Employment Matters Blog - A blog about current developments & issues in employment, labor & benefits law

By Martha J. Zackin

February 6, 2013 was the 20th anniversary of the signing of the Family and Medical Leave Act.  In celebration, the United States Department of Labor released the results of a survey on the law’s use and impact.  According to the DOL, the survey shows that the “FMLA continues to make a positive impact on the lives of workers without imposing an undue burden upon employers,” and that both employers and employees find it “relatively easy to comply with the law.” The survey also concludes that “misuse of the FMLA is rare.” 

In addition to publishing the survey, the DOL issued a final rule implementing the law's protections to families of veterans and airline flight crews and making other clarifying changes.  Finally, the DOL published new forms for employers to use when seeking certification of serious health conditions or when designating eligibility, among other things.  As before, use of the forms is optional.

By Joel M. Nolan

Recently, the U.S. Department of Labor released a user-friendly Employees' Guide to the Family and Medical Leave Act.  The guide is targeted at employees, but may also serve as a helpful tool for employers looking for an efficient summary of the law. 

The guide does not provide new information or legal interpretations of the law; rather, it provides a plain-language overview of the FMLA's major provisions and contours, such as FMLA eligibility, FMLA rights and protections, the process for requesting leave (and associated notice provisions), FMLA certifications, and job reinstatement.  In addition, the guide highlights certain unique circumstances and incorporates some of the DOL's  interpretive guidance on particular issues.  For example, the guide discusses eligibility guidelines for airline flight attendants and flight crew employees, describes when employees may be eligible to take FMLA leave to care for certain children with whom the employee has no legal relationship (or to care for another as such a child), and emphasizes the importance of employer FMLA policies.  Further, the guide provides clear flowcharts regarding FMLA eligibility and certification and the process for taking FMLA leave, as well as information for employees on filing an FMLA complaint with the DOL's wage-and-hour division.

The DOL has also archived a webinar about the guide, which is available here: http://www.dol.gov/whd/fmla/employeeguide-webinar.htm

Employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors to covered employers, must comply with the Family and Medical Leave Act (“FMLA”).   The FMLA requires covered employers to comply with various notification requirements, and allows employers to obtain medical certifications from employees requesting leave.  The Department of Labor (“DOL”) has authored various form notices and certifications, which employers may choose to use.

The DOL-drafted forms expire on January 31, 2012.  New forms, which have been submitted to the United States Office of Management and Budget, are not likely to be approved before the old forms expire.  Nevertheless, under the law, expired forms may continue to be used while new forms are awaiting approval.

But – and this is important – the soon-to-expire forms do not include the “safe harbor” language under the Genetic Information Nondiscrimination Act, which tells employees and their medical providers that they should not provide “genetic information” when responding to a request for certification. 

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In a case of first impression, the Department of Labor’s Administrative Review Board (ARB) finds that the meaning of the term “adverse action” under the whistleblower protection provisions of the Sarbanes-Oxley Act (SOX) is substantially broader than the meaning of the same term under Title VII, and found that the employer’s disclosure of the whistleblower’s identity in violation of the employer’s own confidentiality policy was an adverse action.  This employee-friendly decision reflects the DOL trend towards expanding employees’ workplace rights.

First, the background.

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On June 28 the OFCCP announced that it was restoring the functional AAP (FAAP) program, which it had suspended a few years ago. A copy of the OFCCP's Directive regarding FAAP's may be found here; the key points are as follows: 

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Written by Martha Zackin

On April 1, 2010, the United States Department of Labor launched a new, nationwide marketing campaign, dubbed “We Can Help,” to let workers know how to contact the government with their work-related complaints. The marketing campaign, which is being conducted in several different languages, is intended to connect workers with the Department of Labor. In particular, the campaign seeks to reach employees in low-wage industries perceived as vulnerable to employer exploitation, such as construction, janitorial services, hotel and food services, and home health care.

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Amendments to New York Labor Law §195 obligate New York employers to notify new employees, in writing and at the time of hire, about certain terms and conditions of employment. Amended §195 also requires employers to obtain from each new employee a written acknowledgment confirming that he or she received the specified information. New York's Department of Labor has now mandated use of its form of notice and acknowledgment. See our alert here for more information.