Saturday, September 17, 2011
The WINNER of SHBA's "South Holland Appreciation Days" Raffle!
I am pleased to announce that the Winner of my prize for the South Holland Business Association's South Holland Appreciation Days Raffle for free legal services is Lazette Toney of Harvey, Illinois. She has chosen the Corporation services. Ms. Toney is starting a not for profit organization, and needs help getting that off the ground. I'll be calling to meet with her in the next week or so, and hope to have a photo and perhaps a promotion about her organization in a future entry.
The NLRB and Facebook: What can Employers do about what thier Employees post on socia media sites?
In my last Law Blawg entry, I commented on how the National Labor Relations Board ("NLRB") has weighed in on the issue of how employees can or cannot use social media to disparage their employers. The news hasn't been necessarily good for Employers.
Let's set the scene: A poorly performing employee starts making disparaging, even slanderous remarks about his boss on his Facebook page. Several of his co-workers jump in (they are the employee's "friends" on Facebook), and post comments, agreeing with the original premise, and adding their own fuel to the fire. The Employer gets wind of this, and disciplines the employee for violating the company's policy about rude and discourteous behavior. The NLRB ruled this violated the National Labor Relations Act ("NLRA").
How is this so? Behavior offensive to company policy is protected when its broadcast to the world over the internet? What is going on?
Let's set the scene: A poorly performing employee starts making disparaging, even slanderous remarks about his boss on his Facebook page. Several of his co-workers jump in (they are the employee's "friends" on Facebook), and post comments, agreeing with the original premise, and adding their own fuel to the fire. The Employer gets wind of this, and disciplines the employee for violating the company's policy about rude and discourteous behavior. The NLRB ruled this violated the National Labor Relations Act ("NLRA").
How is this so? Behavior offensive to company policy is protected when its broadcast to the world over the internet? What is going on?
All Employers, even those who don't have union employees, need to understand how the NLRA applies to them. In my last post, I explained the threshold requirements for determining whether an Employer is subject to the act. Generally, if your business has employees, and the volume of your business is over $50,000.00, the NLRA governs your business. Even if your employees are not in a union.
Once an Employer knows the NLRA applies, they need to understand its limitations. Section 7 of the NLRA protects employees who engage in “concerted activity” for their “mutual aid and protection.” Usually, protected concerted activity ("PCA") is defined as activity that is “engaged in with or on the authority of other employees” That means activity that extends beyond behavior that is done by and on behalf of an individual employee. PCA may also be found when it is the “logical outgrowth of concerns expressed by the employees collectively.”
Last month, the NLRB’s Acting General Counsel issued a report summarizing the NLRB’s recent social media decisions.The NLRB’s Division of Advice indicated that the following situations did not qualify for protection as PCA under Section 7 of the Act:
- A bartender had a Facebook conversation with his stepsister in which he complained that he had not had a raise in five years and did the job of a server without receiving tips. The conversation also contained rude comments about customers. No co-worker responded to the comments.
- A recovery specialist at a non-profit residential facility for homeless people had a Facebook conversation while at work with two non-employee friends. She posted comments about how the overnight shift was “spooky” and made jokes about the clients. No co-worker responded to the posts.
- A customer service employee at a large retail store posted disparaging remarks about her manager and later added a profane rant about the incident that precipitated the original post on Facebook. Co-workers responded only with “hang in there”-type remarks.
On the other hand, the Acting General Counsel’s report discussed several situations the NLRB found to be PCA, including the following:
- An employee’s negative Facebook post about her supervisor that drew supportive comments from co-workers and led to further negative comments by the employee.
- A former employee posted dissatisfaction that she owed state taxes because of her employer’s tax withholding policy and inability to do paperwork correctly. One employee clicked “Like” and other employees asserted they also owed money and intended to discuss it at a meeting.
What can Employers do to deal with this issue, or to head it off before it becomes a problem? I am an advocate for encouraging my Employer clients to establish clear, objective, written policies to indicate what they expect from Employees. However, a work rule or policy will violate the NLRA if the rule restrains or explicitly restricts employees from exercising their rights under the NLRA, including their right to engage in PCA. A rule is unlawful if (1) employees would reasonably construe the language to prohibit (or “chill”) the exercise of their rights under the NLRA, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of the employees’ rights under the NLRA.
The NLRB report discussed several examples of social media policies that violated the NLRA. Specifically, the following social media policies were unlawful:
- Prohibiting employees from making “disparaging comments” or engaging in “inappropriate discussions” about the company, superiors or co-workers.
- Prohibiting employees from posting pictures of themselves which depict the company in any way
- Prohibiting “offensive conduct” and “rude and discourteous behavior” in a broad manner, without limiting language that would remove the rule’s ambiguity with regard to PCA. In general, the NLRB finds that broad prohibitions reasonably tend to chill the exercise of employee rights under the NLRA.
Employers therefore must be extremely careful when drafting and enforcing social media policies. Even if you have a non-union shop, you need to carefully consider and review your social media policies. According to the NLRB, employees have the right to discuss terms or conditions of employment and workplace concerns. Will your policy tend to restrict this? If so, it needs revision. In addition, it appears that this kind of social media activity by employees must be analyzed on a case-by-case basis with an eye towards the audience and the content of supportive comments. If your not sure what to do or how to analyze the facts in light of the NLRA's restrictions, please consult your attorney. A knowledgeable employment lawyer can help you draft effective policies, and enforce them with less risk of a violation.
Thursday, September 15, 2011
The NLRB's New Posting Requirements -- if You're an Employer, You Need to Read This!
The National Labor Relations Board ("NLRB") recently issued a new rule (See Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30, 2011) (to be codified at 29 C.F.R. §§ 104.201et seq.)) requiring most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act ("NLRA"). The rule becomes effective November 14, 2011.
This new rule mandates particular language to be included in this required notice, including information about employees' rights to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities. Employers must display this notice in the form of an 11-by-17-inch poster in all places where other personnel notices are typically posted. If the Employer has a system for communicating with employees about personnel rules or policies on intranet or internet sites this notice must also be included on those sites. The particular content of the notice is mandated by the rule. If 20 percent or more of an employer's workforce is not proficient in English, the notice must be posted in their foreign language. Copies of the official notice will be available from NLRB regional offices and from the NLRB website at www.nlrb.gov.
But don't assume that because your workforce is not unionized that this new requirement does not apply. The rule applies to all employers subject to the NLRA. Who is subject to the NLRA? Odds are if you have a business with employees and have any volume of business, the NLRA governs your relationship with your employees. The NLRA covers most private sector employers that engage in interstate commerce above certain minimal financial levels. In certain specific instances, the NLRB contains revenue-based jurisdictional limits that are different for particular business types or industries. For example, if your in the business of running an office building or shopping center, the threshold limit is $100,000 in revenue; for law firms, the threshold is $250,000; for private schools, the threshold is $1 million (which is the highest revenue limit listed in the jurisdictional standards). If your business is not specifically listed, the default threshold is $50,000. (There are certain categories of business that are subject to the NLRA regardless of revenue levels. These include many financial based businesses, such as financial information organizations, accounting firms, and stock brokerage firms). Thus, your business may be covered, and you never knew it.
