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FMLA Strategies

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FMLA Strategies Powered By Docstoc
					  Advanced FMLA Strategies
    Tips & Tactics to Minimize Abuse and Limit
                      Liability




Hosted By:              Presented By:
National Institute of   Matthew S. Effland
Business
Management              Wednesday,
                        September 30, 2009
                                                    FMLA in the Trenches
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           90% of employees use FMLA for proper
                                           purposes
                                           10% of employees take advantage in
                                           any and every way they can
                                           WHY WORRY ABOUT THE 10%?



                                        FIRST CLASS SERVICE, COAST TO COAST
                                                The Costs of Ignoring
                                                 Abuse are too High!
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                        FIRST CLASS SERVICE, COAST TO COAST
                                                      Costs to Employers
                                                                Cost of temporary help
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                                                Lost labor/production

                                                                Missed deadlines

                                                                Late shipments

                                                                Lost business

                                                                Overworked staff


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                                           Costs to Employers (Cont.)
                                         FMLA Compliance cost companies well over
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                        $21 billion last year

                                          U.S. Department of Labor reports misuse
                                        resulted in nearly 25% of all FMLA leaves

                                          Recent study indicates one in five individuals
                                        suspect/is aware of someone who abused
                                        FMLA leave


                                        FIRST CLASS SERVICE, COAST TO COAST
                                                     Do any of these look
                                                        Familiar???
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                             Regular Long Weekends
                                             Annual Illnesses
                                             Perfect Fit
                                             Free Pass




                                        FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                                      So what can an
                                                       Employer do?



                                        FIRST CLASS SERVICE, COAST TO COAST
                                                      Fight Back!
                                                (Non-Violently, of course)
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                               Train managers
                                               Check policies
                                               Request certification
                                               Second opinion
                                               Surveillance/Investigation



                                        FIRST CLASS SERVICE, COAST TO COAST
                                        1. Train Your Managers
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                        FIRST CLASS SERVICE, COAST TO COAST
                                                  Train Your Managers

                                           Managers are the front line of defense (and
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           liability)

                                           As gatekeepers, often relied upon for initial
                                           eligibility information

                                           Key source of recognizing signs of abuse



                                        FIRST CLASS SERVICE, COAST TO COAST
                                                Why Train Your Managers?
                                                Burnett v. LFW Inc. (2007)
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                              Addressed sufficiency of notice of need for FMLA
                                              leave
                                              3 different managers given different information
                                              over 4 months – didn’t talk to each other or HR
                                              Court holds repeated remarks regarding
                                              condition were enough – company’s fault for
                                              managers not talking to each other
                                              “Institutional Memory”


                                        FIRST CLASS SERVICE, COAST TO COAST
                                           2. Check Your Policies
EMPLOYERS & LAWYERS, WORKING TOGETHER




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                                         Careful Policy Drafting is the Key!
                                           It’s Your policy – right or wrong
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                              Don’t give more rights (unless you
                                              want to)
                                              Don’t leave out important
                                              information
                                              Make sure all necessary
                                              information is given to employees


                                        FIRST CLASS SERVICE, COAST TO COAST
                                              The Dangers of Inaccurate Drafting:
                                              Peters v. Gilead Sciences Inc. (2008)

                                              2 locations, over 75 miles apart
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                              Smaller location had less than 50
                                              employees
                                              All employees given handbook that
                                              discussed FMLA rights – but not
                                              size requirement
                                              Inaccurate drafting resulted in
                                              potential liability (i.e., a trial)
                                        FIRST CLASS SERVICE, COAST TO COAST
                                        Other Policy Options: Picking the Best
                                                 Leave Year for You
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                              Pros & Cons – Calendar/Fixed
                                              Year vs. Rolling Backwards
                                                 Ease of administration for
                                                 Calendar/Fixed Year
                                                 Risk of “stacking” eliminated by
                                                 Rolling Backwards



                                        FIRST CLASS SERVICE, COAST TO COAST
                                          The Value of Choosing the Correct Leave Year:
                                                  Davis v. Michigan Bell, (2008)

                                              Sixth Circuit upholds an employer’s
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                              denial of FMLA benefits because
                                              employee didn’t meet eligibility
                                              requirements after entering the new
                                              FMLA leave year

                                              FMLA eligibility determination must be
                                              made as of the date the leave
                                              commences
                                        FIRST CLASS SERVICE, COAST TO COAST
                                           Absenteeism Policies Provide
                                                  Some Cover
                                           FMLA-covered leave cannot be taken into
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           account under “no-fault” attendance policies or
                                           consider those absences excessive under
                                           absenteeism policies,
                                                               BUT…
                                           Properly administered “no call, no show” policy
                                           does not violate FMLA
                                           Make sure notice requirements are consistent
                                           with statute (as soon as practicable)

                                        FIRST CLASS SERVICE, COAST TO COAST
                                         3. Require Certification
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                        FIRST CLASS SERVICE, COAST TO COAST
                                           Require Complete Certifications

                                           Push back on certifications with
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           insufficient information
                                              Duration?
                                              Frequency?
                                              Diagnosis?
                                              Planned Treatment?



