Articles Tagged with #FMLA

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Football EquipmentThis is the beginning of a series on the implications of today’s National Labor Relations Board (“NLRB”) decision that Northwestern’s football players, “are employees of the school and therefore entitled to hold an election to decide whether to unionize,” according to The Chicago Tribune.

We’re going to start by focusing on the definition of employee.

The first question is what the NLRB means by “employee.” Well, the National Labor Relations Act defines employee with a long paragraph that starts out pretty broadly with, “The term ’employee’ shall include any employee… unless this subchapter explicitly states otherwise…”  29 U.S.C. 152(3).  The definition goes on to carve out exceptions for agricultural workers, individuals covered by the Railway Labor Act, and some other exceptions.

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The Workplace Policy Institute has a comprehensive analysis of possible legislative and regulatory changes to employment law in the coming year. While the full article is certainly worth a read, here is a short summary of some of the most important points.

  • Congress is unlikely to pass any major legislation ahead of the midterms (surprise), as laws such as the Employment Non-Discrimination Act continue to be stalled in the House. However, some small immigration reforms, such as new visa rules, could be among changes that could make it through Congress. Enhanced protection for whistleblowers may also be on the agenda.
  • Executive branch agencies will likely pursue an aggressive regulatory agenda, partly under the auspices of President Obama’s income inequality push.
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Sometimes, a situation arises where an employee cannot return to work after FMLA leave expires.  Although different lengths of leave have been considered appropriate under the ADA, usually indefinite leave has never been looked at as a reasonable accommodation.  Recently, however, the New York Court of Appeals issued a ruling that may call that assumption into question.

In the case, a bank executive took almost five months of leave for various medical issues, including major depression.  The bank contacted the employee, and asked whether he intended to return to work or whether he intended to give up his position.  The employee responded by stating that he had no intention of giving up his position, and that he had an “indeterminate” return-to-work date.  The bank responded by terminating him.  When the employee filed suit, the bank traditionally argued that his proposal of indefinite leave was not a reasonable accommodation.

Under New York City law, however, the court found that the bank had the burden of showing why indefinite leave would impose an undue hardship on the company.  Basically, the court noted that there is no accommodation that is per se unreasonable, and thus that the bank would have to show more before the court would dismiss the case.  Essentially, an employer faced with an indefinite leave request (in New York City) has to show either that 1) the employee could not perform the essential functions of the position with reasonable accommodation or 2) that the accommodation would result in an undue hardship.  The article notes, correctly, that the bank made a couple mistakes.  First, it ended the reasonable accommodation “interactive process” too early before finding out necessary information.  Second, it didn’t appropriately figure out how the employee’s indefinite leave was affecting its business.  By figuring out what hardships it was facing, the employer would have been in a better position to discuss the employee’s situation, and to engage with the employee about what kind of leave he was requesting.

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Our first article this week has an interesting look at FMLA

eligibility for an employee who likely didn’t work the minimum number of hours

in the prior year.  In particular, the

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The 4th Circuit recently held that the discovery

of poor performance reviews was sufficient basis to fire an employee, even

though that employee had had recent positive reviews, and even though the