May 2009 Archives

Supreme Court Issues Pregnancy Discrimination Decision in AT&T v. Hulteen

Posted by Adria B. MartinelliOn May 21, 2009In: Cases of Note, Pregnancy (Title VII), U.S. Supreme Court Decisions

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Pregnancy discrimination took center stage at the country's highest court earlier this week, when the U.S. Supreme Court issued its decision in AT&T v. Hulteen.   (See my previous post about the case when the Supreme Court first granted certiorari last summer).   On May 19, 2009, the Court reversed the Ninth Circuit’s decision and held that AT&T did not violate the Pregnancy Discrimination Act of 1978 (PDA) by calculating the accrual of pension benefits in a way that gives less retirement credit to employees who took pregnancy leave before enactment of the PDA than to employees who took other kinds of medical leave.6a00e5502a8001883300e5534ed9f98833-320pi

The Court rejected the plaintiffs’ argument based on the Lily Ledbetter amendments to Title VII. The Court held that the Lily Ledbetter Fair Pay Act, which made it “an unlawful employment practice … when an individual is affected by application of a discriminatory compensation decision or other practice, including each time … benefits [are] paid, resulting … from such a decision”…. [did] not help Hulteen. AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been ‘affected by application of a discriminatory compensation decision or other practice.’”

The bottom line is that there are few employers likely to be implementing retirement plans whose accrual policies pre-dated enactment of the PDA in 1978. Obviously, over time, the number of employers facing this situation will only get smaller.

Should an employer be in this situation, however, they can rest easy knowing that as long as any continuing effect of a pre-PDA retirement compensation system is pursuant to a bona fide seniority system, and not the result of an intentional employer to apply different standards of compensation, they will not be in violation of the PDA.

For those who wish to learn more, the Workplace Prof Blog and SCOTUS Blog have excellent posts covering the decision.  For more general information on the ins and outs of the Pregnancy Discrimination Act, see these previous posts or take the Pregnancy Discrimination Quiz at H.R. Hero:

New Study on Trends in Pregnancy-Discrimination Lawsuits

Pregnancy Discrimination Act Includes Infertility Treatments

Case Alert: Pregnancy Discrimination Act Extends to Abortion

June 5: Severance Agreements

Posted by Molly DiBiancaOn May 20, 2009In: Seminars, Past

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Severance agreements are on the minds of many employers today.  Some employers are cutting labor costs out of business necessity. Others are taking a cue from the economy and seriously reviewing their personnel practices.  If this leads to the discovery that some areas may be overstaffed or inefficiently structured, it may make good business sense to lay off employees. Under either circumstance, it is common for employers to offer some type of compensation to those employees being severed.  Constructing an effective and legally enforceable severance agreement is not as easy as writing a check, though.  There are many considerations involved, some of which can be complex and not necessarily obvious. posted note with push pin editable

The EEOC, for example, will challenge releases that attempt to prohibit a severed employee from filing a charge of discrimination or cooperating with an investigation. And some other legal claims are not waivable by law as well. There are many advantages to severance agreements when they are done correctly, but when they are not, they create new legal problems.

Delaware employers who are interested in learning more about the complexities of severance agreements that work should attend our seminar on June 5.  Employment law attorneys Sheldon N. Sandler and Maribeth L. Minella will discuss the intricacies of severance packages on June 5, as the next session in our 2009 Breakfast Briefing series. The session is free for those who register before the program fills up.  As with all sessions in the Breakfast Briefing series, the June 5th event will be held at our offices in Wilmington, Delaware.  Registration begins at 8:30 a.m., with a one-hour discussion to begin at 9 a.m.  To sign up, please e-mail your contact information (name, email address, phone, address, company, and job title) to elawseminars at and be sure to indicate the name or title of the program in the subject line.  Registrations are accepted on a first-come, first-serve basis and confirmation is sent upon acceptance.

We look forward to seeing you on June 5 and, in the meantime, we welcome your suggestions for topics for future seminars.  The next session in the 2009 Breakfast Briefing series is scheduled for September 15, 2009, so be sure to mark your calendar accordingly!

