Tag Archives: employee rights

The Family and Medical Leave Act of 1993 (FMLA) has long required employers to grant employees up to 12 weeks of unpaid leave for family situations. Employers covered under the FMLA include companies who employ over 50 people, all public agencies, and private and public schools (excluding colleges). To be covered under the current rules, employees must have worked for the company for at least one year with 1,250 hours completed during that year. Employees also must need the leave for a specific reason, such as the birth and/or care of a child (birth, foster, or adoptive), pregnancy complications, to care for a family member with medical issues, or for personal medical reasons. In January 2009 the FMLA also added leave for new military families. While the FMLA is fairly comprehensive already, some proposed new changes may require you to allow employees leave in even more situations. 

The Domestic Violence Leave Act

On October 11th, 2011 a bill was introduced to the house called H.R. 3151: Domestic Violence Leave Act as an amendment to the FMLA. The new bill seeks to make leave available for employees who need to address domestic violence issues, either for themselves or a family member. Domestic violence that would entitle an employee to leave is identified as:


  • Anything to do with Domestic Violence
  • Sexual Assault,
  • and/or Stalking

as defined in the Violence Against Women Act of 1994. 

The definition of “address” includes:


  • The receiving of medical attention, 
  • Anything to do with legal matters such as meetings with police/lawyers, 
  • Going to a support group, 
  • Attending counseling, 
  • Anything related to ensuring future safety, or 
  • Participating in any type of activity that was necessary as a result of a domestic violence incident.

In cases where leave is requested as a result of domestic violence, the Act imposes a confidentiality amendment that would require employer confidentiality in relation to an employee addressing a case of domestic violence. Employees, on the other hand, would need to provide written documentation of the domestic violence incident if requested by the employer.

Other Amendments

The new bill also requests amendments for subsections of the FMLA. These include:

  • Allowing employees to take leave intermittently or on a reduced schedule, 
  • Allow employees to elect to use any accumulated vacation, sick, personal, family, or medical leave for the intermittent time.

Employees would be required, however, to provide the employer with reasonable notice if they are aware ahead of time that they need to miss work,.   It also wants the term “domestic partner” added as a family member of an employee, including same-sex partners and children of domestic partners. 

Keeping up with FMLA Rules

While these rules have merely been proposed as of October 2011, it is important to keep abreast of your obligations under the FMLA. Failure to grant required leave or any discrimination or mistreatment of employees on FMLA leave can subject your company to lawsuits, so knowing the current rules is key to protecting yourself legally. 


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Respecting Your Employee’s FMLA Rights

Under the Family and Medical Leave Act (FMLA), qualified employees are permitted to take up to 12 weeks of unpaid leave annually due to a medical emergency or other qualifying incident, such as the birth of a child or the need to care for an active duty military family member. Employers may not take any adverse action against employees who utilize their FMLA benefits. Recently, a Pennsylvania court ruled that a manager failing to return telephone calls of an employee on FMLA leave can be viewed as evidence of an employer’s FMLA violation.

Returning Phone Calls as an FMLA Violation

In a recent Pennsylvania case entitled Hofferica v. St. Mary Medical Center, Hofferica, a registered nurse, had to take FMLA leave due to an ear problem. While she was on leave, she regularly contacted her supervisor to provide him with details on her condition. Her employer did not return Hofferica’s phone calls, despite her repeated efforts at contact.

Shortly before Hofferica was scheduled to return to work, she submitted a certification signifying that she was cleared to resume her duties but that she would need an extension of one week.  Again, her supervisor did not call her back.

Hofferica subsequently received a letter indicating that her job had been terminated because she exceeded the permissible amount of FMLA leave that had been agreed-upon. Hofferica subsequently filed suit alleging that her employer had retaliated against her for taking the leave that the law permits her.

The Court’s Ruling

The court determined that the supervisor’s persistent failure to return Hofferica’s telephone calls could be seen as clear evidence of an antagonistic attitude toward the employee on leave, especially since the pattern of behavior did not begin until after Hofferica had already taken her leave.

Because the manager’s actions could indicate retaliatory action in violation of FMLA laws, the court declined the company’s motion to dismiss and said Hofferica’s case can proceed.

The Takeaway

While it is unclear at this time whether Hofferica will eventually prevail or not, it is clear that the company will either have to endure the expense of a settlement or will need to endure the expense and costs associated with a trial.

To avoid these problems, it is essential that all employees, including managers, understand and respect the rights and obligations granted by the Family and Medical Leave Act. No actions should be taken against employees on leave, including failing to communicate or return telephone calls, that could potentially be seen as a violation of these worker protections.

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NLRB Delays Posting Date

Earlier this year the National Labor Relations Board made a final ruling that employers covered by the National Labor Relations Act were to notify employees of their rights under this law. The notice of rights will be available through regional offices of the NLRB at no charge or can be downloaded at the website at www.nlrb.gov. Postings can be done on one sheet of 11″ by 17′ paper and must be available for viewing by employees in conspicuous areas. Notices were originally required to be posted  starting November 14, 2011.

In an effort to help employers prepare for this, the NLRB has delayed the official posting date. The new date has been pushed back to January 31, 2012. The NLRB made this decision to help give small and medium sized businesses time to provide education and awareness initiatives to employees about the details involved in the posting rule. No changes have been made in the rules themselves or their content, only the date of their posting.

The notices will contain information about employees rights to organize, join or form a union. They can participate in collective bargaining for improvements in wages, working conditions, and benefits. They can also discuss working conditions with fellow employees and unions and have the ability to strike and picket. Employees can also restrain from these activities if they choose. Contact information for the NLRB will be provided for employess regarding questionable activities of employers or unions.

