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Employment Law News from Vigilant: 07/15/2010
07-15-2010 |
 FMLA: Second opinion needed to question leave due to psychological condition
An employer has the right to challenge an employee’s FMLA medical certification, but in certain situations, the employer must obtain a second or even third opinion before denying FMLA leave. A recent federal district court decision offers a useful example of the wrong way to challenge an FMLA medical certification.
Mary-Jo Hyldahl, an employee of AT&T, suffered from post-traumatic stress disorder (PTSD) and depression and was certified to take intermittent FMLA for her conditions. When AT&T became concerned that Hyldahl was misusing her leave, it sent her medical certification to be reviewed by its own doctor. AT&T’s doctor concluded, without examining Hyldahl, that on any day that she was on leave, she should be home in bed. When AT&T learned that Hyldahl had gone to the dentist, gone out to lunch and dinner, gone to a holiday party and had drinks with friends on a day that she had taken as FMLA leave, they terminated her for FMLA fraud. Hyldahl sued and the court ruled that before disregarding Hyldahl’s medical certification, the employer must obtain a second opinion from an independent health care provider regarding her condition and whether her activities on her day off were inconsistent with her claimed need for leave. Without that second opinion, and potentially even a third opinion, the employer could not disregard her certification, even if it had a reasonable belief that she abused her right to take leave (Hyldahl v. AT&T, ED Mich, June 2010).
Tips:
The court in this case noted that if the employee’s condition was something “physical and observable to a lay person” it might be possible to reject the employee’s certification without the need to obtain a formal second opinion. For example, if the employee had a broken leg, a lay person would be qualified to determine whether the employee was observing the doctor’s restrictions while on leave. Contact your Vigilant staff representative for help if you suspect an employee is misusing FMLA leave.
Grandfathered health plans: What does it really mean to you?
By now you’ve probably heard a lot about federal health care reform’s “grandfathering” provision and what you can and cannot do and have your plan remain grandfathered. (See Vigilant’s Health Care Reform Blog for more information.) But if you’re like many employers, you’re still wondering, “what does grandfathered status really mean for me and my plan?” and “should I bother trying to remain grandfathered?” What it means is this: if your plan remains grandfathered, you can avoid complying with some, but not all, of the mandates included in this year’s federal health care reform. But it also means that your hands are tied when it comes to making many cost-saving changes to your plan in coming years. Grandfathering allows you to avoid compliance with these provisions:
• Requiring the plan to fully pay for specified preventive services, without cost sharing from the individual
• Patient protections (emergency room care must be paid at the same level, whether it’s in or out-of-network, no referrals or preauthorizations for OB-GYN care, and the right to choose any participating primary care physician or pediatrician)
• Medical retention standards (a certain portion of premiums must be used to pay claims, versus paying administrative costs)
• Enhanced claims and appeals procedures
• Application of nondiscrimination rules to insured plans
However, grandfathered plans must still comply with many other provisions, including:
• Adult child coverage until age 26
• No retroactive cancellation of coverage once enrolled
• No preexisting condition exclusions (PCEs) for enrollees under the age of 19 (no PCEs at all in 2014)
• Restrictions on waiting periods
• Uniform explanation of coverage documents
• Reporting the value of health coverage on Form W-2
• Automatic enrollment for large employers
• Restrictions on annual and lifetime limits
• “Cadillac” tax on high value health plans
• Various reporting and disclosure requirements
The bottom line is that you, as the employer, will need to make your own individualized assessment, based on your particular circumstances, of whether retaining grandfathered status is best for your organization and your plan. Many employers will likely find that cost pressures simply make it impossible for them to retain grandfathered status, or that grandfathered status is not worth the expense and hassle. If you have questions about grandfathering or any other aspect of health care reform, contact Kristine Cienfuegos at k.cienfuegos@vigilantcounsel.org or 800-733-8621.
OFCCP to check for NLRA rights poster
The Office of Federal Contract Compliance Programs (OFCCP) announced it will investigate complaints that covered federal contractors haven’t notified employees of their rights under the National Labor Relations Act (NLRA), as required by Executive Order 13496. Also, if the OFCCP comes on site during an affirmative action audit, they will check whether the NLRA rights poster is up and whether subcontractors have been notified of their obligations.