Note: If you are a federal contractor or subcontractor, and already follow regulations applicable to your industry to post notices informing employees of their rights under the NLRA, you are already in compliance with the new rule.
This new posting will stir up a great deal of controversy, particularly for smaller businesses that have never dreamed of dealing with the implications of NLRA rights in non-unionized settings. The posting will specifically inform employees that they have the right to discuss their wages, benefits and other terms and conditions of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. It will also inform employees that an employer cannot legally terminate, discipline or take other adverse action against employees who exercise these rights.
An Employer who fails to follow this new requirement could be charged with interfering with employee rights under the NLRA. Even if the employee has done nothing else to violate the NLRA, this could be the basis for an unfair labor practice charge. Usually the penalty for failure to follow NLRB posting requirements is minor, as long as the missing poster is the only violation. However, considering the new found slant in favor of unionization by the Obama Administration's appointees to the NLRB, such a violation will certainly result in a further investigation, and the potential for finding allegations of other unfair labor practices. This could be significant, as the violation of the posting rule could toll the six-month statute of limitations that ordinarily applies to charges of NLRA violations. Also, because Employers cannot retaliate against any employee for filing a charge with the NLRB or offering evidence concerning an alleged violation of the Act, an Employer's violation of this new requirement could be cleverly used by employees who anticipate disciplinary action or termination to gain protected status under the Act. This is because, once an employee files a charge, the employee could claim that any adverse action that followed was illegal retaliation.
Therefore, Employers with non-unionized workplaces should be careful to follow this new regulation. The NLRB has been especially active in recent months in bringing unfair labor practice enforcement actions against non-unionized Employers for disciplining employees or adopting policies which purport to limit what the NLRA defines as "concerted activity." For example, the NLRB's Office of General Counsel recently published notice of the Board's rulings on several cases involving social websites, where Management's social media policies or disciplinary actions against what employees were posting on Facebook or Twitter were deemed improper. The Board came to some shocking conclusions regarding how commentary by a group of employees on another employee's Facebook site transformed into "concerted activity," and were protected activities under the NLRA. (I plan to comment on this issue in my next Blog entry).
This new poster requirement adds to all the current, existing notice requirements Employers must follow. For example, the Fair Labor Standards Act, the Family and Medical Leave Act, federal anti-discrimination statutes, and federal workplace safety statutes all have their own mandatory posting requirements. Besides federal posting requirements, Employers are subject to state and local requirements, such as the Illinois minimum wage. Employers should use this new requirement to make sure they are also posting all the employee notices required by law.
This new rule mandates particular language to be included in this required notice, including information about employees' rights to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities. Employers must display this notice in the form of an 11-by-17-inch poster in all places where other personnel notices are typically posted. If the Employer has a system for communicating with employees about personnel rules or policies on intranet or internet sites this notice must also be included on those sites. The particular content of the notice is mandated by the rule. If 20 percent or more of an employer's workforce is not proficient in English, the notice must be posted in their foreign language. Copies of the official notice will be available from NLRB regional offices and from the NLRB website at www.nlrb.gov.
But don't assume that because your workforce is not unionized that this new requirement does not apply. The rule applies to all employers subject to the NLRA. Who is subject to the NLRA? Odds are if you have a business with employees and have any volume of business, the NLRA governs your relationship with your employees. The NLRA covers most private sector employers that engage in interstate commerce above certain minimal financial levels. In certain specific instances, the NLRB contains revenue-based jurisdictional limits that are different for particular business types or industries. For example, if your in the business of running an office building or shopping center, the threshold limit is $100,000 in revenue; for law firms, the threshold is $250,000; for private schools, the threshold is $1 million (which is the highest revenue limit listed in the jurisdictional standards). If your business is not specifically listed, the default threshold is $50,000. (There are certain categories of business that are subject to the NLRA regardless of revenue levels. These include many financial based businesses, such as financial information organizations, accounting firms, and stock brokerage firms). Thus, your business may be covered, and you never knew it.
Note: If you are a federal contractor or subcontractor, and already follow regulations applicable to your industry to post notices informing employees of their rights under the NLRA, you are already in compliance with the new rule.
This new posting will stir up a great deal of controversy, particularly for smaller businesses that have never dreamed of dealing with the implications of NLRA rights in non-unionized settings. The posting will specifically inform employees that they have the right to discuss their wages, benefits and other terms and conditions of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. It will also inform employees that an employer cannot legally terminate, discipline or take other adverse action against employees who exercise these rights.
An Employer who fails to follow this new requirement could be charged with interfering with employee rights under the NLRA. Even if the employee has done nothing else to violate the NLRA, this could be the basis for an unfair labor practice charge. Usually the penalty for failure to follow NLRB posting requirements is minor, as long as the missing poster is the only violation. However, considering the new found slant in favor of unionization by the Obama Administration's appointees to the NLRB, such a violation will certainly result in a further investigation, and the potential for finding allegations of other unfair labor practices. This could be significant, as the violation of the posting rule could toll the six-month statute of limitations that ordinarily applies to charges of NLRA violations. Also, because Employers cannot retaliate against any employee for filing a charge with the NLRB or offering evidence concerning an alleged violation of the Act, an Employer's violation of this new requirement could be cleverly used by employees who anticipate disciplinary action or termination to gain protected status under the Act. This is because, once an employee files a charge, the employee could claim that any adverse action that followed was illegal retaliation.
Therefore, Employers with non-unionized workplaces should be careful to follow this new regulation. The NLRB has been especially active in recent months in bringing unfair labor practice enforcement actions against non-unionized Employers for disciplining employees or adopting policies which purport to limit what the NLRA defines as "concerted activity." For example, the NLRB's Office of General Counsel recently published notice of the Board's rulings on several cases involving social websites, where Management's social media policies or disciplinary actions against what employees were posting on Facebook or Twitter were deemed improper. The Board came to some shocking conclusions regarding how commentary by a group of employees on another employee's Facebook site transformed into "concerted activity," and were protected activities under the NLRA. (I plan to comment on this issue in my next Blog entry).
This new poster requirement adds to all the current, existing notice requirements Employers must follow. For example, the Fair Labor Standards Act, the Family and Medical Leave Act, federal anti-discrimination statutes, and federal workplace safety statutes all have their own mandatory posting requirements. Besides federal posting requirements, Employers are subject to state and local requirements, such as the Illinois minimum wage. Employers should use this new requirement to make sure they are also posting all the employee notices required by law.
Monday, August 29, 2011
CHANGE OF LOCATION for Drawing for free Legal Services
Just to reiterate: I am participating in an exciting event for the South Holland, Illinois, business community. In conjunction with South Holland's annual Heritage Festival, the South Holland Business Association is sponsoring "South Holland Appreciation Days." This will take place from August 29 through September 3, 2011, with an emphasis on September 1 through 3. Participating businesses will offer raffle prizes. Many businesses will be giving away some exciting, valuable prizes, so you'll want to check out the SHBA website at www.shba.org for all the details.