Ethical Implications of "Friend-ing" a Witness on Facebook

Posted by Molly DiBiancaOn May 19, 2009In: Social Media in the Workplace

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The discoverability of Facebook profiles has been discussed with respect to a plaintiff. But what about a non-party’s Facebook page? Is it discoverable? Is it accessible through non-formal discovery methods? Would that be ethical?

The Philadelphia Bar Association issued an advisory opinion that should be of interest to all litigators. The inquiring attorney sought the opinion of the Professional Guidance Committee about the ethical limits on contacting a witness through her MySpace or Facebook page.facebook logo

The attorney had deposed a non-party witness whose testimony was favorable to the opposing side. During the deposition, the witness revealed that she had accounts with Facebook and MySpace. Following the deposition, the attorney visited the witness’ Facebook and MySpace pages but was prevented from seeing the content because of the privacy settings on the accounts. The attorney, therefore, cannot access the pages without the permission of the witness. The attorney indicated that the witness was likely to grant any request for access or “Friend Request.”

The attorney proposed to have his agent try to “friend” the witness and attain the desired information from her pages. The agent would provide only truthful information, such as his real name, but would not disclose the reason for his Friend Request or that he was employed by the lawyer

The Committee determined that the proposed conduct constituted impermissible deception that would violate Rule 8.4 of the Rules of Professional Conduct. Rule 8.4(c) provides that it is misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Specifically, the Committee found that the material omission of the attorney’s agent as to his purpose for making the Friend Request, would constitute deception impermissible under the Rules.

Facebook users, beware. Although the outcome here protects the witness’ privacy, there is an underlying message not discussed in the advisory opinion. The fact that an attorney sought the Board’s opinion indicates the high likelihood that there are others out there engaging in the practice already.

The Myth of Multitasking

Posted by Molly DiBiancaOn May 19, 2009In: Women, Wellness, & Work-Life Balance

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We can't do it all. At least not all at once, says the author of a new book, Rapt:  Attention and the Focused Life.  The book's author, Winifred Gallagher proposes that multitasking really is a myth and says she has the science to prove it.  According to Gallagher, our brains have a finite processing capacity at any given time.  And once that limit is reached, you can pretend to "multitask" all you want but the reality is that your brain is only getting some of the stimulus you're feeding it.  checklist with green pencil

She says this is especially true with sounds, which is why she carries earplugs for use in particularly noisy or busy public places.  The next time you've got Dateline on the kitchen television while cooking dinner and talking to your spouse, think about which of those three activities is really being given the attention you intend.

In an interview with the N.Y.T., Gallagher offers some practical advice for tackling the constant stream of information most of us face. 

She recommends starting your work day concentrating on your most important task for 90 minutes. At that point your prefrontal cortex probably needs a rest, and you can answer e-mail, return phone calls and sip caffeine (which does help attention) before focusing again. But until that first break, don’t get distracted by anything else, because it can take the brain 20 minutes to do the equivalent of rebooting after an interruption.

Of course, this would be so much easier if we didn't have so much to do.  But, such is the delicate balance of single-tasking and still "getting things done."

So You Thought You Understood the Final FMLA Regs?

Posted by Molly DiBiancaOn May 19, 2009In: Family Medical Leave

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When the FMLA final regulations were promulgated in January, employers (and their lawyers) around the country got to work.j0387196  We poured over the two hundred pages of tiny print, deciphering the requirements and determining what had and had not changed.  It was a lot to review and it's a lot to understand.  I've taught something around 15 seminars on the new regs since they were published and I still need to reference the regulations when presented with unusual questions or factual scenarios.  

So I know it can't be easy for employers to manage the complex ins and outs of the new law.  Well, don't get too comfortable with the regulations--more change may be on its way.

