News & Analysis

Avoid these 5 mistakes in your FMLA policy

Despite the fact that it's coming up on its 25th anniversary early next year, the Family and Medical Leave Act (FMLA) continues to cause grief to even seasoned HR professionals. From relatively simple tasks like keeping up with the latest U.S. Department of Labor (DOL) forms, to the trickiest issues of tracking intermittent leave or handling suspected leave fraud, employers large and small can struggle to get it right.

Agency Action

Agency predicts insolvency for insurance program. The insurance program for multiemployer pension plans is likely to go insolvent by the end of 2025, according to an August 2017 report from the Pension Benefit Guaranty Corporation (PBGC). The multiemployer program covers more than 10 million Americans. The agency said its projections for the insurance program for single-employer pension plans, which covers about 28 million people, show that its financial condition is likely to continue to improve. The program is highly unlikely to run out of money in the next 10 years and is likely to eliminate its deficit within the next three to seven years. But without changes in law or additional resources, the agency projects that the multiemployer programs fiscal year 2016 deficit of $59 billion will increase, with the average projected deficit (looking across multiple economic scenarios) rising to almost $80 billion (in nominal dollars) for fiscal year 2026.

Workplace Trends

Survey finds interview process getting longer. The time it takes to hire around the globe has risen by about a day, up to 23.7 days thus far in 2017 compared to 22.5 days in 2016, according to a report from job site Glassdoor. The process is longest in Brazil, France, and Switzerland and shortest in India, Israel, and Romania. In the United States, the average hiring duration thus far in 2017 is 23.8 days, which is on par with the global average but slightly up from 2014 (22.9 days). Differences in labor market regulations largely drive the differences in hiring times, the study showed. The study is based on nearly 84,000 interview reviews shared on Glassdoor by interview candidates between January 1 and June 13, 2017. The process is longest in Brazil, with the average being 39.6 days, and the shortest in India, with a 16.1-day average.

Picking at scabs: NLRA protects picketer who yelled racial slurs

The U.S. 8th Circuit Court of Appeals (whose rulings apply to all Arkansas employers) recently upheld the National Labor Relations Board's (NLRB) finding that a tire manufacturer violated the National Labor Relations Act (NLRA) when it terminated an employee for making racially offensive comments on a picket line.

Love pat: Long-term employee can't show boss's behavior was unwelcome

The 8th Circuit recently affirmed a district court's dismissal of an eyeglass technician's constructive discharge claims based on a hostile work environment and gender discrimination and age discrimination.

Lost cause: 8th Circuit tosses Jefferson County deputy's retaliation claims

The 8th Circuit recently upheld an Arkansas district court's dismissal of a police officer's claim of retaliation against the Jefferson County Sheriff's Office (JCSO) because he failed to establish a causal connection between his protected activity and the JCSO's adverse employment actions against him.

Stand-up guy: employee requests new desk after surgery

Q One of our employees is having shoulder surgery and will be out only three days. He has asked us to buy him a stand-up workstation, which costs around $300. His surgery isn't work-related. Our issue is that if we buy him the stand-up desk, other employees will ask for one. Are we required to buy the desk?

Turnabout is fair play for Arizona employees

Arbitration proponents tout the advantages of private dispute resolution, and there are a few. There are also disadvantages that you should consider before implementing a mandatory arbitration program in your workplace. There's no doubt, however, that judges are big fans of arbitration agreements because they get cases off their dockets quickly and with relatively little use of court resources. The Arizona Supreme Court and the Arizona Court of Appeals both decided cases in July 2017 that demonstrate the strong judicial support for arbitration of employment disputes. In an ironic twist, in both cases, it was employees who succeeded in using arbitration agreements to block their former employers from having their day in court.

FMLA claim linked to others? Be wary of mandatory attorneys' fees award

The Family and Medical Leave Act (FMLA) grants eligible employees the right to take medical leave to care for themselves or family members with serious medical conditions. It also prohibits employers from interfering with or retaliating against employees who exercise that right. An interference claim can arise if you fail to return an employee to the same or an equivalent position when her FMLA leave ends. You should evaluate any decision to return an employee to a different position to ensure that the new job is equivalent to her old job in terms of pay, hours, and responsibilities. Failing to do so could result in an interference claim against you.

Employer's lawyer in hot water after threatening worker with possible deportation

Only an employer can violate the minimum wage and overtime provisions of the federal Fair Labor Standards Act (FLSA). But the statute's nonretaliation provisions are broader and may sweep in "any person" who retaliates against an individual based on conduct protected by the FLSA. The 9th Circuit recently found an employer's outside lawyer to be such a person after the lawyer attempted to arrange the detention—and possible deportation—of an undocumented worker when he appeared for a deposition.