Improper record keeping continues to be the source of many complaints and lawsuits arising under the FMLA. Employers should train their management teams, on a regular basis, on how to properly document, in writing, FMLA leave.
Another common problem under the FMLA is when a manager or supervisor asks an employee, who is on FMLA leave, to perform work. In a recent case, a manager at an energy company was granted two months leave as a result of surgery. According to the manager, after she gave notice, her supervisor became hostile towards her, and when she was on leave, required her to perform much of her regular work. She claimed that she was required to perform 20 to 40 hours a week “updating compliance issues, revising a safety review product and dropping off files at the office.” After she returned to work from her leave, she resigned one month later due to what she claimed was a hostile work environment that was created by her supervisor. In this case, the court found that “… reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s FMLA rights: however, asking or requiring an employee to perform work while on leave can constitute interference.” The court denied the company’s motion for summary judgment, allowing this case to proceed forward towards a jury trial. As always, documentation is important. If an employer requests an employee, who is on FMLA leave, to do any type of task, it should be done in writing. Pursuant to well established FMLA case law, any request for work should be restricted to simple administrational tasks or to update the status of work assignments that continue on after the leave begins.
14. FYE 2014 EEOC Statistics
Recently, the EEOC released its Fiscal Year 2014 statistics. The number of charges received by the EEOC decreased by 88,778. 42.8% of the charges alleged retaliation. 35% alleged racial discrimination. The EEOC filed 133 lawsuits. The EEOC obtained $296.1 million in total monetary relief prior to filing the litigation, and $22.5 million resulting from the resolution of cases where lawsuits were filed. For a complete breakdown of the EEOC charges, you can visit the EEOC website.
15. Miscellaneous Issues
Other issues that will have an impact on employers in 2015 include:
Immigration/I-9 Compliance: From 2008 to 2014, the number of I-9 audits increased from 300 to more than 3,000.
Reasonable Accommodations for Pregnant Women: The EEOC has been and will continue to vigorously pursue claims involving accommodations for pregnant women.
Workplace Bullying: Workplace bullying continues to increase and can result in low morale, decreased productivity and increased lawsuits.
Ban the Box: Although Alabama has not adopted “Ban the Box” legislation, many states and cities have begun to restrict or prohibit questions on employment applications about criminal convictions.
Safe Driving Laws: Employers may be held liable for accidents caused by their employees while driving, either in company vehicles or private vehicles, while working for the employer. Texting while driving is not allowed in Alabama. Although the use of cell phones while driving is not illegal in Alabama, if the employer has a policy against talking on a cell phone while driving, and an accident occurs while the employee is on the cell phone, this may result in claims against the employer.
Interns and Volunteers: Last year, there were numerous cases involving lawsuits made by interns and volunteers for either wages, if they are not getting paid, or overtime, if not receiving overtime.