Last month, a new bill was introduced (H.R. 2161), which, according to its sponsor, is intended to "restore the [FMLA] to its original intent and spirit."  The bill, To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act, would repeal some sections of the regs and modify others.  For a comprehensive review of the most important changes, jump over to The FMLA Blog

But, for those who are more interested in the summary, here it is:  the bill would be bad for employers. The bill would eliminate the (few) changes in the latest regs that are favorable to employers. 

Employer Notice Requirements Under the Final FMLA Regulations

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

10 Most Important Changes to the FMLA Regulations

Facebook Privacy Settings: A how-to-guide

Posted by Molly DiBiancaOn May 17, 2009In: Social Media in the Workplace

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If you use Facebook (or MySpace, LinkedIn, or any other social network), then you should be aware of the many implications that your posts could have on your professional image.  There are countless stories of employees who are fired when their employer learns of content on the employee's Facebook page.  Courts have held that Facebook profiles are discoverable in lawsuits.  So, although there is no way to ensure entirely that your content is off limits all of the time, the very least you can do is set your privacy settings to get prevent most of the issues most of the time.  3d businessman with magnifying glass

If you aren't sure that you actually know how to set your privacy settings in Facebook, then you should jump over to The Lawyerist, which has an outstanding post that provides step-by-step instructions for achieving the level of privacy most desirable for professionals.  If, on the other hand, you're more interested in the other side of the coin and want to know how you can view Facebook pages of job applicants, candidates, or employees, then you should watch our video on YouTube that walks you through that process.

Other posts on Facebook for Employers:

Employers, Job Applicants, and Google

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

MySpace Post Results in Termination of Nursing Student

Discoverability of Facebook Profiles

Eagles Employee Gets Benched for Comment on Facebook Page

Jerks at Work and on the Web

Posted by Molly DiBiancaOn May 13, 2009In: Jerks at Work

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Jerks at Work.  They don't seem to be going anywhere quick.  But there does seem to be a steady stream of news and resources circulating the world wide web about the topic.  Here are a few recent items.

There is a fascinating article in American Lawyer, titled The End of Sisterhood by Vivia Chen.  Chen proposes that women lawyers are their own worst enemy.  We've posted about this recurring theme before.  See Women Bullies In the Workplace and Women Who Bully Women at Work

Slow Leadership points us to an insightful article on the line between bullying and intense management and concludes (rightfully so, in my opinion), that no good can come of bullying--either to the bullies themselves or to the poor souls who suffer at their hands.  For some more anti-bully posts, see New Conclusions on the Potential Costs of Workplace Bullying, "My Boss Is Killing Me": Why this just may be true, and Top 5 Lessons to Be Learned from the Jerk at Work.

The Workplace Bullying Institute is the online home to Drs. Gary and Ruth Namie, the turn-to experts on workplace bullying.  The website has been recently revamped and lots of new features have been added.  If you don't have it bookmarked already, now is the time.

EEOC Issues Swine Flu Guidance for Employers

Posted by Molly DiBiancaOn May 12, 2009In: Disabilities (ADA), Resources

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Swine Flu is a concern for many employers right now. Employers want to provide employees with up-to-date information about the steps that can be taken to prevent the spread of the swine flu.  Employers also want to prevent the spread of panic where not warranted.  We posted previously with resources for employers. There is a new resource from the EEOC and it takes a different and important approach.  The EEOC's new guidance addresses how employers should manage ADA concerns as they may arise in the context of the swine flu. image

The fact sheet, ADA-Compliant Employer Preparedness For the H1N1 Flu Virus, raises some excellent points.  My favorite is an issue has already come up with several of my clients--what to do if you are concerned about an employee's exposure to the swine flu.  For example, an employee returns from a business trip to Mexico, where he's been for several weeks.  Can you require that he not return to work until he gets tested for the H1N1 flu virus?  Can you require him to work at home or telecommute until the issue can be resolved?  Here's what the EEOC has to say:
May an employer require entering employees to have a medical test post-offer to determine their exposure to the influenza virus?

Yes, in limited circumstances. The ADA permits an employer to require entering employees to undergo a medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination.