The way it works, is you visit the business during regular hours, and pick up that vendor's business card. You write your personal information on the card, and it's entered into the drawing for the prizes that business offers. Only one card per visit, but you can visit as many times as you want.
As stated above, I have changed my location for the week -- I will now be using office space courtesy of Roger DeGraff and Southland Mortgage in the Park Avenue Office Plaza at 17050 South Park Avenue, South Holland, IL 60473 I'll be there most of the time during that week, but call to make sure at 708-359-4906. I've had special post cards printed for the occasion, making it easy to fill out.
The prize I am offering is a choice of one of the following:
1. A complete Estate Planning Package (includes a Will, applicable advanced directives (i.e. Durable Powers of Attorney for Property and Health Care, HIPAA Authorization, and a Living Will if desired), and appropriate revocable trust arrangements if applicable).
2. A complete Business Entity Set-up Package (where I help you form your Corporation, LLC, etc., and supply all supporting documentation)
3. A complete review of your business's employment policies, or, if you don't have any, I'll help draft them.
This wouldn't be a proper announcement from an attorney without a disclaimer. I am only giving away one prize, a choice of one of the three mentioned above. The prize will only include the legal fees I would normally charge to perform such work. Any additional fees, including without limitation government or license fees, recording fees, title charges, or the costs of funding a trust, must be paid by the Winner. In the South Holland Business Association materials, I was asked to give estimated valuations for these prizes. Those valuations are truly estimates. Every situation is different. A simple estate plan for a young single person just out of college will not be as "valuable" as an estate plan for a couple married for 30 years. I also reserve the right to limit the "size" of these prizes -- while I will certainly make sure the winner gets free legal services to meet their needs, if what the winner wants will cause me to take so much time as to cause me to neglect other important business matters, I will "cap" the time spent at my discretion. For example (and this scenario is highly unlikely), if a company with multi-state locations in states I am not licensed to practice in wants me to review employment policies, I can only review the policies for the locations where I am licensed. In addition, if that company's size would cause me to give away too much of my time, I reserve the right to reasonably limit the scope of the prize. I am sure the winner and I will come to satisfactory agreement, regardless.
I look forward to seeing you all at MB Financial Bank in South Holland the week of August 29th!
Saturday, August 27, 2011
Giving away Free Legal Services in SHBA Raffle!
I am participating in an exciting event for the South Holland, Illinois, business community. In conjunction with South Holland's annual Heritage Festival, the South Holland Business Association is sponsoring "South Holland Appreciation Days." This will take place from August 29 through September 3, 2011, with an emphasis on September 1 through 3. Participating businesses will offer raffle prizes. Many businesses will be giving away some exciting, valuable prizes, so you'll want to check out the SHBA website at www.shba.org for all the details.
The way it works, is you visit the business during regular hours, and pick up that vendor's business card. You write your personal information on the card, and it's entered into the drawing for the prizes that business offers. Only one card per visit, but you can visit as many times as you want.
While I do not yet have a permanent office space outside of my home in town, the good folks at MB Financial Bank are allowing me to "camp out" at in their lobby. That's located at 475 East 162nd Street. South Holland, IL 60473 -- the beautiful marble building with the fountains in front. I'll be there most of the time during that week, but call to make sure at 708-359-4906. I've had special post cards printed for the occasion, making it easy to fill out.
The prize I am offering is a choice of one of the following:
1. A complete Estate Planning Package (includes a Will, applicable advanced directives (i.e. Durable Powers of Attorney for Property and Health Care, HIPAA Authorization, and a Living Will if desired), and appropriate revocable trust arrangements if applicable).
2. A complete Business Entity Set-up Package (where I help you form your Corporation, LLC, etc., and supply all supporting documentation)
3. A complete review of your business's employment policies, or, if you don't have any, I'll help draft them.
This wouldn't be a proper announcement from an attorney without a disclaimer. I am only giving away one prize, a choice of one of the three mentioned above. The prize will only include the legal fees I would normally charge to perform such work. Any additional fees, including without limitation government or license fees, recording fees, title charges, or the costs of funding a trust, must be paid by the Winner. In the South Holland Business Association materials, I was asked to give estimated valuations for these prizes. Those valuations are truly estimates. Every situation is different. A simple estate plan for a young single person just out of college will not be as "valuable" as an estate plan for a couple married for 30 years. I also reserve the right to limit the "size" of these prizes -- while I will certainly make sure the winner gets free legal services to meet their needs, if what the winner wants will cause me to take so much time as to cause me to neglect other important business matters, I will "cap" the time spent at my discretion. For example (and this scenario is highly unlikely), if a company with multi-state locations in states I am not licensed to practice in wants me to review employment policies, I can only review the policies for the locations where I am licensed. In addition, if that company's size would cause me to give away too much of my time, I reserve the right to reasonably limit the scope of the prize. I am sure the winner and I will come to satisfactory agreement, regardless.
I look forward to seeing you all at MB Financial Bank in South Holland the week of August 29th!
Thursday, July 21, 2011
News on the Mortgage Front for the Unemployed
HUD says the forbearance program to allow unemployed homeowners to skip paying mortgage will extend from 3 months to 12 months.
Here's a link to the article in the Chicago Tribune:
<a href="http://www.chicagotribune.com/classified/realestate/chi-hud-unemployed-homeowners-glink-20110720,0,3652641.column"></a>
Here's a link to the article in the Chicago Tribune:
<a href="http://www.chicagotribune.com/classified/realestate/chi-hud-unemployed-homeowners-glink-20110720,0,3652641.column"></a>
Saturday, March 5, 2011
This could only happen in Illinois, and in Cook County
Here is a link to a Chicago Tribune Story involving the former chairman of the Cook County Board, Todd Stroger, filing a claim for unemployment benefits after he lost his bid for reelection.
http://www.chicagotribune.com/news/local/breaking/chibrknews-todd-stroger-seeking-unemployment-benefits-20110305,0,6987397.story?track=rss
http://www.chicagotribune.com/news/local/breaking/chibrknews-todd-stroger-seeking-unemployment-benefits-20110305,0,6987397.story?track=rss
Saturday, February 26, 2011
Illinois Court Holds Errant Golf Shot = No Liability
Golfer off the hook in errant shot lawsuit
A DuPage County judge dismissed Friday a lawsuit against a Naperville golfer whose errant tee shot struck a woman gardening in a backyard adjacent to a West Chicago country club.
Lillian Demo, who owns a house along the 17th hole of St. Andrews Golf and Country Club, sued in 2007 for unspecified damages from Raymond Kinney, who hit the wayward shot Aug. 25, 2005. Demo claims she was struck in the head and still suffers migraine headaches.
According to the suit, Kinney was negligent in failing to aim and properly execute his swing.
In dismissing the lawsuit, Judge John Elsner said the contention that a golfer is negligent and liable when a shot veers off course "is simply not the law in Illinois."
Kinney's attorney, Michael Baggot, said the lawsuit "ignores the fact … that bad shots are inherent in the game of golf. As such, people who live near golf courses or tend their gardens, which are adjacent to a golf course, should be aware of the risk involved in a game of golf."
