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Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice is provided confirming the dates of leave or when the employee has resumed his or her usual schedule. But an employer’s compliance with federal law includes the obligation to maintain adequate records related to the leave. Failure to do so can have significant consequences.

What Records Must You Keep?

FMLA recordkeeping requirements can be found in a single regulation, 29 C.F.R. § 825.500. That regulation requires employers to keep and preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA).  Records must be retained for no less than three years. Although no particular order or form is required, the records must be capable of being reviewed or copied. 

Covered employers with eligible employees must also maintain records that include basic payroll and data identifying the employee’s compensation. Failure to maintain accurate records can have significant consequences for employers, who have the burden of establishing eligibility for leave. Accuracy is important:  for example, the regulations demand that records document hours of leave taken in cases of leave in increments less than a full day.  Lack of suitable records documenting when leave was taken can also doom an employer’s defense to claims for leave. Special rules apply to joint employment and to employees who are not covered by or are exempt from the FLSA.Continue Reading Recordkeeping: The Often Overlooked Element of FMLA Compliance

On Halloween, the National Labor Relations Board (“Board”) General Counsel’s Division of Advice handed out a rare treat to employers by issuing two Advice Memos (Mimi’s Café, Case No. 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), deeming two particular (and common forms of) at-will employment policies contained in employee handbooks lawful under the National Labor Relations Act (the “Act").  

Earlier this year, an Administrative Law Judge frightened many employers by ruling a particular company’s “at-will” policy violated the Act because it theoretically could make employees believe that they could not form a union or otherwise advocate to change their at-will employment status. That challenged policy stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The case, American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), was settled before the NLRB could review it on appeal. 

The Division of Advice’s Halloween memoranda distinguished American Red Cross case from Mimi’s Café and Rocha Transportation – noting that the at-will policy in American Red Cross used the personal pronoun “I” (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”), which as written essentially constituted an impermissible waiver of any right of employees to try and change at-will status (i.e., to try to form a union).  The Division of Advice also noted that the policy in American Red Cross declared that the at-will employment relationship could never be modified under any circumstances whatsoever, which could be interpreted as chilling employees’ rights under the Act to engage in protected concerted activity such as forming a union.   Finally, the Division of Advice, perhaps dismissively, noted that American Red Cross had settled before getting to the Board level.Continue Reading Where There Is At-Will, There Is A Way: NLRB Issues New Guidance On “At Will” Employment Policies

The National Labor Relations Board (“NLRB”) continues to closely scrutinize employers’ social media policies and practices. As employers struggle to craft policies that promote productivity while at the same time protect employees’ rights, both unionized and non-unionized employers need to be aware of recent NLRB decisions and their impact on employer policies:

Social-Media Based Termination Can Be Acceptable, But Rule Requiring “Courtesy” Is Not

On September 28, 2012, a three-member panel of the NLRB affirmed the termination of a car salesman who posted photographs on Facebook ridiculing his employer, but it rejected the employer’s rule requiring courteous behavior. (Karl Knauz Motors Inc., 358 N.L.R.B. No. 164, Sept. 28, 2012 [released Oct. 1, 2012]). Knauz marked the first time a panel of the NLRB decided a case involving social media; previously, all NLRB guidance in this area came from ALJ decisions or the Board’s General Counsel Memoranda. In Knauz, a sales employee had complained on his Facebook page about his employer, a BMW car dealership, posting photos and criticizing bad food the dealer offered at a sales event; he had also discussed those concerns with other coworkers. He also posted critical comments and photos about an accident during a test drive at the dealership. The employer terminated the employee for his Facebook postings and for violating the employer’s courtesy policy. That policy stated that “[e]veryone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees,” and that “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

The NLRB ultimately declined to decide whether the employee’s complaints about the food were protected activity under the NLRA. The ALJ below had held the food complaints were protected because the employee and his coworkers conceivably were concerned that the low-quality food offered at the sales event would deter customers from coming, thus leading to lower sales commissions for the employees. Instead, the NLRB upheld the employee’s termination, agreeing with the ALJ that the employee’s Facebook postings relating to the on-site accident were not related to any employees’ terms or conditions of employment. 

Continue Reading NLRB Puts Kibosh On Some Employer Social Media Policies

The Obama NLRB’s regulatory agenda continues to fare poorly in the federal courts.  On the heels of court decisions staying the NLRB’s new “notice” requirement, see previous posts here, the United States District Court for the District of Columbia Circuit has just struck down the NLRB’s new rules designed to speed up union representation …

In its long-anticipated decision in Brinker v. Superior Court, a unanimous California Supreme Court has clarified the scope of an employer’s obligation to provide meal and rest breaks to non-exempt employees in California.  The Court’s full opinion is available here.

Meal Breaks

California law requires employers to provide employees with a meal period of not …

The NLRB’s new posting rule, which would apply to virtually all private sector employers, was scheduled to go in effect on April 30, 2012.  Yesterday, we blogged about a South Carolina federal trial court decision striking down the posting rule.  More good news for employers arrived today, as the United States Court of Appeals for …

As previously blogged here, a federal court located in the District of Columbia upheld the National Labor Relations Board’s (“NLRB”) rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act.  While upholding the rule, that federal …

Like most states, Utah’s Worker’s Compensation statute prohibits an employee from recovering disability compensation when “the major contributing cause of the employee’s injury” is the employee’s unauthorized use of alcohol or a controlled substance. See Utah Code Ann. § 34A-2-302(3)(b). If any amount of a controlled substance or its metabolites is found in an injured …

Update: A federal trial court in the District of Columbia has upheld the notice posting requirement in the National Labor Relations Board’s (“NLRB”) recently issued final rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act. To …