- Of Counsel
How to Avoid Litigation Under the FMLA Individualized Notice Requirements
To protect your business from employment litigation, a business owner should strictly adhere to the rules under The Family and Medical Leave Act (“FMLA” / “Act”). By simply neglecting one aspect of compliance, the court can find your business in violation of the Act. The FMLA is a federal law overseen by the Department of Labor. The rules apply to employers with fifty or more employees. The Act allows for up to twelve weeks of protected leave during a twelve month period, but only when certain requirements are met. Below are points that can assist business owners in managing the FLMA notice requirements:
1. Posting General Notice & Handbook
An employer covered by the FMLA is required to publically post a general notice explaining the Act. The general notice may be posted electronically or as a poster. The general notice must also be included in the employee handbook or in any other written form and distributed to employees.
2. Individualized Eligibility Notice
When an employee requests leave under the Act, or when the employer learns that an employee’s leave may be for a qualifying reason, the employer must notify the employee of his or her eligibility or non-eligibility. The intention of this notice is to provide a “general notice” regarding eligibility under the Act, and unless there are extenuating circumstances, the notice must be submitted within five business days.
3. Individualized Designation Notice
When the employer has adequate information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must again notify the employee. This “individualized designation notice” should include whether the leave will be designated and counted as FMLA leave. Unless there are extenuating circumstances, this notice must be provided to the employee within five business days. Any employee requirements – such as taking paid leave or fitness-for-duty certification upon return – must be stated in the individualized notice.
4. Consequences: Using Employee Handbook as Method of Notice; Failing to Provide Notice
Failure of the employer to comply with the notice requirements may result in liability for compensation, benefits lost due to the violation, or other damages. In a recent case, an employee notified her human resources department prior to taking pregnancy leave. The employer, however, failed to formally classify the employee’s leave as “FMLA leave.” Also, the employer did not provide the individualized notice. When the employee returned to work after her leave, she was terminated. The employee asserted that the employer’s failure to formally classify the leave interfered with her rights and prevented her from making informed decisions. In the same case, the employer never gave the employee an eligibility notice, a rights and responsibilities notice, nor a designation notice notifying her of when leave expired, or when she would be required to return to work. The court held that the information contained in the employee handbook did not satisfy the individualized notice requirements, that the employee was prejudiced by the lack of notice, and that she had been unlawfully terminated.
The Department of Labor has published numerous posters, prototypes, notices, etc. that may be used by employers. https://www.dol.gov/whd/fmla/
The firm is pleased to be a sponsor at the Big Brothers Big Sisters Mercer October 17 fundraiser event at Cobblestone Creek Country Club in Lawrence, New Jersey. The event features dishes from several of the area's finest restaurants, tastings of wine and beer and live music. The evening will honor individuals who volunteer time and commitment making BBBS Mercer a success. For more information go to www.bbbsmercer.org
Womanspace's Annual Communities of Light Event on December 2nd is a public awareness project and fundraising campaign to benefit victims and survivors of domestic violence and sexual assault. The launch event is free and open to the public. It includes a press conference and reception and will take place at 5:30 PM on October 22 at Terhune Orchards, 330 Cold Soil Road in Lawrenceville. Edwin Schmierer, Director with Mason, Griffin & Pierson is a member of the Board of Directors of Womanspace and the firm is a sponsor of the event. The event will honor the Police Chiefs and coordinators of Mercer County. More information at www.womanspace.org.
Mason, Griffin & Pierson is pleased to be a sponsor at the Philly Pops concert to benefit The Foundation of Morris Hall/St. Lawrence, Inc. The Foundation provides funding for skilled nursing, out patient health care, and rehabilitation for residents at Morris Hall and St. Lawrence Rehabilitation Center. The concert will be at the Patriots Theater, Trenton War Memorial. For information and tickets go to www.morrishall.org/events.php
The firm is a sponsor for the November 24 Girls on the Run Central New Jersey 5K in downtown Somerville, New Jersey. Girls on the Run is a program for girls in grades 3 through 8 which teaches girls to be joyful, healthy and confident using a fun, experience-based curriculum which creatively integrates running. Associate Attorney Nicole Sciotto is member of the Advisory Board of Girls on the Run, Central New Jersey Chapter. For more information, including donations and race registration, please visit www.gotrcnj.org.
The firm is a sponsor for the November 2 West Windsor Mayor's Ball. The event takes place at the Boathouse on Mercer Lake in West Windsor and benefits the Princeton Junction Volunteer Fire Company. For more information go to www.westwindsornj.org/WW-givesback/index.html.
Trishka Waterbury Cecil, past President of the New Jersey Institute of Local Government Attorneys (NJILGA), is a presenter at the New Jersey State League of Municipalities Conference in Atlantic City. Mandatory Certification Class For New Board Members, sponsored by New Jersey Planning Officials is on November 19. Muincipal Law Update 2019, sponsored by New Jersey Institute of Local Government Attorneys, and OPMA/Civility/Administration of Public Meetings, sponsored by New Jersey State League of Municipalities are on November 21. For more information, go to www.njpo.org, www.njilga.org or www.njlm.org.