The dismissal order also noted that Kinney "was well-schooled in the mechanics of golf" and that "there is no evidence that he was facing other than straight down the fairway, his grip on the golf club was improper or that his swing was negligent."
St. Andrews was part of the original lawsuit, but the club last month reached a $30,000 out-of-court settlement, according to court files.
Kinney, who said he's a 17 handicap, happened to be on a golf course in Naples, Fla., on Friday when he was reached for comment.
He said his shot was errant and that he and others in his foursome had yelled "fore." But he said he didn't know how far off course the shot had gone until he walked down the fairway and the woman's husband starting yelling at him.
"When we approached the guy, who said his wife was bleeding, we saw 10 or more golf balls already in the backyard," Kinney said.
Demo could not be reached for comment.
Wednesday, January 26, 2011
Health Law News: WSJ sues to open Medicare Database
WSJ Files Lawsuit To Open Medicare Database.
The Wall Street Journal (1/26, Adams) reports Dow Jones, the publisher of The Wall Street Journal, has filed a lawsuit in the US District Court for the Middle District of Florida to overturn an over three-decades old ban on public access to a confidential Medicare database. In 1979, the American Medical Association successfully sued the US government to keep secret how much Medicare money individual physicians receive. A spokesperson for the Department of Health and Human Services said the agency would not comment while the lawsuit is being reviewed.
The AP (1/26) adds that AMA President Dr. Cecil Wilson "said that members of the public could draw misleading conclusions from the data if it is released, given its complexity and 'significant limitations.'" Physicians who "provide care to Medicare patients are already subject to widespread governmental oversight," Dr. Wilson said in a statement. He also pointed out that "federal agencies and contractors have access to the full range of Medicare data and are aggressively ferreting out improper claims."
(reprinted from the American Health Lawyers Association Members' News Service)
Tuesday, January 18, 2011
School Law: What if I want to send my child to a School in another district? The view from both Illinois & Indiana
One of the most important things a parent can do is to provide his/her child with a good education. Here in the U.S., children are provided an education that is primarily government subsidized through the public school systems. But the ability to attend a particular school is determined by whether the student’s family resides within the geographic boundaries of the district. Unfortunately, many people (particularly poorer families residing in urban areas) live in school districts where the schools are inadequate at best. How can parents find a way to get their children a better education?
The most obvious way is for the family relocate to a better district. But many families can’t afford housing in a more upscale neighborhood, or, in today’s economy, can’t sell their home for enough to make the move. If the family stays put, a private school is an option, but the expense there can be too much, or the student might not meet admission requirements. The family could try home schooling, but if both parents work, this is near impossible.
The last solution is one many families choose -- to simply enroll their kids in the better public school district, even though they don’t live there.
Of course, in most cases, in Illinois, this is illegal. I used to represent several public school districts in the southern suburbs of Chicago. Each semester, these schools discovered dozens of children sent by their parents from inner city Chicago neighborhoods to attend school in the suburbs. To these parents the risk of being caught breaking the law was worth it -- the schools and neighborhoods were safer, and the quality of the education was infinitely better.
But the cost to the school districts where these “cheaters” enroll can be astronomical. According to a recent article in the Illinois Bar Journal, the average cost to taxpayers per student in the Chicago suburbs ranges from $7,000 to $10,000 per year. But if the student is in special education, and requires additional service, the cost can skyrocket to five or six times that amount. The cost of educating each student is presumed to belong to the district in which the student lives.
What happens when a student is “caught” attending school in a district where they don’t live? In Illinois, the school will notify the family that tuition (that is, the school’s cost of educating that student) must be paid. A family that objects and claims the child legitimately resides in district has an opportunity for due process. But proving the child meets the residency requirements is a lot tougher than showing the kid lives in a domicile in the district.
Illinois law provides that in order to prove residency in a public school district, the parent or legal guardian of the child must show 1) that they have legal custody of the child and 2) that the student resides in the district for purposes other than merely attending school.
Under the school code, a minor child is presumed to reside with its parents, or custody can be established by a court order, guardianship, or custody by an adult exercising legal responsibility for the student. But the school code is clear a custody arrangement created for the sole purpose of the child attending school in a particular district is NOT valid.
This last concept is the biggest hurdle in Illinois. Generally, the Courts strictly uphold this rule. So simply having your child move in with Grandma or another relative isn’t enough. Even if that relative has been appointed a legal guardian. Even where there might be some other valid reason for the child to stay with the relative. If the family can’t prove a legitimate, non-school related reason for the move, there is a good chance the family will be handed a tuition bill.
Sometimes, the circumstances are compelling enough to sway the courts. Sometimes broken homes and financial difficulties force the parents to send the child elsewhere. Where the totality of the evidence shows the child’s residency is necessary for a steady or secure family life, the courts might rule in favor of establishing residency in a home other than the parents’. For example, if a single mother abandoned a child, the father is unknown, and the child ends up living with the mother’s sister in a more affluent district, the school might be hard pressed to claim the custody was solely school related. But each case is decided on its facts, and the courts tend to favor the schools.
There are some special rules in Illinois which allow homeless children to attend school where that child lived before they became homeless, or where they are actually living at the time, though there have been instances where districts have refused to enroll students who can’t show residency because they technically don’t have one. In today’s foreclosure crisis, this issue may become more acute.
Then there are the Illinois parents who attempt to establish a second residence themselves. Rather than have the kids live with Grandma in the swanky suburb, one parent will rent an apartment in order to get their child into a better school, while the rest of the family stays in the longstanding family home. Illinois law on residency, however, requires both a physical presence and the intent to make that domicile a permanent residence. For example, if only one parent moves with the child, or if the family resides together in the established home on weekends, leaving the apartment vacant at times when school is not in session, the Courts have not treated the arrangement favorably. Of course, in the case of a divorce, it may be easier to show the reasons for a child to move to the other parent’s abode -- though if there is joint custody, the parents still might have to prove which house the child regularly spends his nights. But in any case, if the family cannot prove the child regularly sleeps in the abode other than to have access to educational programs in the district, there could even be a tuition bill where there IS a family residence in the district.
What about Indiana? Those of us dealing with this situation in the southern suburbs of Chicago can gaze over the state line and see a slightly different picture. While the concepts are similar, Indiana law is not quite so strict. And a recent change allowing school districts (called “school corporations” in Indiana) to “loosen up” residency requirements has really changed the rules completely.
Traditionally, a public school student in Indiana could attend school tuition free in the school corporation where he/she established “legal settlement.” “Legal settlement” was generally defined as where a student’s parents resided, or the resident of a legal guardian. A student could attend school in a corporation where he/she did not reside if the student or his/her parents paid transfer tuition to another school corporation and the second school corporation is willing to accept the student (similar to Illinois’ rules); the student could demand to be “better accommodated” in another school corporation; or the student might have been placed in a licensed health care facility, child care facility, or foster home in an area outside the student's legal settlement.
