ultimately may be diagnosed as a serious health condition requiring FMLA leave before the employee formally completes an FMLA Leave request. This was a mistake that New Hope Minnesota-based St. Therese of Hope Long Term Care facility made when it terminated nurse Ruby Clinkscale the day after she experienced such a severe emotional melt-down in the Human Resources office which that she requested her employer to call an ambulance. The melt-down came after she was told that she would be terminated and reported for patient abandonment if she refused a work assignment requiring her to “float” to a nursing unit on which she had received no training. The Human Resources Director told her to go home, and that the employer would discuss the assignment the next day. . . .

Read the Rest Here.

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Protection of Employers from Off the Clock Work Time

dcbf3954 : August 26, 2013 12:27 pm


By Michael A. Caldwell

A new decision by the United States Court of Appeals for the Sixth Circuit creates an opportunity for employer’s to manage their FLSA liability risks:

The employer in White v. Baptist Memorial Health Care Corp. made automatic deductions for meal breaks of its hourly employees. The hospital’s policy also made clear that, as required by the FLSA, it would compensate employees if they had to work during a meal break. Nurse Margaret White signed an acknowledgement of the policy, under which she was required to record her time on an “exception log” if a meal break was interrupted by work. The hospital also had a procedure for employees to report payroll errors such as failure to pay for recorded time.

On several occasions, Nurse White was not paid for time that she had submitted on the exception log. When she did report these problems, she testified that the hospital corrected the errors immediately. But she did not always report payroll problems, despite knowing the procedure for doing so. Eventually, she even stopped using the exception logs.

When Nurse White sued for unpaid time under the FLSA, the hospital raised her failure to utilize the procedures for recording interrupted meal breaks and for correcting payroll errors. The Sixth Circuit agreed and stated that “if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.” The court also noted a lack of any evidence to suggest that the hospital discouraged employees from using the reporting procedures.

Just as all employers should have a written policy requiring employees to report harassment and discrimination, employers should explicitly require hourly employees to record all time worked and to report any payroll errors immediately. Likewise, effective procedures should accompany those policies. Without such measures, employers have limited ability to defend against a current or former employee who claims to have done off-the-clock work.


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FMLA, ADA and The Duty to Accommodate – When is Enough Enough?

dcbf3954 : August 26, 2013 12:25 pm

By Michael A. Caldwell

Unquestionably, when it comes to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?

We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.

The Eleventh Circuit Court of Appeals offered some guidance recently in Santandreu v. Miami Dade County. When an employee is uncertain about the duration of his condition, a leave of absence is not a reasonable accommodation:

In the instant case, Santandreu never demonstrated that he would be able to return to work within a reasonable time. Santandreu had already taken several leaves of absence, received a total of fifteen months of leave, and still had no way of knowing when his doctor would allow him to resume full-time work. Even at the time of trial, Santandreu and his doctors attested that he still had not received medical clearance showing that he was able to work. Because Santandreu was unable to show that he would be able to perform the essential functions of the job anytime in the reasonably immediate future, his request for additional leave was not a request for a reasonable accommodation.

This case is helpful to a point. Most employers faced with leave requests (as an ADA accommodation) are given an initial date certain (or estimated date) for the employee to return. There are times when that date will need to be pushed back. In Santandreau, enough was enough after about 17 months and four requests for extensions.

Depending on the resources of your business, maybe the line could have been drawn sooner. Or maybe more leave would have been reasonable. Santandreau notwithstanding, there is no bright-line rule on time off, except that: (1) an indefinite leave is unreasonable; and (2) if your  employee handbook leave provision quantifies a maximum amount of leave (e.g., no employee may take more than 12 consecutive weeks off), you’re asking for trouble. Rigidity is anathema to the “interactive dialogue” and “individualized assessment” processes that the ADA requires when determining reasonable accommodations.

Instead, focus on open communication and good documentation. These are the hallmarks of reasonableness that a jury will understand if your ADA defenses are tested. More importantly, these are the attributes of good companies that will, hopefully, avoid lawsuits altogether and promote a happy workplace.

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Recent OCAHO Decision Empasizes the Need for Employers to Complete Accurate and Timely I-9 Forms

dcbf3954 : August 26, 2013 12:22 pm

By Michael A. Caldwell

As immigration reform measures wend their way through Congress, it is becoming ever more important for employers to prepare for strict worksite enforcement of I-9 requirements.  Failing to do so can result in costly auditing and penalties for paperwork violations, and even higher penalties for the knowing employment of undocumented workers.

A recent decision from the Justice Department’s Office of the Chief Administrative Hearing Officer (OCAHO) provides an important lesson for businesses’ need to ensure that their I-9 forms are in order. OCAHO ultimately levied a civil money penalty of $15,600. However this was a reduction from the original of more than $25,500 that U.S. Immigration and Customs Enforcement (ICE) initially sought

In U.S. v Anodizing Industries, Inc., OCAHO confirmed that, under current laws and regulations, employers are required to timely and properly complete and maintain Form I-9, Employment Eligibility Verification. In addition, each failure to properly (1) prepare, (2) retain, or (3) produce the forms upon request in accordance with the I-9 rules constitutes a separate violation. The decision further confirmed that failing to prepare an I-9 form when hiring a new employee is a substantive violation in its nature, not merely a technical failure for which an employer might raise a “good faith defense.” Moreover, the failure to timely prepare Form I-9—within three business days of the employee’s commencement of employment—is also both a substantive violation and a serious one

Other violations characterized as substantive rather than technical in nature include:

  • the lack of an employee signature in the section 1 attestation;
  • the lack of a signature by the employer’s representative in the section 2 attestation; and
  • the omission of proper documents to establish identity or employment eligibility, or the listing of improper documents.