Example A:  An employer in the international shipping industry implements its pandemic influenza preparedness plan when the WHO and the CDC confirm that a new influenza virus, to which people are not immune, is infecting large numbers of people in multiple countries. Because the employer gives these medical tests post-offer to all entering employees in the same job categories, the examinations are ADA-compliant.

For additional resources, see: Information for Employers on the Swine Flu

Employment Seminar Update: Layoffs and Reduction in Force Slides

Posted by Molly DiBiancaOn May 11, 2009In: Terminations & Layoffs

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Our annual employment law seminar, held last month, was a tremendous success.  As promised,  3d man providing informaitonwe posted the first of the presentation slides (COBRA and the Economic Stimulus Package), last     week.  Today, we are happy to deliver the slides from Scott Holt and Maribeth Minella's "Layoffs and  Reduction in Force" presentation.  

Mark your calendars--our next seminar will be held on June 5, 2009, as part of our Breakfast Briefing series.  Look for more information this week on the topic and registration.  In the meantime, don't hesitate to let us know if there are topics in particular that are on your radar these days.

For more information on terminations and layoffs,  please see our prior posts, Top Ten Layoff Tips, and Bad Reason #29 to Fire an Employee.

My Top 5 of the 60 Sites in 60 Minutes from the ABA TechShow

Posted by Molly DiBiancaOn May 10, 2009In: Resources

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A perennial favorite at the ABA TechShow is a one-hour segment titled, 60 Sites in 60 Minutes.  During the presentation, the speakers present 60 of the latest and greatest sites on the Internet.  There are sites dedicated to improving your legal practice and your productivity in general.  There are also some wacky websites that fit into the "just-for-fun" category. Despite the name, there are over 100 websites listed on the ABA Techshow's site.  The list included some of  my favorite sites that I use regularly.  Here are a few:

Staying Up to Date

1.  To keep tabs on all the best legal blogs, nothing beats Alltop (Law)Alltop has blog listings for nearly every topic under the sun, including topics of interest to employers, from Careers, to eLearning, to HR, to Corporate Responsibility, to Electronic Discovery.

2.  TechnoLawyer BlawgWorld Newsletter ( is my favorite e-newsletter for keeping up to date with everything technology-related relevant to legal practice.

 Technology Tools

1.  File Genius ( enables users to transfer large files securely.

2.  SlideShare ( is an invaluable tool for anyone who presents to an audience.  For free, you can upload and share your PowerPoint presentations and Word documents and then share them, either by invite, or with the world at large.  Add audio and you've got an instant webinar.  It's also a great resource for inspiration when you've got presenters-block.

Marketing With Ease

Constant Contact ( is an easy-to-use, subscription-based, e-mail marketing program.

Because Nothing Beats a Little Competition

Typeracer ( allows you to "race" online opponents in a battle of the keyboards.  A word of warning, typing as fast as you can type may be a little addictive for those with a competitive spirit. I raced three times and, each time, finished at 73 wpm.  Although I was pretty happy with the score, it's paltry when compared to some of the fastest keyists, who can type more than 160 wpm!

Rude Employees Are Bad for Business

Posted by Molly DiBiancaOn May 10, 2009In: Jerks at Work

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Rude people are bad for business.  Employees who are mean, spiteful, or downright rude are actually harmful to their employer's bottom line. Although it may seem like an obvious conclusion, recent research now proves that this is true. The study, "Overlooked but not untouched:  How rudeness reduces onlookers’ performance on routine and creative tasks," was reported in the May issue of Organizational Behavior and Human Decision Processes.  The researches concluded that "[s]eeing one person be rude to another can stunt a person's creativity, impair their mental performance and make them less likely to be civil themselves. "Mr. Rude by Roger Hargreaves

[via Deliberations] Just one more reason to eradicate jerks at work.  To learn    more about the dangers of jerks at work, check out these earlier posts:

Women Bullies In the Workplace

New Conclusions on the Potential Costs of Workplace Bullying

Women Who Bully Women at Work

"My Boss Is Killing Me": Why this just may be true

Top 5 Lessons to Be Learned from the Jerk at Work

Workplace bullying

It's Friday and Your Boss Is a Total Tool

The Truth About Workplace Revenge

TGIF: Mondays Are Easy, It's Tuesdays that Should Worry You

Posted by Molly DiBiancaOn May 8, 2009In: Just for Fun

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Fridays are great. Who doesn't love knowing that it's the last day of the workweek?  It's just that much easier making it through the workday knowing that there only 8 little hours stand between you and a weekend of freedom.  TGIF. beach reading

Similarly, we can unanimously agree on our disdain for Mondays, right?  Maybe not, says a British researcher.  It's not Mondays that make us cringe but, instead, Tuesday mornings when we're at our worst.  Not just any time on Tuesday morning, either.  It's 11:45 a.m. Tuesday morning, that has us wishing we'd never gotten out of bed. Just before noon on Tuesdays is when we hit the panic button and go into high-stress mode.  

How can this be? Well, according to Graham Waters, whose firm conducted the study, Mondays are so bad that we just coast through the day--not yet prepared to face the workload that awaits us. But this subconscious denial strategy is self defeating. By coasting through Monday, we return to the office on Tuesday only to realize that more work than we'd realized has built up since we mentally checked out on Friday.  When that realization strikes, we go into a panic, working through lunch to compensate for the time missed. 

Oh, it's a cruel, cruel cycle.  [via Unclutterer]

Caregiver Discrimination: The "Sandwiched Generation"

Posted by Molly DiBiancaOn May 8, 2009In: Alternative Work Schedules, Family Responsibilities (FRD), Generations: Boomers, Xers, and Millennials, Women, Wellness, & Work-Life Balance

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EEOC issued Employer Best Practices for Workers With Caregiving Responsibilities, a technical-assistance guide, last week.  Caregiver or Family-Responsibilities Discrimination, according to the EEOC, occurs when an employer makes an adverse employment decision based on the employee's care-giving responsibilities.  Because this type of discrimination is a derivative of gender discrimination, the basic premises begins with parents of young children.  But it extends in the opposite direction, as well, to employers whose own parents are the ones in need of caregiving.  This second category is the less commonly recognized of the two forms of discrimination.  But there is a third type, as well.  A  dual-income household where both caregivers are working and care not only for children, but also for aging parents, is known as a "sandwiched" home.  The sandwiched generation are those who are at a very fragile point, having responsibility for multiple generations.Big kid and little kid with PDAs

As many as 9-13% of American households can be characterized as a sandwiched household.  The typical couple includes a 44-year-old man and a 42 year-old-woman, who have been married for just less than 20 years. Both spouses work full time.  There are two children in the home and two aging parents who require assistance in performing daily tasks of living, such as transportation, shopping, making care-related decisions, housekeeping, and managing money.  

Until the economy enjoys a significant improvement, it is easy to imagine that the number of sandwiched households will continue to grow.  Aging parents who, in good financial times, may have been able to afford the expense of assisted living, may see a more reasonable option as living with an adult child.  Of course, as we continue to outlive previous generations, the number of aging parents will continue to grow. 

Employers can play a key role in the lives of employees facing these challenges at home.  Of course, alternative work schedules can be used to attract and retain the best employees of all ages and in all stages of life.  To a group facing extraordinary pressures at home, an alternative work schedule may separate a good employer from a great one. Even aside from these more formal workplace initiatives, though, employers can take important steps to improve the work-family culture in the workplace.  Managers who are sensitive to employees' personal needs, for example, can be a great source of comfort to an otherwise over-burdened employee.  Guilt is not an emotional area in which they come up short and it's the last thing they need to feel at work when the pressures of home require them to leave early or to take a longer lunch.