The concept of “better accommodation” was designed to allow for a student who was pursuing a particular vocational training program or college preparatory course, and their home school corporation did not offer such programs. The student could be allowed to transfer to the district that offered the necessary classes. Other issues that could allow for a “better accommodation” transfer were overcrowding, a medical/disability need, or if the home school corporation lost its certification. If the schools were not cooperative, all this would have to be argued and proved in court. But if the transfer for “better accommodation” was granted, there was no need to pay the tuition. (Illinois has a procedure similar to this for special needs students, but it generally will only be allowed for children that are in special education and require services the home district can’t afford to or doesn’t have the capacity to provide).
But then the Indiana School Law was amended effective July 1, 2010 to allow for what some school officials are calling “open enrollment.” It’s really not “open,” by any means. But the new law allows schools to accept students from other districts for cash tuition. However, each school corporation is allowed to establish its own cash tuition policies, require parents to adhere to them, or decide to not accept students from outside the district at all. The Legislature has pretty much left the details of how this will work up to the individual school corporations.
I have heard rumors that one of the top-rated school systems in Lake County Indiana is openly promoting its cash tuition options -- in effect, advertising for students from other school districts to choose to transfer there, despite not living in that municipality. How can this be?
Last year, the Indiana legislature changed the way schools are funded. Before last year, if a parent wanted to send their student to a school corporation different from their “legal settlement,” the family would be responsible to pay the equivalent of the per-pupil cost of in new school, based on what the school collected in local taxes. But now, public education is pooled into a statewide “general fund.” Thus, public education in Indiana is now funded at the state level by more than just property taxes, rather than at the local level. This means that as long as parents elect to make this choice, and the new school accepts them before final enrollment figures are established in early September of each school year, there will be little or no extra “tuition” that will be required. Indeed, all the family will probably be liable to pay is the difference between the per-pupil cost in their home school corporation and the new one, if any.
This is truly a radical concept. But there are limitations. As mentioned, the school could adopt objective policies to screen potential students, such as minimal academic thresholds. As long as it’s objectively fair, it’s allowed. The old “better accommodation” standards are still available, but probably won’t need to be invoked much anymore. Plus, once a student is accepted by a new school, the school can’t revoke that enrollment; the “legal settlement” is established in the new school corporation, regardless of where the student lives. (Of course, the student could still be excluded for disciplinary or health reasons, as was true in their home corporation). The one big hitch in this concept is athletics. No “cash tuition” transfer to a new school will be allowed if it appears it was done primarily for athletic reasons, and the student involved will be barred from interscholastic sports at the new school.
So there is a stark contrast between the public school residency requirements of Indiana and Illinois. In Illinois, a parent takes a legal risk by trying to enroll his/her student to a school district in which they do not live. For under Illinois law, a family that sends a student to an out-of-district school without paying for it commits fraud. There is also a risk that a family which legitimately meets the residency requirements could be accused of violating the statute in instances where the facts are questionable, e.g. a student coming to live with his divorced father when he starts high school after years of living with his mother.
Indiana, on the other hand, is blazing a new trail in the world of “school freedom, allowing students to attend a school corporation in a town or county they do not live in as long as they are willing to meet certain criteria established by the school and are willing to pay the difference in the tuition. But this is an untested concept. Will many students actually make the switch? How will this affect the poor performing schools? Will the “prime” schools face overcrowding? What happens when a school turns away students that objectively seem to qualify? Only time will tell whether the new Indiana “cash tuition” program will succeed.
Friday, January 14, 2011
Corporate Law: The Illinois Tax Increase and your business
A nice, concise summary of how the new Illinois income tax increase affects businesses:
http://www.chicagocorporateattorneys.com/2011/01/13/what-the-illinois-tax-increase-means-for-business/
http://www.chicagocorporateattorneys.com/2011/01/13/what-the-illinois-tax-increase-means-for-business/
Thursday, January 13, 2011
Estate Planning: For Teenagers??
Planning for the future is important. We need to provide for our family in case something unexpected occurs. Many of my clients achieve a level of “peace of mind” through an appropriately tailored estate plan. But if there are adult dependent children living in the family, the estate plan might need an extra step. Adult dependent children need an estate plan, too.
"Say what? My 18 year old child needs a will?”
Well, not exactly. But your 18 year old child does need to give you the legal authority to act on their behalf should they become disabled and unable to communicate. Why? Because health care providers and the colleges your child attends consider your child an adult when it comes to decisions relating to health care and school records. Add to this the ramifications of the Health Insurance Portability and Accountability Act (known by its infamous acronym “HIPAA”), and health care providers become loathe to disclose any information about your son or daughter.
This shouldn’t happen. The HIPAA privacy regulations offer exceptions which give health care providers some “common sense” discretion to disclose “personal health information” to “a family member, other relative, or a close personal friend.” (45 CFR 164.510(b)). This rule goes on to specifically allow a provider to use its professional judgment and experience with common practice in deciding whether and what to tell such persons.
But many providers overreact, and interpret HIPAA’s privacy protections as an absolute barrier to all disclosure. This leads to absurd results. For example, a client told me about a college sophomore who traveled to an “away game” for the school’s hockey team. This young lady was somehow injured at the game, and transported by ambulance to a local hospital. The student’s parents were notified that their daughter had been hospitalized, but no one was willing to disclose where she had been taken, or the extent of her injuries. Those parents spent a sleepless night worrying until their daughter contacted them the next morning, fortunately not seriously injured.
How can parents avoid this? By having their college aged children execute a durable power of attorney. This is a legal document that permits the child to appoint a parent (or other person) as agent to carry out certain functions and make decisions in their place. It is a simple form that is “fill in the blanks” and signed – no court order or other action is needed (though I do recommend consulting an attorney -- the instructions in the body of the document should be tailored for the specific situation). Under Illinois law, a Durable Power of Attorney for Health Care permits your child to appoint you or your spouse as an agent while expressing their personal wishes about health care decisions in the event they become incapacitated. In addition, I recommend executing a Durable Power of Attorney for Property to cover issues relating to school records (e.g. in the event of an emergency when the child is unavailable or missing, the school clearly understands the child’s intent to allow information to be given to his/her parents).
While the exceptions to the HIPAA privacy regulations should allow parents to receive critical information about the medical treatment of their adult college-aged children, a properly worded and executed power attorney gives parents the specific, direct authority to overcome the misinterpretation of privacy rules. Some students might balk at the idea of their parents having access to their records, but these documents can be personalized to only allow such access in the event of an emergency. I recommend that parents of college aged children arrange to have their kids execute the appropriate powers of attorney before they start school in the fall (or now, as they are returning to school after the holiday break), and have copies filed with the appropriate authorities and health care providers on campus. Then, they can head off situations like the one I described, and be assured that whatever happens, they will be “in the know” regarding their child’s status at school
Wednesday, January 12, 2011
Employment Law: New Laws for the New Year: Employee Credit Privacy Act
As the new year has now begun, its time to focus on a few new laws that took effect on January 1, 2011 that affect the way employers conduct business.
Illinois employers are now prohibited from discriminating against job applicants or employees on the basis of their credit histories. The new "Employee Credit Privacy Act" forbids inquiries about a person's credit history to determine the terms and conditions of employment, such as promotion, discharge, or compensation. While prohibiting employers from obtaining an applicant's or employee's credit reports in many instances, the law does permit employers to conduct thorough background investigations that do not include a credit history or report.
