January 2008 Archives

January 29, 2008

President Signs FMLA Expansion for Military Families

It's official: The FMLA has been amended for the first time in its 15-year history. On January 28, President Bush signed a defense authorization bill that includes new FMLA leave rights. The president vetoed two previous incarnations of this legislation for reasons unrelated to the FMLA provisions.

The new law makes important changes to the FMLA--and leaves significant questions that will have to be answered by the Department of Labor (DOL). Because the law doesn't include an effective date for the new provisions, it looks like they take effect immediately. The law provides for:

FMLA leave for active duty of a family member. In addition to taking leave for their own serious health condition, to care for a seriously ill family member, or for the arrival of a new child, employees are now entitled to FMLA leave for "any qualifying exigency" arising out of a family member's active duty or call to active duty. This leave is part of the regular 12-week entitlement--that is, the employee gets 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member's military service.

Extended leave to care for injured or ill service member. The law also creates an entirely new entitlement for family members who need to care for an injured service member. These employees can take up to 26 weeks of leave in a year (that's 26 weeks total, not 26 weeks plus 12 weeks of FMLA leave for other reasons). In addition to spouses, children, and parents (the usual family members covered by the FMLA), "next of kin"--defined in the law as a service member's "nearest blood relative"--are eligible for this type of leave. This appears to be a one-time-only entitlement; the law says this 26-week leave will "only be available during a single 12-month period."

Regulations called for. The law leaves a number of issues to be determined by regulations issued by the DOL These questions include:


  • What's a "qualifying exigency" that entitles an employee to leave arising from a family member's service or impending service?

  • What certification can an employer require? This question arises both as to the service member's active duty and as to the employee's status as "next of kin."


And speaking of regulations. Last week, the DOL sent proposed FMLA regulations to the Office of Management and Budget. These regs haven't been made public yet, but news reports say that they address medical certifications, notice and waiver requirements, and when leave may begin. (An official at the DOL has characterized the changes as "modest," but that is, of course, in the eye of the beholder.) Once the OMB has reviewed them -- a process that could take up to three months -- the regs will be published in the federal register. Then, there will be a period for public comment before final, binding regs are issued.

Find out more about these new rules in Nolo's article Family and Medical Leave for Military Family Members.

January 22, 2008

Employment Cases Before the Supreme Court: Part IV

Last week, the Supreme Court agreed to hear a really interesting investigation case, making this one of the busiest dockets for employment cases in recent years. The case is called Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, and it raises this question: Is an employee who answers questions as a witness in an internal investigation of sexual harassment protected from retaliation? It amazed me to learn that the Sixth Circuit Court of Appeals said no. The court found that an employer can fire an employee because she participated in an internal investigation. (Click here for links to the briefs and other information about the case, from the excellent resource SCOTUSblog.)

Crawford was a long-term employee who was fired after she was questioned as a witness in an internal investigation of a sexual harassment complaint. After several employees voiced concerns about inappropriate behavior by Dr. Gene Hughes, the employee relations director for the Metro School District, the District investigated. The investigator contacted employees who worked with Hughes, including Crawford, and asked them to answer questions. Crawford told the investigator that Hughes had sexually harassed her and other employees by, among other things, grabbing his crotch, asking to see her breasts, and pulling her head to his crotch.

When the investigation was complete, Hughes was not disciplined. However, three employees who told the investigator that Hughes had acted inappropriately were fired, as was Crawford several months later. (All of these facts are based on Crawford's version of events. Because Metro won on summary judgment, the Court is obligated to view the facts in Crawford's favor.) Crawford filed an EEOC charge and a lawsuit accusing Metro of retaliation.

Crawford lost in federal district court and again at the Court of Appeals.  Both courts found that Crawford couldn't prove illegal retaliation, even if she really was fired for being a witness in the investigation. The reason? Title VII prohibits retaliation only against employees who "oppose" discrimination or harassment, or who "participate" in an investigation, proceeding, or hearing regarding discrimination or harassment. Because Crawford didn't file the original harassment complaint, the courts found that she hadn't opposed sexual harassment. The courts also found that Crawford's statements during the internal investigation didn't count as "participation" because no EEOC charge or lawsuit had been filed at the time.

The federal courts of appeal have reached different conclusions on this last issue: Some have held that the "participation" clause doesn't apply unless there is a pending EEOC charge or lawsuit - in other words, unless the official machinery of Title VII is in play. Others have held otherwise, and have protected witnesses in internal investigations from retaliation.

I am, of course, interested to see how the Supreme Court will resolve this dispute, should it take the case. But to me, there's a more compelling issue at play, and it involves the Farragher/Ellerth affirmative defense to harassment claims. Under those cases, an employer can avoid liability or limit damages in certain harassment cases if it can show that it had an effective complaint policy in place, that it promptly investigated claims and took appropriate disciplinary action, and that the employee failed to use this complaint procedure. Arguably, an employer that fires employees for participating in such an investigation would utterly undermine the effectiveness of its complaint procedures by discouraging witnesses from coming forward - and would have to wave goodbye to that affirmative defense.

But wait - there's more. The Farragher/Ellerth cases essentially make filing an internal complaint of harassment a necessary first step in the process of bringing a lawsuit. An employee who doesn't use the employer's internal procedures to complain may never have her day in court. So arguably, an internal investigation has become part of the official machinery of Title VII, much like filing an EEOC charge or a lawsuit. Under this logic, participating in an internal investigation should be protected just as much as participating in an official investigation.

No matter what the Supreme Court decides, smart employers won't fire or discipline employees for participating in an internal investigation. What purpose would it serve? An employer that retaliates against witnesses ties its own hands: If employees fear for their jobs, they won't volunteer information and might not answer questions honestly. The employer then might not know what's actually going on in the workplace and won't have an opportunity to stop it. Even if witnesses can't sue for retaliation, the employee whose complaint started the investigation in the first place can still sue - and the employer's actions in intimidating witnesses could well be Exhibit 1 in a claim for big dollar damages.

If you need to conduct an internal investigation, pick up a copy of my book, The Essential Guide to Workplace Investigations, which includes all of the information, forms, and guidance you need to get to the bottom of workplace problems -- without ending up in court.

January 7, 2008

EEOC Allows Employers to Cut Benefits to Retirees Eligible for Medicare

After several years of wrangling with AARP, the EEOC has at last issued its final regulation allowing employers to offer lesser health benefits -- or even cut off benefits -- to retirees who are eligible for Medicare. The EEOC's rule creates an exemption to the Age Discrimination in Employment Act (ADEA) for benefit plans that reduce, eliminate, or otherwise change the health benefits available to retirees once they become eligible for Medicare. Because eligibility for Medicare is based on age, plans like this would otherwise be prohibited as age discrimination. The EEOC's rule carves out an exception for these plans. The exception does not apply to benefits offered to current employees, only retirees.

The EEOC says that it adopted the rule to remove an incentive for employers to stop offering retiree health benefits altogether. No law requires employers to offer health benefits to retirees -- or to current employees, for that matter. Requiring employers to offer the same benefits to retirees even if they are eligible for benefits from another source (Medicare) makes the benefit program more expensive. In the face of this expense, many employers were simply eliminating retiree health benefits altogether.

The EEOC first proposed this rule in an interim regulation, in 2004. AARP sued right away to prevent the rule from going into effect. After a few years of litigation, the U.S. Court of Appeals for the 3rd Circuit found that the EEOC had properly issued the rule and gave it permission to finalize the regulation, which it now has done.

Lisa Guerin