Tips: Before you leap into immediate compliance, first determine whether you are covered by the Executive Order. Look at the date on the original request for bids. The NLRA notice requirements apply to federal contracts resulting from solicitations issued on or after June 21, 2010. Then look at the amount. As explained in our June 3, 2010, newsletter, prime contractors are covered if the value of their contract is at least $100,000. All subcontractors down the chain on those large federal contracts are also covered unless their subcontracts are worth $10,000 or less (75 Fed Reg 28368, May 20, 2010).
One last point: If you fail to comply, the penalty is . . . (drum roll) . . . being told to comply. That’s right, the OFCCP will instruct you to post the poster or notify your subcontractors. As long as you follow their instructions, there are no consequences. But, if you fail to post it after being instructed to do so, you could eventually lose your federal contract and be debarred from future contracts.
Moving up termination after complaint equals retaliation
So, you’ve decided to fire an employee for performance reasons, but you plan to delay the termination until you can hire her replacement. The employee then learns of her impending termination and complains to you about the decision. You, now fearing that she’ll sabotage her work if you keep her on the job, decide to terminate her immediately. You’re safe from a lawsuit because you had already made the decision to terminate her, right? Wrong. A federal appeals court decided that it was retaliation, plain and simple, when an employer moved up the employee’s termination date after she complained about the decision to terminate her. It made no difference to the court that the employer had already made the decision to terminate the employee by the time she complained (Alvarez v. Royal Atlantic Developers, Inc., 11th Cir, July 2010).
Tips: Anytime an employee engages in a protected activity (e.g., complaining of harassment or making a safety complaint) and you take any adverse employment action against them because of that protected activity (in this case, moving up the termination date, or transferring the employee to a less favorable job) you have the perfect recipe for a retaliation claim. For more information, check out Vigilant’s Legal Guide, “Retaliation Claims: How to Avoid Them” (1308) or contact your Vigilant staff representative.
New reporting requirements for federal contractors
Employers with covered federal contracts must report information on first-tier subcontracts and executive compensation, to be posted on a free, public website, under an interim regulation that applies to federal solicitations issued on or after July 8, 2010. The new rule stems from the Government Funding Transparency Act of 2008 (P.L. 110-252), which aims to reduce waste in federal spending by requiring full disclosure of federal contracts.
The duty to report newly awarded first-tier subcontracts will occur in stages. At first, it applies to subcontracts worth at least $20 million. Beginning October 1, 2010, the threshold drops to $550,000, and then on March 1, 2011, it drops even lower, to $25,000. However, prime contractors whose gross income (from all sources) is under $300,000 don’t have to file reports. Prime contractors also don’t have to file reports on subcontractors whose gross income is under $300,000. The reporting requirements don’t apply to classified contracts or contracts with individuals.
The duty to report the total compensation of the five most highly compensated executives of the prime contractor and of the first-tier subcontractor depends on several factors. It must be reported if the amount of the federal contract or subcontract is at least $25,000, the company receives at least 80 percent of its annual gross revenues from federal sources, the company receives at least $25 million in annual gross revenues from federal sources, and the public doesn’t already have access to the compensation information through filings with the SEC or the IRS (75 Fed Reg 39414, July 8, 2010). Questions about your reporting obligations? Contact your Vigilant staff representative.
NLRB will reconsider cases decided by two-member panel
Now that it’s back up to full strength with five members, the National Labor Relations Board (NLRB) is cleaning up the legal mess that resulted when the Supreme Court threw out 27 months of decisions by a two-member panel. For the 96 cases that were on appeal at the time of the Supreme Court’s decision, the NLRB is asking the federal courts to send them back down to the NLRB for reconsideration. The original two members will rehear the cases along with at least one other Board member (NLRB press release, July 1, 2010). It is still unclear whether the Supreme Court’s ruling will affect the NLRB decisions that were never appealed (see our June 17, 2010 newsletter article on New Process Steel, L.P. v. NLRB, U.S., June, 2010). In one additional clean-up move, the current Board voted to ratify all of the hiring and appointment decisions that were made during the time there were only two Board members (NLRB press release, July 8, 2010).