The new law contains some key exceptions which allow employers to still conduct and consider credit checks when filling positions that involve (1) bonding or security under state or federal law; (2) custody of, or unsupervised access to, $2,500 or more in cash or marketable assets; (3) signatory power over businesses assets of $100 or more per transaction; (4) management and control of the business; or (5) access to personal, financial or confidential information, trade secrets, or state or national security information.
I have observed situations where an employee's financial woes led to that person stealing from their employer, or worse, their employer's customers. I have clients in the health care and housing industries that serve senior citizens. Because of the vulnerability level of their clients, these operations sometimes used credit history checks to look out to see if an employee might be more prone to theft if they were experiencing financial difficulties. Unfortunately, this concept is an inexact science. And certainly, personal financial difficulty is not necessarily a barometer for determining who is likely to steal. That appears to be the intent behind this law -- the General Assembly has recognized how truly tough things are in the current recession. Not since the Great Depression have more Illinois workers faced joblessness or tainted credit records. Illinois' unemployment rates have been as high as 3 to 4 percentage points above national averages. In signing the law, Governor Quinn said, “A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930s,” adding, “This law will stop employers from denying a job or promotion based on information that is not an indicator of a person’s character or ability to do a job well.”
Penalties for failing to adhere to this new law include the rights of aggrieved persons to bring a suit for injunctive relief, damages or both, and to recover attorneys' fees incurred in successfully bringing suit. It also prohibits employers from retaliating or discriminating against anyone who has filed suit under its provisions, testified, assisted or participated in an investigation, proceeding or action concerning its violation, or opposed such a violation. Interestingly, the law also prohibits employers from discriminating or retaliating against one who “was about to” do any of these things.
Illinois employers are now prohibited from discriminating against job applicants or employees on the basis of their credit histories. The new "Employee Credit Privacy Act" forbids inquiries about a person's credit history to determine the terms and conditions of employment, such as promotion, discharge, or compensation. While prohibiting employers from obtaining an applicant's or employee's credit reports in many instances, the law does permit employers to conduct thorough background investigations that do not include a credit history or report.
The new law contains some key exceptions which allow employers to still conduct and consider credit checks when filling positions that involve (1) bonding or security under state or federal law; (2) custody of, or unsupervised access to, $2,500 or more in cash or marketable assets; (3) signatory power over businesses assets of $100 or more per transaction; (4) management and control of the business; or (5) access to personal, financial or confidential information, trade secrets, or state or national security information.
I have observed situations where an employee's financial woes led to that person stealing from their employer, or worse, their employer's customers. I have clients in the health care and housing industries that serve senior citizens. Because of the vulnerability level of their clients, these operations sometimes used credit history checks to look out to see if an employee might be more prone to theft if they were experiencing financial difficulties. Unfortunately, this concept is an inexact science. And certainly, personal financial difficulty is not necessarily a barometer for determining who is likely to steal. That appears to be the intent behind this law -- the General Assembly has recognized how truly tough things are in the current recession. Not since the Great Depression have more Illinois workers faced joblessness or tainted credit records. Illinois' unemployment rates have been as high as 3 to 4 percentage points above national averages. In signing the law, Governor Quinn said, “A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930s,” adding, “This law will stop employers from denying a job or promotion based on information that is not an indicator of a person’s character or ability to do a job well.”
Penalties for failing to adhere to this new law include the rights of aggrieved persons to bring a suit for injunctive relief, damages or both, and to recover attorneys' fees incurred in successfully bringing suit. It also prohibits employers from retaliating or discriminating against anyone who has filed suit under its provisions, testified, assisted or participated in an investigation, proceeding or action concerning its violation, or opposed such a violation. Interestingly, the law also prohibits employers from discriminating or retaliating against one who “was about to” do any of these things.
Monday, January 10, 2011
Employment Law: FMLA: Dealing with Intermittent Leave
Many employers who deal with the Family and Medical Leave Act's ("FMLA") provisions for intermittent leave know what a headache it can be.
What do we mean by "intermittent" leave? The FMLA provides that an employee can take time off on an occasional basis, as opposed to taking off work for a predetermined block of time, such as a month, week or entire days at a time. This is only allowed if the employee's doctor certifies that such arrangements are medically necessary. The employee is purportedly required to schedule this intermittent leave in a manner that will not be disruptive to the employer's operations.
An employee can use intermittent leave if they themselves have a qualifying health condition, or where a family member's condition is intermittent and where the employee is needed only intermittently. For example, an employee who needs to care for a child might normally share the care of this child with other family members or third parties, but must be available in emergencies.
An employee can take intermittent or reduced schedule leave for a variety of reasons:
Some common specific examples are employees who suffer from severe chronic conditions such as diabetes, asthma, or migraines, but are usually able to report to work and perform the job. Because of the nature of the condition, it is impossible to predict when the employee will suffer an "attack," and therefore need a brief time off period or seek treatment. In such cases, the physician will certify the employees condition, but rather than scheduling a leave of absence and a date of return, the certification will explain that the condition is not likely to ever clear up, and the need for time off will be open ended.
While this provision of the FMLA is obviously well intentioned, and people who suffer from these kind of debilitating conditions can sympathize with the need for intermittent leave, it has been my experience that managing intermittent leave serves as a "migraine headache" for employers. For example, an employee will present a doctor's certification which indicates the employee needs unscheduled leave with little or no notice to the supervisor based upon symptoms that are subjective or unverifiable for an open-ended period of time. Then, at the drop of of a hat, an employee will request time off based on "moving targets" such as pain or fatigue. This can happen in the middle of a busy work day -- and if the condition manifests itself in truly subjective ways, such as a psychological disorder, and the employee starts taking more and more intermittent time off, and employer can feel like he's being taken advantage of.
A client of mine that ran a free standing long term care facility (a nursing home) called me to complain about employees so taking advantage of intermittent leave that the manager wished to institute testing procedures to verify if employees were truly ill. I warned the manager that if a physician certified the condition, its difficult for an employer to second guess the diagnosis -- we must leave such interpretations to the professionals, and run the risk of a claim for retaliation or interference if we insist on making employees jump through additional hoops. But the manager complained that I didn't understand the depth of the problem. He proceeded to send me copies of records. A significant portion of his nurse aide employees had been certified for intermittent leave for conditions such as diabetes or migraine headaches. It was ironic how on Fridays or Mondays in the summer when the weather was nice how many of these employees would suddenly need to take time off to treat their conditions. It was significant enough an issue that the facility often had to hire agency staff to fill in for these absences at great expense. The manager felt that these employees were gaming the system.
Usually, there is little an employer can do to address the issue when the medical condition and need for intermittent leave is certified. The key is managing the problem.
One possible way to address the problem was discussed in a recent federal case, decided by the 8th Circuit Court of Appeals for an employer located in Nebraska. It gives employers some hope that they might not need to grant a request for this kind of leave because the need for frequent, unscheduled, unpredictable leave over an extended period of time might mean that the employee is not qualified for duty.