Employers are encouraged to contact regional offices of the NLRB for more information or questions regarding this ruling or the postings. Regional offices can be found at www.nlrb.gov/who-we-are/regional-offices.

Employer advocacy groups have called this ruling into question. They have stated the NLRB has overstepped its authority and impose new regulations on businesses. The NLRB and labor groups have countered that workers may not be aware of their rights to organize.  


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 It is generally accepted as a good thing when employers take steps to try to promote healthy behavior among employees. The CDC, the American Cancer Society and numerous other organizations encourage employers to offer healthy food choices, encourage exercise and provide insurance coverage for people who want to stop smoking. Working towards healthier employees can reduce sick time, reduce the cost of insurance, make employees more productive and save your business money. However, like all good things, an effort to ensure that employees make healthy choices can sometimes be taken farther than many think it should. Just ask the Michigan employees who the Associated Press reported were told at the end of August that they had to get a flu shot before the 31st of December or lose their jobs.

The Flu Shot Mandate

The flu shot mandate came from a large health care group in Northern Michigan, which justified its policies by saying that non-vaccinated employees were putting patients at risk. Officials who put the new policy into place did so because they report that voluntary compliance with flu shot requests has not ever topped 65 percent. The CEO, Kathleen McManus believes that the non-vaccinated nurses and staff are a danger to patients and that the requirement is justified.

Employees, however, disagree.  Many are protesting, signing petitions, taking steps to rally the community behind them, and attending meeting of a vaccine choice group called Michigan Opposing Mandatory Vaccines.   Nurses and nursing administrators have also indicated that they will let the company fire them before they will submit to the forced vaccine, believing that they should have a choice about what they put into their bodies.

The Legality of the Requirement

While some employees are asserting that the flu shot requirement is a violation of their civil rights, whether or not the company’s specific behavior is legal has not been addressed by any previous legal cases in Michigan. Michigan, like all states in the US, is an employment-at-will state, which means that employers have the right to fire employees for any reason or for no reason, as long as they do not violate the civil rights of their employees.

While some rights to privacy and to make ones own medical decisions have been found in the Constitution, most of those rights prevent the government from imposing its will on medical choice, and not private employers. As such, it is not necessarily a given that the Michigan employer is violating the law with their vaccine mandate.

HR Advice

While it may not necessarily be illegal to require your employees to get a flu vaccine, the Michigan organization with the vaccine mandate is certainly generating some bad press and employee ill will. Employers should always tread cautiously when interfering with the personal decisions of employees and, in this particular case, may have been better served by considering alternate ways to encourage employee compliance with flu shot programs or to protect patients who were at risk.

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Video Taping Employees and Customers: Can You Go Too Far?

While Macy’s has come under fire recently in the news for installing privacy blinds backwards in order to allow employees to see into fitting rooms as customers try on clothes, this loss prevention method is only one in a long line of surveillance tactics and techniques used by businesses worldwide to stop theft and other behaviors that cost them money. In fact, Macy’s instituted the policy of installing their doors backwards in part because video surveillance of fitting rooms is generally illegal due to a reasonable expectation of privacy when changing clothes. While Macy’s tactic is likely a clear violation of privacy rights, video surveillance of employees is more of a gray area.

Can Employers Videotape Employees? 

Video surveillance of employees is far from an uncommon tactic. According to a 2007 survey conducted by The American Management Association, as many as 48% of employers have video monitors in place in order to prevent theft, while 7 percent of employers track employee performance through video monitoring. Of the employees that have cameras, 78 percent tell their employees about the anti-theft surveillance and 89 percent share with their employees that they are being monitored to evaluate performance. 

This video taping of employees is, for the most part, perfectly legal. The Electronic Communications Privacy Act of 1986 is the only Federal Act that deals directly with surveillance on a national level and it addresses only “communication,” which means that videos taken without sound are not typically covered by the Act. Even when ECPA does apply, such as in cases where videos record sound, employers generally are still permitted to surveil employees either if there is a legitimate business reason for doing so and/or if the employee gives express or implied consent. In many cases, the mere fact that the employee knows the video is being taken is considered to be consent. 

While federal law doesn’t prevent surveillance, some states provide protection to employees above and beyond what is offered on the federal level. For instance, Connecticut requires employees be notified before surveillance or monitoring occurs. The rights of employees and customers is also balanced against the right of employers to engage in surveillance when determining if video cameras are proper. The test generally comes down to whether those subject to surveillance or video taping had a reasonable expectation of privacy or not. Those customers or employees in a public area of a store, for example, generally don’t have an expectation that what they are doing is private since they are in an open public arena. Those who are in a dressing room, on the other hand, like the unfortunate customers in Macy’s, do have an expectation that no one will see them change clothes behind the closed door of a fitting room. 

Should You Video Tape Employees?

While you can video tape employees under the law (as long as you don’t go too far and take your cameras where there is a reasonable expectation of privacy) whether or not you should do so is a different question.  Arguments against video taping go beyond the possibility of damaging a trusting relationship with employees. There is also the risk of increased employer liability, as employees who believe that monitoring is occurring may have a reasonable expectation of aid in the event that they are harmed or attacked. Further, employers who have labor union employees may have additional restrictions to comply with as Colgate-Palmolive, 323 NLRB No. 515 (1997) held that refusal to bargain with unions on the issue of surveillance cameras was a violation of the National Labor Relations Act because the decision to install cameras was “outside of the scope of managerial decisions lying at the core of entrepreneurial control.”

Ultimately, the decision as far as whether or not to video tape is one that all employers must make based on their own judgment and the needs of their business. However, to avoid the bad publicity that Macy’s is getting, you should always err on the side of keeping the cameras out of the dressing room. 


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