Q&A: How to handle competing ADA reasonable accommodation requests?
Competing reasonable accommodation requests put one employer between a rock and a hard place in a recent, and rather bizarre, Americans with Disabilities Act (ADA) case. One employee was so allergic to paprika she had taken several trips to the emergency room in the past few years, along with nearly a dozen emergency anti-allergy shots, after food containing paprika was brought into the workplace. Her solution was to obtain a specially trained dog that could sniff out paprika. When she brought the dog to work, a second employee suffered a severe asthma attack caused by her dog allergies. When told she could no longer bring the paprika-sniffing dog into work, she filed a “failure to accommodate” charge with the Equal Employment Opportunity Commission (Source: indy.com, May 12, 2010).
Question: So what is an employer to do in this situation?
Answer: Good question! Employers have an obligation under the ADA to provide a reasonable accommodation to each disabled employee, but there’s no guidance on how to handle incompatible requests. The best suggestion is to get creative. Make sure there’s truly no other option; sit down with each employee, discuss all possible options, and get input from the employees’ doctors. If there still isn’t a solution, you may need to choose which accommodation request to grant. Unfortunately, as this employer found out, being placed in a no-win situation could mean you’re left defending whatever decision you make. See our Legal Guide, “ADA: Reasonable Accommodation and the Interactive Process” (1078) for more help.
CALIFORNIA: Employee can sue for false inducement to relocate to California
A man who moved from India to California for a job can sue his employer for misrepresenting the terms of his employment in violation of California Labor Code section 970, a California court of appeals has ruled. The job offer was for an Internet sales manager position in Los Angeles, paying $10,000 a month. About a year after he started working, he was forced to resign. What happened? For the first few months, all was well. His wife quit her job in India and joined him with their two children. But then his salary was cut in half, so his family moved back to India after only six weeks in the U.S. The company owner (a relative by marriage) allegedly threatened him and refused to give him his final wages unless he signed a release. Although workers’ compensation normally would be the sales manager’s exclusive remedy for emotional distress or similar claims, the court said that argument doesn’t fly when there’s an important public policy at stake—in this case, California Labor Code section 970, which prohibits knowingly making a false representation to induce an individual to relocate for employment. The case will now go back to a jury (Singh v. Southland Stone, U.S.A., Inc., Cal App, July 2010).
Tips: When making a job offer, try to be as accurate as possible in describing the job. If employment is “at will,” say so. See our Model Form, “Job Offer Letter” (4370).
OREGON: Insufficient notice of wage claim gets employer off the hook
Failing to pay an employee about $840 in wages nearly cost one employer an additional $16,000 for the employee’s attorney’s fees, until the Oregon Court of Appeals reversed the trial court’s award. To collect damages and attorney’s fees, Oregon law requires an employee to notify their employer about the potential wage claim, giving the employer an opportunity to remedy their mistake. But this employee’s notice failed to state her name or the amount she was supposedly owed. The employer argued the notice wasn’t specific enough to satisfy the law’s requirements and the appeals court agreed. Thus, the employee was entitled to the $840 for wages owed, but not the $16,000 for attorney’s fees (Belknap v. U.S. Bank National Association, Or App, June 2010).
Tips: Violating wage payment laws may be an easy mistake to make, but it can also be a costly one. If you receive notice from an employee claiming that you owe them money, don’t hesitate to take action! Contact your Vigilant staff representative or your corporate counsel and plan your response immediately. Like the employer in this case, the right response could help you avoid large sum lawsuits. For more information, see our Legal Guide, “Final Paychecks” (1648).
WASHINGTON: Rules on leave for domestic violence finalized
The Department of Labor and Industries (L&I) has issued final rules implementing Washington’s law on leaves of absence and reasonable accommodation for victims of domestic violence. Under the new rules, employees have the right to take leave if they or a member of their family have been a victim of domestic violence, sexual assault or stalking. Vigilant submitted written comments on L&I’s proposed rules, some of which were incorporated into the final rules. See our Model Policy, “Crime Victim Leave Policies for Oregon, Washington and California” (3912) for more information on this law and call your Vigilant staff representative with specific questions.