In Wisbey v. City of Lincoln, Neb., the plaintiff worked as an emergency dispatcher for a municipality. The job description for the position required the plaintiff to work in high pressure situations, including the ability to "think and act quickly and calmly" in helping respond to emergencies. Plaintiff sought approval for intermittent FMLA leave because of needing time off to deal with some psychological issues -- specifically depression and anxiety, stating in her application that she had a serious health condition that rendered her unable to perform the essential functions of her job. She submitted a medical certification from her physician, stating that she suffered from recurring depression and anxiety, which interfered with her sleep, energy level, motivation, and concentration. The doctor stated that she would require intermittent leave "over the next 6 months or longer." He left blank the "anticipated return to work date."
In light of the certification, the City questioned whether plaintiff was able to adequately perform her job as an emergency dispatcher. The City scheduled a fitness for duty examination with a psychiatrist, who reported that plaintiff suffered from "chronic relapsing depression" that "intermittently interferes with her ability to function at full capacity at work vis-a-vis tiredness," and that she was not "fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work."
In response, the City initially put plaintiff on administrative leave with pay and scheduled a Personnel Board hearing. At the hearing, plaintiff testified that her fatigue would not interfere with her work, because she would simply stay home when she felt tired. After the hearing, the City terminated plaintiff. .
Plaintiff sued the City, claiming that her termination violated several Federal laws, including the FMLA. The Federal District Court granted summary judgment for the City, and Plaintiff appealed.
The Court of Appeals affirmed. The Court explained that the FMLA supports two kinds of claims -- for "interference" and "retaliation." To establish an interference claim, an employee need only show that an employer denied some benefit to which the employee was entitled under the FMLA. The court determined that there was no valid claim for interference because plaintiff was never actually denied any FMLA leave. But the Court held that even if plaintiff's FMLA request had been denied, the FMLA did not give her the right "intermitent leave" for "six months or longer." Quoting a 2005 decision in Spangler v. Fed. Home Loan Banke of Des Moines, the Court stated:
What does Wisbey mean for Employers?
It certainly appeals to supervisors who regularly face employees who treat long-term intermittent FMLA leave as a ticket to take time off whenever they feel like it, without notice or further explanation. However, business owners must take care. The plain language of the FMLA clearly allows for intermittent leave over extended periods of time. Medical certification of the need for intermittent leave is not to be taken lightly. However, Wisby suggests that in certain situations, such as safety-sensitive positions and jobs where regular attendance is a crucial requirement, an employee's serious health condition could render the employee unfit for duty, regardless of the availability of leave under the FMLA. In such cases, it might be permissible for an employer to terminate an employee's employment without first allowing an employee to exhaust all available FMLA leave. However, employers should be cautious about exercising that option, as other courts (such as our own 7th Circuit here in Illinois and Indiana) faced with different factual scenarios may be less friendly to the unfit-for-duty argument.
Another way to deal with intermittent leave is to make sure the employer is carefully and accurately tracking the time off the employee uses. The rules promulgated to allow for implementation of the FMLA allow employees to use time frames as small as hours – perhaps even fractions of hours – as the basis for an episode of intermittent leave, provided the medical certification requirement is met. If an employer keeps track of how much time off the employee has taken, an employee who has been "abusing" or "gaming" the system might use up all of their statutorily allotted leave time. An employer is not required to give more time off than necessary -- giving the employer the opportunity to end the employment relationship because there is no time off left to give.
All eligible employees are entitled to 12 workweeks of leave during any 12-month period. But the regulations define a “workweek” as the average time worked per week by the employee while logging the necessary 1,250 hours in the previous 12 months so that the employee is FMLA eligible.
For example, if an employee is full time (i.e. 40 hours per week) they get 12 5-day weeks of leave. But where an employee regularly works a 4 day week, they might meet the 1,250 hour FMLA threshold, but will only get 12 4-day weeks of leave. So, if an employer is keeping track of leave an employee's leave time and the leave is being taken intermittently, the full time employee will have 60 days/480 hours of FMLA leave, the 4 day per week employee will have only 48 days/384 hours). Then, if the employer adopts a policy to count all time off because of illness towards FMLA (including paid sick time -- FMLA leave is generally unpaid time off), then the employee is better positioned to deal with abuse of intermittent leave. I recommend coming to an understanding with employees using intermittent leave prior to commencement of any of the leave time, particularly where the employee is not working 5 days a week, and get it in writing, either as part of the documentation sent to an employee regarding notice of the FMLA leave, or a separate letter agreement.
It has been my experience that employees who appear to abuse intermittent FMLA leave also take a lot of time off, or try to excuse other time off, for other reasons. As absences mount, the ability to deal with an employee simply because they aren't there to do the job becomes a little easier. It may also connect to the Wisby concept of not being fit for duty because they aren't there to do the job.
Of course, some employers rely on strict attendance policies which only allow for a limited number of absences. This is dangerous if not applied within the context of the FMLA. For example, requiring intermittent leave takers to provide some kind of notice to the employer when they are taking time off, or to help arrange for a replacement to cover for them are possible solutions, too, but the FMLA does not allow for absolute standards where the health condition is unpredictable. Employers are required to be flexible.
Finally, the successful management and tracking of intermittent leave time can be a win/win situation. A valued employee who happens to suffer from a condition (or has a family member who suffers from a condition) that requires intermittent family leave will be grateful for the opportunity to use the time off when needed, and that the employer has treated them fairly. Effective record keeping and established employment policies which are applied in an even-handed manner go a long way to avoid FMLA claims in this area.
What do we mean by "intermittent" leave? The FMLA provides that an employee can take time off on an occasional basis, as opposed to taking off work for a predetermined block of time, such as a month, week or entire days at a time. This is only allowed if the employee's doctor certifies that such arrangements are medically necessary. The employee is purportedly required to schedule this intermittent leave in a manner that will not be disruptive to the employer's operations.
An employee can use intermittent leave if they themselves have a qualifying health condition, or where a family member's condition is intermittent and where the employee is needed only intermittently. For example, an employee who needs to care for a child might normally share the care of this child with other family members or third parties, but must be available in emergencies.
An employee can take intermittent or reduced schedule leave for a variety of reasons:
- planned medical treatment that is medically necessary;
- unanticipated medical treatment that is medically necessary;
- recovery from treatment;
- recovery from a serious health condition; or
- providing care or psychological comfort to an immediate family member with a serious health condition.
While this provision of the FMLA is obviously well intentioned, and people who suffer from these kind of debilitating conditions can sympathize with the need for intermittent leave, it has been my experience that managing intermittent leave serves as a "migraine headache" for employers. For example, an employee will present a doctor's certification which indicates the employee needs unscheduled leave with little or no notice to the supervisor based upon symptoms that are subjective or unverifiable for an open-ended period of time. Then, at the drop of of a hat, an employee will request time off based on "moving targets" such as pain or fatigue. This can happen in the middle of a busy work day -- and if the condition manifests itself in truly subjective ways, such as a psychological disorder, and the employee starts taking more and more intermittent time off, and employer can feel like he's being taken advantage of.
