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HR Employment Law FMLA
HR Insight: 30 Years of FMLA 940 788 LaDonna Kearney

HR Insight: 30 Years of FMLA

FMLA Celebrates 30 Years of Providing Employees with Guaranteed Medical Leave. Here’s What You Need to Know.

Ever since it was put into action, the FMLA has made it possible for working Americans to receive a guaranteed 12 weeks of unpaid leave in the event they need to recover from an illness, care for a family member under specific circumstances or stay home with a newborn, all without fearing that they will lose their job as a result. However, keep in mind that employees are usually required to submit a request to take FMLA leave in advance of taking FMLA-related time off.

Which businesses qualify for FMLA-related time off?

Now, the stipulations of the Family Medical Leave Act apply only to businesses that employ more than 50 workers, meaning employees who work at very small businesses often don’t qualify for FMLA leave. If your company meets the size requirement, has employees who have worked within a 75-mile radius and said employees have worked for you for at least 20 workweeks over the course of the current or previous calendar year, then you will be recognized as an employer that can offer FMLA leave.

Requirements of the employees

Any requests made by employees for FMLA leave are expected to be made no fewer than 30 days in advance of the employee’s intended first day of leave. While a 30-day notice is the minimum, employees should notify their employers of their desire to take FMLA leave as soon as possible. After doing so, employees are also required to provide their employer with medical documentation relevant to the FMLA leave request within 15 days of the start of their leave.

Requirements of the employers

On the employer side of things, an employer has to notify the employee who is requesting FMLA leave about the status of their request within five business days. If the employer denies the employee’s request for FMLA leave, the employer must provide the employee with a valid reason as to why their request was not approved.

Employees who take FMLA leave are allowed to use the time all at once or in increments. Whether your FMLA leave is taken consecutively or intermittently will depend on the needs of the employer as well as the specifics of the need for FMLA leave. The FMLA allows employees to take their leave in either 12- or 26-week increments over the course of 12 months, but ultimately it’s up to the employers to decide what they prefer their employees do.

For a lot of employers, the FMLA is preferred to be enacted on a rolling basis to ensure their employees do not take 12 weeks of FMLA leave at the end of December followed by 12 more weeks at the beginning of January. And to clarify, even though FMLA leave is unpaid time that employees take off work, their jobs are protected and the employee will still be employed when the FMLA leave period comes to an end.

For some small businesses, their workforces fluctuate and have fewer than 50 workers at times. So what does this mean in terms of their ability to provide their employees with the option of FMLA leave? Essentially, these businesses still qualify for FMLA leave coverage as long as the business employed at least 50 workers for 20 weeks in either the current or previous year.  

Now, are part-time employees eligible for FMLA leave? Such employees can receive up to 12 weeks’ worth of unpaid leave for both family reasons and medical purposes as long as the employees have worked a minimum of 1,250 hours, though this does not include paid nor unpaid time that was taken in the previous 12 months.

In other words, part-time workers are eligible for FMLA leave if they work approximately 24 hours per week over the course of 52 weeks. Although FMLA leave is unpaid, businesses must maintain the existing group health care benefits that were in place prior to the employees’ FMLA leave. Likewise, employers must restore either the same position or an equivalent role for the employee once their leave is over.

According to Entrepreneur magazine, FMLA leave, like intermittent leave, can be taken in separate and multiple blocks of time. However, there are two main circumstances that must be present if FMLA leave is to be taken: The employee is requesting FMLA leave for a medical reason or to focus on a “serious condition.”

Back in 2009, new regulations were put in place in order to define what a serious condition meant in the context of FMLA leave. Since then, a serious condition is recognized as three consecutive days’ worth of incapacity in addition to two visits to a health care provider. These two visits are required to have taken place within 30 days of the incident that caused the serious condition.

The flip side

While FMLA leave is a highly appreciated option for many working Americans, the law still places workers who cannot afford to take unpaid time off work at a disadvantage. Countless other workers who either do not qualify for FMLA leave or cannot take unpaid leave for economic reasons do not yield many benefits from FMLA leave, if any at all. In fact, according to Fortune, upward of millions of employees refuse to take FMLA leave even if they want to simply because the leave is unpaid.

Please note that there are many states in the U.S. that offer paid family leave programs that allow employees to take time off from work for qualifying reasons. Keep in mind that state-regulated programs such as these are not controlled by the federal government nor are they part of the federal FMLA program.

Look into the options in your state and review the requirements to see whether paid family leave or paid medical leave is an option available to you. As always, protect yourself and ensure your options are in compliance with the FMLA by speaking with a legal adviser. Professionals can assist you in the process of mitigating any legal repercussions that may arise and can also help you understand how the FMLA may apply to your specific situation.

©2023

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HR insight noncompete agreements
HR Insight: Are Noncompete Agreements Enforceable? 940 788 LaDonna Kearney

HR Insight: Are Noncompete Agreements Enforceable?

HR Insight – Will My Noncompete Agreements Hold Water?

You may want to require employees to sign noncompete agreements to keep them from working for rival companies. Will these protect the business? The answer is … maybe. Over time, courts have become less willing to uphold strict provisions. Indeed, President Biden has issued an executive order for the Federal Trade Commission to examine abusive noncompete agreements. That order will have little direct impact, but it indicates which way the wind is blowing — toward a more employee-friendly approach. Although no current laws have changed, employers are likely to face more scrutiny.

One size does not fit all.

In many states, noncompete agreements are unenforceable. Period. In at least one jurisdiction, the District of Columbia, laws not only ban noncompete agreements but even grant people the right to work simultaneously for multiple employers.