Can You Believe It!
Here’s something we like to call an “anti-wellness” plan: a woman, currently weighing in at 600 pounds, is intentionally consuming around 12,000 calories a day in an attempt to become the world’s largest mom in the Guinness Book of World Records. Her target weight of 1,000 pounds may be a ways off, but she’s keeping herself busy with YouTube stardom and a potential new reality show (Source: msnbc.com, June 10, 2010).
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UPCOMING EVENTS, TRAINING CLASSES AND WEBINARS:
Budget-friendly training options:
Did you know that you can take an online course for as little as $15, because you’re a Vigilant member? Purchase 20 classes for $288 and pay less than $15 each. Or, you can purchase 10 classes for $264 ($26.40 each), or 5 classes for $248 ($49.60 each). When purchasing, just enter “VIG” and the number of classes you want to purchase to receive the discount (i.e., VIG20 for the 20 class discount). There are over 3,000 topics to choose from including: Business Writing Skills, IT Troubleshooting, Photoshop, Computer Skills, and more! To see a complete list, check out the catalog of online classes.
How do you register and take an online course? Watch our short demo here.
Or, you can view three pre-selected online courses for free here.
Please feel free to give us your feedback, concerns, or requests regarding Training at: training@vigilantcounsel.org.
Training:
Don't see classes in your area? Contact Nicole Forward at n.forward@vigilantcounsel.org to request classes in your community. To learn how to register for open training classes, see our webinar for registering yourself (approximately ten minutes) or registering others (approximately seven minutes).
By attending 10 half-day classes in 5 months, employees can earn a “Fundamentals of Leadership” certificate in Everett, Washington, and Tigard, Oregon, beginning this August. Or, participants can sign up for individual sessions using the links below. To register for the “Fundamentals of Leadership” certificate series, contact Nicole Forward (n.forward@vigilantcounsel.org or 800-733-8620).
Frontline Leadership
August 12, Tigard, OR
August 17, Everett, WA
September 23, Spokane, WA
Communications Skills 101: Interpersonal Communications
August 18, Everett, WA
August 26, Tigard, OR
Hiring the Best (for Supervisors)
August 26, Spokane, WA
Legal Issues for Supervisors
September 9, Tigard, OR
September 14, Everett, WA
Preventing Discrimination and Harassment
September 15, Everett, WA
November 18, Tigard, OR
Communications Skills 102: Intergenerational Communications
September 23, Tigard, OR
Delegating Effectively
October 7, Tigard, OR
Safety Inspections
October 12, Everett, WA
Investigating Accidents
October 13, Everett, WA
Proactive Supervision: Sowing Seeds for Success
October 21, Tigard, OR
November 9, Everett, WA
November 18, Spokane, WA
Training Employees
October 21, Spokane, WA
December 15, Everett, WA
Effective Discipline: When Coaching Doesn’t Work
November 4, Tigard, OR
November 10, Everett, WA
Absence Management
December 2, Tigard, OR
Conflict Resolution
December 14, Everett, WA
Meaningful Meetings and Time Management
December 16, Tigard, OR
Team Building
December 16, Spokane, WA
On-demand webinars:
Recent webinars are available as on-demand recordings that you can watch and listen to on your computer. Available titles range from $99 to $159.
Online courses:
Over 3,000 online courses are available on a variety of topics through a partnership with the Business Training Library (BTL). Employees’ completion of each course can be verified by HR. For more information, see our four-minute webinar on how to access free online demos or our ten-minute webinar on how to take the online courses.
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Vigilant Counsel is a publication of Vigilant, 6825 S.W. Sandburg St., Tigard, OR 97223, telephone 503-620-1710. © 2010 Vigilant. This publication presents general information in nontechnical language. Before applying this information to specific management decisions, consult legal counsel, or consult Vigilant staff in the following offices:
Everett, WA—425-349-4477
Spokane, WA—509-276-2277
Tigard, OR—503-620-1710
Eugene, OR—541-485-7296
Redding, CA—530-222-3500
Writers This Issue: Kristine Cienfuegos, Karen Davis, Diane Weisheit
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