Setnor Byer's Risky Business

Family & Medical Leave Act - Armed Forces

In light of recent military-related amendments to the Family and Medical Leave Act (FMLA), should I update the FMLA notice currently posted in my employees' break room?

Yes. The Family and Medical Leave Act (FMLA), which generally applies to employers with 50 or more employees, was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. On January 28, 2008, President Bush signed into law the National Defense Authorization Act (NDAA), which includes a provision that allows eligible employees to take up to 26 workweeks of leave during a 12-month period to provide needed care for a family member who suffers a serious illness or injury while on active duty in the Armed Forces. The NDAA also provides that eligible employees are entitled to a total of 12 workweeks of leave "because of any qualifying exigency (as the Secretary shall, by regulation, determine)" arising out of a family member's active duty in the Armed Forces.

The regulations interpreting the FMLA, as originally enacted, require that every covered employer "post and keep posted on its premises, in conspicuous places where employees are employed...a notice explaining" the FMLA's provisions and providing information concerning the procedures for filing complaints of violations of the FMLA. Even though the Department of Labor (DOL) has yet to address the NDAA in its regulations, the DOL did create the "FMLA Poster Insert for Military Leave Amendments," which generally describes the recent military-related amendments to the FMLA. Until the DOL amends the general FMLA Poster to include the NDAA amendments, covered employers would be wise to post both the original poster and the insert in a conspicuous place on their premises.

Counting Employees for COBRA

If an employer has 13 full-time employees, each of whom works 40 hours per week, and 10 part-time employees, each of whom works 20 hours per week, can this employer qualify as a “small-employer plan” under the Consolidated Omnibus Budget Reconciliation Act (COBRA)?

Yes.  After a qualifying event, COBRA gives certain former employees the right to elect temporary continuation of health care coverage at the employer’s group rates.  COBRA’s continuation of coverage requirement does not apply to a small-employer plan, which is a group health plan maintained by an employer who normally has employed fewer than 20 employees during the preceding calendar year.  Although all full-time and part-time employees are taken into account when determining whether an employer had fewer than 20 employees, each group of employees is counted differently.  A full-time employee counts as one employee.  However, each part-time employee counts as a fraction of an employee, with the numerator (the top number) of the fraction equal to the number of hours worked by the part-time employee, and the denominator (the bottom number) equal to the number of hours that must be worked on a typical business day to be considered a full-time employee.

Though this formula may sound complicated, it’s fairly easy to apply.
In the situation at hand, the employer’s 10 part-time employees work 20 hours per week out of the 40 hours per week ordinarily worked by full-time employees, thus producing a fraction of 20/40, or ½.  Therefore, each part-time employee is counted as ½ of an employee.  Ten employees counted as “half” an employee equals 5 “whole” employees, which, when added to the number of full-time employees, 13, total 18 employees.  Since this number is fewer than 20, this employer may qualify as a small-employer plan.

Age Discrimination in Employment Act

Does an aggrieved employee havt to wait a specific period of time before filing a lawsuit against my organization under the Age Discrimination in Employment Act?

Yes.  The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.  Under the ADEA, it is unlawful for an employer with 20 or more employees to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment.  However, before filing a lawsuit against his or her employer, an aggrieved employee must first file a charge with the Equal Employment Opportunity Commission (EEOC).  Specifically, the ADEA provides that “no civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC.”  Under this provision, an aggrieved employee must file a charge with the EEOC and wait at least 60 days before filing a lawsuit against the employer.  The purpose of this 60-day waiting period is to give the EEOC time to work with prospective defendants (employers) to “promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.”

Although there has been some confusion as to what constitutes the filing of a “charge” with the EEOC alleging discrimination under the ADEA, the United States Supreme Court recently ruled that, so long as the regulatory requirements have been met (i.e., an allegation has been made that includes the name of the charged party), a filing by an aggrieved employee will be deemed a “charge” if it can be reasonably construed as a request for the EEOC to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.  According to the Supreme Court, whether or not the EEOC takes any action in response to the “charge” is generally inconsequential and does not affect the employee’s right to file a lawsuit against his or her employer.

Employment Practices

If one of your male employees complains about being sexually harassed by several male co-workers, should you take this seriously?