In Anodizing, the company’s untimely completion of Forms I-9 on behalf of 25 of its employees and failure to sign and date the section 2 attestation on behalf of one of its employees, both substantive violations, meant that the company could not avail itself of the good faith defense from liability which is available only for minor, unintentional I-9 violations. OCAHO drew a distinction between inadvertent omissions of a date, or a delay in entering a date on an existing form that was actually prepared at the appropriate time, and a complete failure to prepare the form at the time of hire—a substantive violation. It rejected the company’s argument that its errors which “merely” omitted responses to the questions on the I-9 form were technical errors. OCAHO held that while “an inadvertent failure to complete certain specific entries in a timely manner may be technical or procedural,” this “does not operate to extinguish the duty to prepare the I-9 in the first instance.”

Employers Should Take a Proactive Approach

The focus on audits and other work-site enforcement actions is likely to continue. It will accompany any immigration reform legislation that Congress eventually passes. Thus, employers should review their immigration compliance policies and practices.

When reviewing or evaluating compliance programs, employers must examine their hiring policies and practices, take steps to ensure that all members of their workforce  legally are permitted to work by making good faith efforts to verify their employment eligibility. They should proactively discuss compliance with experienced legal counsel. Reviewing I-9 policies, training persons responsible for overseeing the I-9 form completion, and conducting a self-audit of I-9 records (whether with knowledgeable internal staff or outside immigration counsel) are just a few of the steps that prudent employers should take. In addition, employers should consider using electronic I-9 software to improve I-9 completion accuracy.

By completing these steps employers will reduce their exposure to potential fines and the chance of additional sanctions resulting from an ICE audit of their I-9 forms. The penalties for ignoring these safeguards can be substantial.

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Practical Suggestions on FMLA Compliance

Michael Caldwell : April 1, 2012 10:40 am

I have posted an article here that offers a number of practical tip for FMLA compliance.

This article addresses:

  • What Forms of Documentation Can an Employer Require?
  • Who Can Complete Certifications ?
  • Can You Push Back Against Doctors?
  • Other FMLA Leave Management Tips
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Drug Testing of Employees

Michael Caldwell : March 31, 2012 8:37 pm

Drug Testing of employees has been a common practice among private and public employers for over two decades. The federal government established a Drug Free Workplace Act for federal contractors, providing for policy changes and reporting of employees who were convicted of drug offenses. Some states, such as Georgia, encouraged private employers to create their own Drug Free Workplace Policies by providing for mandatory workers compensation insurance premium discounts in cases where the employer’s policy and practices met statutory requirements, including by drug testing all job applicants, and requiring both “for cause” and random drug testing procedures.

Read the Entire Article Here

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FMLA after Coleman v. Maryland Court of Appeals

Michael Caldwell : March 21, 2012 12:35 pm

In a ruling released yesterday, Coleman v. Maryland Court of Appeals, the Supreme Court held that the FMLA’s provisions for leave to care for an individual’s own serious health condition could not be applied to employees of State (not local gov’t) agencies under the doctrine of sovereign immunity (the 10th Amendment), and suits against states for violating the FMLA relating to the self-care provisions were barred by the 11th Amendment. It held e Congress did not have the power to abrogate the state’s sovereign immunity for such a purpose under the 14th Amendment.

This does not affect FMLA leave requirements where the purpose is to care for “: (A) “the birth of a son or daughter . . . in order to care for such son or daughter,” (B) the adoption or foster-care placement of a child with the employee, (C) the care of a “spouse . . . son, daughter, or parent” with “a serious health condition,”  In Nevada Dept of Human Resources v. Hibbs, the Court had held that there was evidence that states administered their leave policies in a sexually discriminatory manner with respect to granting leaves for care of immediate family members, so that the 14th Amendment allowed Congress to abrogate State sovereign immunity and permit suits against states for violation of the FMLA in such cases.  The Coleman case (decided by a 4-1-4 vote –with Kennedy writing the majority opinion and with Scalia separately concurring in a decision urging that the Court apply an even stricter standard against federal laws that permit suits against states) dealt only with the FMLA provision requiring leave to care for the employee’s own  serious health condition.  Thus the FMLA’s leave requirements for purposes listed in (A), (B) and (C) above still can be applied against states. If the purpose of the leave is to care for the State employee’s own serious health condition, enforcement in federal courts is blocked by the 10th and 11th amendments. Local governments don’t have sovereign immunity under the 10th and 11th amendments, and thus the FMLA in its entirety can be applied to them.

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DOL’s FMLA Forms Expired – Advice

Michael Caldwell : January 6, 2012 1:56 pm
The DOL’s FMLA Forms Expired on December 31, 2011.


Should Employers Still Use Them?


The current forms approved by the U.S. Department of Labor (DOL) for obtaining medical certifications under the Family and Medical Leave Act (FMLA) expired on December 31, 2011. The law permits the DOL to continue using the forms while it seeks renewal of the forms. Thus, employers may continue to use the DOL’s FMLA forms, although consider our suggestions below before using these standard DOL forms. See article by clicking here.

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“Interactive Dialog” on ADAAA

Michael Caldwell : January 5, 2012 5:52 pm

Key to Satisfying EEOC


Thhe Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) created a sea-change for employers regarding the enforcement of employee rights and employer duties arising under the Americans with Disabilities Act of 1990. The EEOC took nearly three years to come up with new regulations governing how it will enforce and interpret the ADA/ADAAA; and the regulations it created pose significant dangers for private and public employers.

Read the entire publication here.


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