Presenting a live 90-minute webinar with interactive Q&A New FMLA Enforcement Initiative: Roadmap for Heading Off FMLA Complaints and Handling DOL Investigations Structuring Compliance Processes and Self-Audits to Mitigate Employer Liability WEDNESDAY, JUNE 25, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Marti Cardi, VP , Legal & Chief Compliance Officer, Reed Group , Westminster, Colo. Joseph J. Lynett, Shareholder, Jackson Lewis , White Plains, N.Y . The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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STRAFFORD: CONTINUING LEGAL EDUCATION June 26, 2014 Click to edit Master subtitle style Joseph J. Lynett, Esq. Marti Cardi, Esq. Jackson Lewis, P.C. Reed Group Shareholder VP-Legal, Chief Compliance Officer Lynettj@jacksonlewis.com mcardi@reedgroup.com 5
Overview Initial FMLA complaints Incorporating latest regulations into policies and procedures Self-audits On-site DOL FMLA investigations Advance preparation Preparation upon notice On-site employee interviews by DOL investigator 6
DOL Officials have described 2014 as a “pivotal year” for FMLA enforcement DOL is adopting an approach much more similar to that commonly used in wage & hour investigations Section 106 of the FMLA provides same authority as Section 11(a) of the FLSA 7
More DOL participants, more assets on the ground conducting the investigation Little or no advance notice of the investigation Investigations increasingly conducted on-site at employer’s place of business Condensed time-frames to respond or comply with DOL requests Increased scope of investigation, examining FMLA notices and technical compliance with regulations 8
FMLA Investigations can be: “ Complaint-based ” – Employee files a complaint with the DOL alleging that his/her FMLA rights have been violated Interference Retaliation “Directed” – The Company has been selected for a audit 9
Greater need to administer FMLA in accordance with law and regulations. Flawed administrative process create systemic exposure. Responses to requests for FMLA leave Discipline under attendance control policies Certification/Recertification requests Denials of FMLA Leave Return to work process Recordkeeping practices 10
Failure to provide required notices General Notice: In Handbooks or written policies Have recent FMLA changes been incorporated into policies? Specific Notice – Must provide written notice of: Rights and responsibilities Leave being counted as FMLA Obligation to provide medical certification Obligation to substitute paid leave for unpaid FMLA leave Arrangement for premium payments Reinstatement rights Must provide notice within 5 business days of leave request or knowledge that leave is FMLA qualifying Use WH 381 Form 11
Flawed certification practices Not provided timely Failure to accept adequate certifications Failure to provide extensions Failure to provide written notice of deficiencies Improper contacts with health care providers Authentication and clarification Use WH 380E and 380F forms, adding GINA Safe Harbor Notice to WH 380E form 12
Failure to properly designate FMLA leave Must provide designation notice for each FMLA- qualifying reason in each applicable 12 month- period Use WH 382 form Reference fitness for duty certification requirements 13
Leaves improperly denied Supervisors often fail to recognize or communicate information that establishes a right to FMLA leave Consider training front-line supervisors receiving information from employees about reasons for absences or leave Improper calculation of FMLA leave Count only FMLA actually taken Employees actual workweek is the basis of calculation Failure to maintain required records 14
FMLA Regulation Section 825.500: (c) Covered employers who have eligible employees must maintain records that must disclose the following: (1) Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid. (2) Dates FMLA leave is taken by FMLA eligible employees ( e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA. (3) If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave. 15
You can do it on your own; or You can do it with the DOL looking over your shoulder 16
1. General Notice to All Employees 29 CFR § 825.300(a) Two general notice requirements: Posting – Conspicuous place, accessible to all employees; electronic posting OK Handbooks or other written policies regarding employee benefits or leave rights; electronic OK If no written leave policies, provide to all new hires Content of general notices: Explain the FMLA’s provisions Provide information about filing a complaint with the Wage & Hour Division, DOL 17
2. Specific Notices to Employees Eligibility notice (oral or written) 29 CFR § 825.300(b) Within 5 business days of employer knowledge of employee need for FMLA leave If employee is not eligible, notice must state at least one reason Eligibility does not change for same leave reason during 12-month leave year 18
2. Specific Notices to Employees (continued) Notice of Rights & Responsibilities (written) 29 CFR § 825.300(c) Provide each time employee eligibility notice is sent Variety of specific rights & responsibilities addressed, including employer-specific policies May include certification forms 19
2. Specific Notices to Employees (continued) Designation notice (written) 29 CFR §§ 825.300(d); 825.301 5 business days after receiving sufficient info Whether the employee’s leave will be designated as FMLA leave Whether the employee’s leave will be counted as paid leave Whether employer will require a fitness-for-duty cert upon RTW; list of essential functions if provider is to address these Amount of leave that will be counted against FMLA entitlement (if known) If amount is unknown (e.g., intermittent leave) respond to employee inquiries orally, followed up by written confirmation 20
2. Specific Notices to Employees (continued) Changes (written) 29 CFR § 825.300(d) If information in designation notice changes (e.g., employee exhausts FMLA leave entitlement) Within 5 days of employer notice of change, and in connection with another need for leave Disputes (written) 29 CFR § 825.301(c) Employer must discuss with employee if there is a dispute over whether leave should be designated as FMLA Discussion & decision must be documented 21
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