Suits In The WorkPlace

FMLA Regs on the Way

Be on the lookout for new regulations to be issued by the Department of Labor relating to the Family and Medical Leave Act, according to this and several other recent stories.  The regulations may be published as early as today, based on information from our sources.  You may (or more likely may not) recall that these regs are nearly 2 years in the making:  we noted in a post here in November 2006 that the DOL had opened the comment period for the regulations.

Based on the proposed regulations, the changes will certainly have an impact on the day-to-day administration of leave under the FMLA.  Although it is not clear that the final regulations will adopt all the changes in the proposed regulations, some areas mentioned in the proposed regulations include:

• Additional notice requirements the employer must provide to the employee regarding paid leave substitution
• Employees who miss time under FMLA may now be disqualified from perfect attendance bonuses
• Voluntary light duty work resulting from a worker's compensation injury is no longer considered FMLA
• Employers will have 5 days instead of 2 to notify employees of their eligibility for FMLA under certain circumstances
• Employers must provide additional information, such as the amount of FMLA used, and the reason for denying FMLA coverage
• Employees must follow employer call-in procedures even for FMLA leave
• Employers must allow employees 7 days to cure deficiencies in medical certifications

Remember, these are examples of the potential changes, based on what was in the proposed regulations.  You shouldn't start changing policies or notice letters until the final regulations are issued and digested by lawyers, pundits and pollsters.  Once we have the regulations and have analyzed them, we'll publish a more thorough summary and analysis here.

Looking for "Lazy in DC"

I recently came across an interesting Law Review Note discussing some things you may want to consider when looking at publicly available shared information sites (i.e., MySpace, Facebook, Youtube) in the hiring context.

The note, The Newest Way to Screen Job Applicants: A Social Networker's Nightmare, 60 Fed.  Comm. L.J. 597 (Carly Brandenburg, June, 2008), identifies three primary legal concerns when it comes to conducting Internet searches on job applicants. These issues relate to privacy, credibility and hiring discrimination.

Okay, the first issue is a relatively easy one. While I can see a situation where an applicant would assert a claim sounding in privacy, the few cases that address this issue find that a person does not have a privacy interest in what he or she makes publicly available in the public domain. However, some social networks require each user to log-in and to acknowledge its privacy policy or "terms of use" policy. Don't forget to read that policy - it may say things like "may not be used for commercial use" (like the Facebook one) - that probably just means "no advertising" but other sites may have more draconian terms of use.

The second issue is credibility. Anyone can post anything online. Therefore, employers who intend to rely on information posted online for hiring decisions should verify the accuracy of that information before relying on it. This is one of the main reasons we have the Fair Credit Reporting Act - a separate topic in and of itself. The key here is that unless you can see the John Q. Smith who you just interviewed is the same John Q. Smith who goes by the screen name "Lazy in DC" and had a bright orange Mohawk earlier this year (apologies to any "Mr. Smiths" out there), it is best to very strongly consider the source.

The third issue is "unintended, unnecessary knowledge." Sometimes it is better not to know. This is true when it comes to the unknown protected classes of your applicants. For example, if an interview went well and then the next day you look at a Myspace profile (with a bunch of pictures) you now know the candidates gender, race, nationality, marital status and religious affiliations. Therefore, employers should be very cautious when determining if information acquired from the Internet is relevant to job performance and whether there is a legitimate and legal reason to discount a candidate based on what they might have posted online.

Finally, let me say: (1) I am aware of the irony that I am posting this information on a blog free and available to the world (not that the world is looking); and (2) I do not have, nor have I ever had, an orange Mohawk (let’s see if Satterwhite can say the same).