A client of mine that ran a free standing long term care facility (a nursing home) called me to complain about employees so taking advantage of intermittent leave that the manager wished to institute testing procedures to verify if employees were truly ill. I warned the manager that if a physician certified the condition, its difficult for an employer to second guess the diagnosis -- we must leave such interpretations to the professionals, and run the risk of a claim for retaliation or interference if we insist on making employees jump through additional hoops. But the manager complained that I didn't understand the depth of the problem. He proceeded to send me copies of records. A significant portion of his nurse aide employees had been certified for intermittent leave for conditions such as diabetes or migraine headaches. It was ironic how on Fridays or Mondays in the summer when the weather was nice how many of these employees would suddenly need to take time off to treat their conditions. It was significant enough an issue that the facility often had to hire agency staff to fill in for these absences at great expense. The manager felt that these employees were gaming the system.
Usually, there is little an employer can do to address the issue when the medical condition and need for intermittent leave is certified. The key is managing the problem.
One possible way to address the problem was discussed in a recent federal case, decided by the 8th Circuit Court of Appeals for an employer located in Nebraska. It gives employers some hope that they might not need to grant a request for this kind of leave because the need for frequent, unscheduled, unpredictable leave over an extended period of time might mean that the employee is not qualified for duty.
In Wisbey v. City of Lincoln, Neb., the plaintiff worked as an emergency dispatcher for a municipality. The job description for the position required the plaintiff to work in high pressure situations, including the ability to "think and act quickly and calmly" in helping respond to emergencies. Plaintiff sought approval for intermittent FMLA leave because of needing time off to deal with some psychological issues -- specifically depression and anxiety, stating in her application that she had a serious health condition that rendered her unable to perform the essential functions of her job. She submitted a medical certification from her physician, stating that she suffered from recurring depression and anxiety, which interfered with her sleep, energy level, motivation, and concentration. The doctor stated that she would require intermittent leave "over the next 6 months or longer." He left blank the "anticipated return to work date."
In light of the certification, the City questioned whether plaintiff was able to adequately perform her job as an emergency dispatcher. The City scheduled a fitness for duty examination with a psychiatrist, who reported that plaintiff suffered from "chronic relapsing depression" that "intermittently interferes with her ability to function at full capacity at work vis-a-vis tiredness," and that she was not "fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work."
In response, the City initially put plaintiff on administrative leave with pay and scheduled a Personnel Board hearing. At the hearing, plaintiff testified that her fatigue would not interfere with her work, because she would simply stay home when she felt tired. After the hearing, the City terminated plaintiff. .
Plaintiff sued the City, claiming that her termination violated several Federal laws, including the FMLA. The Federal District Court granted summary judgment for the City, and Plaintiff appealed.
The Court of Appeals affirmed. The Court explained that the FMLA supports two kinds of claims -- for "interference" and "retaliation." To establish an interference claim, an employee need only show that an employer denied some benefit to which the employee was entitled under the FMLA. The court determined that there was no valid claim for interference because plaintiff was never actually denied any FMLA leave. But the Court held that even if plaintiff's FMLA request had been denied, the FMLA did not give her the right "intermitent leave" for "six months or longer." Quoting a 2005 decision in Spangler v. Fed. Home Loan Banke of Des Moines, the Court stated:
Even had Wisbey's FMLA requests been denied, the FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial absences or a right to take unscheduled leave at a moment's notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide occupational qualification....As for the retaliation claim, the Court held that plaintiff had lost her job because she was not fit for duty, not because of any exercise of rights under the FMLA.
What does Wisbey mean for Employers?
It certainly appeals to supervisors who regularly face employees who treat long-term intermittent FMLA leave as a ticket to take time off whenever they feel like it, without notice or further explanation. However, business owners must take care. The plain language of the FMLA clearly allows for intermittent leave over extended periods of time. Medical certification of the need for intermittent leave is not to be taken lightly. However, Wisby suggests that in certain situations, such as safety-sensitive positions and jobs where regular attendance is a crucial requirement, an employee's serious health condition could render the employee unfit for duty, regardless of the availability of leave under the FMLA. In such cases, it might be permissible for an employer to terminate an employee's employment without first allowing an employee to exhaust all available FMLA leave. However, employers should be cautious about exercising that option, as other courts (such as our own 7th Circuit here in Illinois and Indiana) faced with different factual scenarios may be less friendly to the unfit-for-duty argument.
Another way to deal with intermittent leave is to make sure the employer is carefully and accurately tracking the time off the employee uses. The rules promulgated to allow for implementation of the FMLA allow employees to use time frames as small as hours – perhaps even fractions of hours – as the basis for an episode of intermittent leave, provided the medical certification requirement is met. If an employer keeps track of how much time off the employee has taken, an employee who has been "abusing" or "gaming" the system might use up all of their statutorily allotted leave time. An employer is not required to give more time off than necessary -- giving the employer the opportunity to end the employment relationship because there is no time off left to give.
All eligible employees are entitled to 12 workweeks of leave during any 12-month period. But the regulations define a “workweek” as the average time worked per week by the employee while logging the necessary 1,250 hours in the previous 12 months so that the employee is FMLA eligible.
For example, if an employee is full time (i.e. 40 hours per week) they get 12 5-day weeks of leave. But where an employee regularly works a 4 day week, they might meet the 1,250 hour FMLA threshold, but will only get 12 4-day weeks of leave. So, if an employer is keeping track of leave an employee's leave time and the leave is being taken intermittently, the full time employee will have 60 days/480 hours of FMLA leave, the 4 day per week employee will have only 48 days/384 hours). Then, if the employer adopts a policy to count all time off because of illness towards FMLA (including paid sick time -- FMLA leave is generally unpaid time off), then the employee is better positioned to deal with abuse of intermittent leave. I recommend coming to an understanding with employees using intermittent leave prior to commencement of any of the leave time, particularly where the employee is not working 5 days a week, and get it in writing, either as part of the documentation sent to an employee regarding notice of the FMLA leave, or a separate letter agreement.
It has been my experience that employees who appear to abuse intermittent FMLA leave also take a lot of time off, or try to excuse other time off, for other reasons. As absences mount, the ability to deal with an employee simply because they aren't there to do the job becomes a little easier. It may also connect to the Wisby concept of not being fit for duty because they aren't there to do the job.
Of course, some employers rely on strict attendance policies which only allow for a limited number of absences. This is dangerous if not applied within the context of the FMLA. For example, requiring intermittent leave takers to provide some kind of notice to the employer when they are taking time off, or to help arrange for a replacement to cover for them are possible solutions, too, but the FMLA does not allow for absolute standards where the health condition is unpredictable. Employers are required to be flexible.
Finally, the successful management and tracking of intermittent leave time can be a win/win situation. A valued employee who happens to suffer from a condition (or has a family member who suffers from a condition) that requires intermittent family leave will be grateful for the opportunity to use the time off when needed, and that the employer has treated them fairly. Effective record keeping and established employment policies which are applied in an even-handed manner go a long way to avoid FMLA claims in this area.
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