Some states are also distinguishing between higher- and lower-paid staff, acknowledging that it may not be fair to curtail the job opportunities of rank-and-file employees such as those of upper management.

Where noncompetes are permissible, however, similar principles apply:

  • Is it necessary to protect an employer’s legitimate business interest?
  • Does it cause undue hardship for an employee? Courts do not want employees to be utterly blocked from finding new work.
  • Is a public interest involved? Certain industries such as medicine and education are so important that public policy supports them.
  • How long and how far does an agreement extend?

With a variety of industries and firms operating across the board, you must drill down into the provisions regarding each situation. The broader the time span and geographic area at stake, the less likely the agreement is to be enforceable. Reasonable duration and scope may differ greatly from one company to another. It may be excessive to demand national or global restrictions for a local, in-state business. Many noncompetes are typically drafted to remain in force for one or two years — indeed, judges tend to frown on lifelong prohibitions.

The crux is an employer’s legitimate interests. The object is to prevent employees from harming their employers by introducing their best customers to a competitor, sacrificing hard-earned goodwill or disseminating confidential knowledge and trade secrets. The former boss does not want their employees to start their own breakaway company or develop competing products, let alone recruit other former coworkers to a new rival venture.

Consider consideration

Contract law generally requires a quid pro quo to validate an agreement, and noncompetes are no exception. A legitimate contract requires something of value to which the other party is not already entitled.

Although a job offer may be contingent on a prospective employee signing a noncompete, how about those employees you are already employing? If you want them to sign new noncompetes, they need something extra now to count as consideration. That something can take diverse forms, from more money or new job responsibilities to a fancier title or increased benefits such as vacation time. It need not be very valuable, but it must be concrete.

A short checklist for business owners

Watch out for common pitfalls when you are structuring and maintaining your noncompete agreements.

  • Enforce your agreements evenhandedly and without exception across your workforce to avoid any discrimination charges.
  • If you operate in multiple states, be careful about conflicting state laws.
  • As a buyer or seller of a business, be sure to receive noncompetes from the other side for relevant employees.
  • In case your noncompetes eventually get struck down, use confidentiality agreements for additional backup.
  • Include noncompete language in employment contracts to cover fired employees.
  • Tactfully remind any departing employees about any noncompetes they may have signed.

The law of noncompete agreements depends on a host of specific conditions and circumstances. Be sure to consult with industry experts for advice in drafting or interpreting your agreements. Reach out to PeepTek Solutions for further HR Insight: noncompete agreements and other topics.

©2023

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Employee Protection - 7 laws that protect employees from retaliation and other forms of discrimination
7 Laws that Protect Employees From Retaliation 1024 577 LaDonna Kearney

7 Laws that Protect Employees From Retaliation

Employment law has evolved over the decades to help protect employees from retaliation and other forms of discrimination. Whether you are an employee or an employer, it is good to be aware of the following laws:

1. Title VII of the Civil Rights Act of 1964

Forbids employers from discriminating against job applicants and employees based on their race, color, national origin, sex or religion.

An employer cannot retaliate against an employee for objecting to discrimination under Title VII, reporting discrimination, filing a discrimination charge or participating in a discrimination legal proceeding. 

Employers with 15 or more employees must adhere to Title VII.

2. The Age Discrimination in Employment Act (ADEA)

Prohibits discrimination based on their age against job applicants and employees who are 40 years or older.

Under the ADEA, these individuals cannot be retaliated against for opposing the employer’s discriminatory actions, filing a discrimination charge or participating in a discrimination proceeding.

The ADEA covers employers with 20 or more employees.

3. The Americans with Disabilities Act (ADA)

Makes it illegal for employers to discriminate against job applicants and employees with disabilities.

Title V of the ADA prohibits employers from retaliating against qualified individuals who object to the employer’s unlawful practices or have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”

The ADA applies to employers with 15 or more employees.

4. The Equal Pay Act (EPA)

Requires that employers compensate men and women equally for performing the same work at the same location.

Designed to eliminate gender-based wage discrimination, the EPA also forbids employers from retaliating against employees who exercise their rights under the act.

All employers must comply with the EPA.

5. The Fair Labor Standards Act (FLSA)

Establishes federal minimum wage, overtime, child labor and recordkeeping standards.

In addition, the FLSA protects employees who have filed FLSA-related complaints from retaliation. Among other things, an employer cannot retaliate against an employee for participating in a Department of Labor audit, testifying in a legal proceeding, filing a wage complaint or communicating with Wage and Hour Division investigators.

The FLSA covers most private-sector employers.

6. The Occupational Safety and Health Act (OSHA)

Sets federal health and safety standards to protect people on the job.

Per Section 11(c) of the OSHA, it is unlawful for employers to retaliate against employees who assert their rights under the act — such as by complaining about unsafe or unhealthy working conditions. OSHA also oversees more than 20 whistleblower protection laws.

Any employee can file a complaint with OSHA if he or she believes his or her employer violated a retaliation or whistleblower law that OSHA administers. 

7. The Family Medical and Leave Act (FMLA)

Requires covered employers to provide unpaid, job-protected leave to eligible employees.

Under the FMLA, employees cannot be punished for exercising their FMLA rights, including taking FMLA leave.

The FMLA applies to employers that have 50 or more employees during at least 20 weeks of the year.

Employers should consider other federal laws — such as the National Labor Relations Act and Title II of the Genetic Information Nondiscrimination Act (GINA) — plus any state laws that protect employees from retaliation. In fact, this is just a brief intro to a wide range of laws, and regulations are always changing. The bottom line? Work closely with legal and HR experts.

©2023

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