                                        FIRST CLASS SERVICE, COAST TO COAST
                                           Require Complete Certifications

                                           Consider attaching Job Description to
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           initial/renewal certification

                                           Consider attaching attendance record to
                                           Re-Certification

                                           Put spot for Dr’s initial on attachment

                                        FIRST CLASS SERVICE, COAST TO COAST
                                           Require Complete Certifications

                                           If incomplete – give back and give 7
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           days to fix
                                           If still incomplete, call Doctor (anyone
                                           except direct supervisor)
                                           If employee refuses to consent to
                                           call/release of information, deny leave
                                           request

                                        FIRST CLASS SERVICE, COAST TO COAST
                                        4. Get a Second Opinion
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                        FIRST CLASS SERVICE, COAST TO COAST
                                        Second Opinions are Worth the Cost!
                                           FMLA expressly permits second opinion
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           if reason to doubt validity of certification
                                           Employees who fail to cooperate lose
                                           protection
                                           Don’t be dissuaded by the “cost” of a
                                           second opinion
                                              Second/Third Opinion vs. Employee that’s abusing
                                              the system
                                              Only one chance per year

                                        FIRST CLASS SERVICE, COAST TO COAST
                                             Barnes v. LaPorte County (2008)
                                           Employer suspected employee of
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           FMLA abuse, scheduled second
                                           opinion
                                           Employee refused to attend, instead
                                           submitted nurse’s note
                                           Employer terminated employment
                                           due to absenteeism
                                           Court upheld decision

                                        FIRST CLASS SERVICE, COAST TO COAST
                                          5. Surveillance
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                        FIRST CLASS SERVICE, COAST TO COAST
                                                          Potential Benefits

                                           Can confirm suspicions
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           Can put fears/concerns to rest
                                           Can give solid evidence to support
                                           employment decisions
                                           VERY persuasive to fact finders, if done
                                           correctly!


                                        FIRST CLASS SERVICE, COAST TO COAST
                                                Surveillance is Supported

                                           Vail v. Raybestos (2008)
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                              Employees reported plaintiff calling in
                                              sick with a migraine, then helping
                                              husband with yard care business during
                                              the day
                                              Court found employer entitled to
                                              terminate employment because it had an
                                              “honest suspicion”

                                        FIRST CLASS SERVICE, COAST TO COAST
                                                           Potential Pitfalls

                                           Retaliation/disparate treatment
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           Invasion of privacy
                                           Inability to easily articulate why the
                                           employee is being surveilled
                                           Surveillance may not provide conclusive
                                           evidence of fraud
                                           Inconsistency


                                        FIRST CLASS SERVICE, COAST TO COAST
                                                         IN CONCLUSION…

                                           FMLA is stacked in favor of employees
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                           Use the tools the law gives you
                                           Be prepared for resistance
                                           Hold firm, be consistent, and the
                                           message will get across to employees



                                        FIRST CLASS SERVICE, COAST TO COAST
                                           Question & Answer Session

                                              Have a question for the         For more information regarding
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                                              speaker? Press “Star” and       NIBM’s newsletters, forums,
                                              then “1” on your phone to       Audio Conferences and Special
                                              enter the queue.                Reports, visit: www.
                                                                              BusinessManagementDaily.com
                                              If, during the Q&A, your
                                              question has been               We’d love your feedback
                                              answered, or you wish to        regarding the conference and
                                              remove yourself form the        other topics you’d like to hear
                                              queue, press “Star” and         about! Contact Heather Rice at:
                                              then “1.”                       hrice@NIBM.net.

                                              The moderator will
                                              introduce you by first name
                                              and state when it is your
                                              turn to speak.




                                        FIRST CLASS SERVICE, COAST TO COAST
                                                   THANK YOU!
EMPLOYERS & LAWYERS, WORKING TOGETHER




                                                             Matthew S. Effland
                                                 Ogletree, Deakins, Nash, Smoak & Stewart
                                                            111 Monument Circle
                                                                 Suite 4600
                                                           Indianapolis, IN 46204
                                                  Ph: (317) 916-2152 Fx: (317) 916-9076
                                               E-mail: matthew.effland@ogletreedeakins.com


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