For more on Family Responsibilities Discrimination (FRD), see:

Family Responsibility Discrimination. Download of a Short and Sweet Summary of the FRD Now Available

Dec. 2-4: Social Media & HR Summit (Chicago, IL)

Posted by Molly DiBiancaOn May 7, 2009In: Seminars, Past

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Human resources professionals are quickly learning that Web 2.0 is critical to the success of their organizations. Which is why I’m so excited about participating in this exciting seminar, presented by HR Hero and Ragan, sponsored by Aon Consulting.  The seminar will feature some truly extraordinary representatives who will share their insights on how employers can put the world wide web to work for them. 

The seminar includes sessions during a 1-day preconference and 2 days of full conference, and will teach attendees how to use the latest Internet resources to re-engage average employees and turn them into “rock star” contributors. Here are just a few of the highlights:

  • Engage top-talent employees during tough economic times and improve business results by developing internal communication strategies;
  • Define and emphasize your company’s core values to reap the benefits of a healthy, productive culture at work;
  • Connect with your key audience through social media networks and grass-roots methods to guarantee quality hires and positive brand recognition;
  • Use social media to hire and retain top-notch talent and help build your brand;
  • Draft an effective social media policy for your company;
  • Maximize your talent pool to save budget dollars through new recruiting channels such as LinkedIn, Twitter and blogs;
  • Develop a reward strategy when your company has no budget; and
  • Boost employee retention and minimize stress by improving health and financial literacy in the workplace.

For more information and to register, visit the conference’s web page at

Employer Notice Requirements Under the Final FMLA Regulations

Posted by Molly DiBiancaOn May 7, 2009In: Family Medical Leave, HR Summer School

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The FMLA has undergone major change in the past 18 months. First, there was the National Defense Authorization Act (NDAA), an amendment to the FMLA, which took effect in January 2008.  Then, in February, the U.S. Department of Labor (DOL), released its proposed regulations for public comment.  The comments were collected and the FMLA's final regulations were published in November.  Then, on January 16, 2009, the final regulations took effect.  And, since then, employers have been operating under this new--and substantially different--set of regulations.  Whether or not they realize that there's a new set of rules in town is a different question.

For those of you who are aware that the FMLA's final regulations are now in place, you also probably know that the regs impose a set of new responsibilities on employers. I've spoken to Human Resource professionals about the final regulations several times since they were first promulgated, including at our annual employment law seminar last week, where William W. Bowser and I presented an FMLA update twice in the same day to accommodate the large number of attendees.  A single blog post is not the best way to share the many ins and outs of the new law. But I can address one topic that I consider to be critical for employers to understand: FMLA Notices.

FMLA Demonstrative

The final FMLA regs contain substantial changes in the conditions in which an employer can and must give certain FMLA-related notices to employees.  Each of these notices have a great number of complexities that employers are best advised to come to terms with now.  The new regulations are unforgiving when it comes to employer delays.  

Here's the run-down for what employers must know about the required FMLA notices. 

General Notice 

Under the new regulations, this includes the traditional posting requirement.  If the employer has a written policy on leave and benefits or an employee handbook that includes such a policy, the same posting notice must be included.  Employers without a handbook should call me.  Then they should start providing each new employee with the general notice (posting) at the time of hire.

A few points of interest with respect to the General Notice. First, if a significant portion of your workforce is not English literate, the posting must be translated into their language(s).  Second, an employer who is FMLA covered must post the General Notice at all work sites, regardless of whether a work site has any FMLA-eligible employees.

Eligibility Notice and Rights and Responsibilities Notice

Once an employee requests leave, or the employer becomes aware that an employee may qualify for FMLA-protected leave, the employer must give two more notices:  the Eligibility Notice and the Rights & Responsibilities Notice.  Eligibility Notice must be given within 5 business days and must tell the employee whether or not he or she is eligible for FMLA.  If the employee is not eligible, the Notice must provide at least one reason why not.  If the employee has another request for leave in the same 12-month period, the Eligibility Notice need not be issued again unless the employee's eligibility status has changed.

At the same time, the employer must inform the employee of his rights and responsibilities as provided by the FMLA.  Specifically, the notice must state that the leave may be designated as and deducted from any existing FMLA entitlement and it must identify the 12-month period being used when making an FMLA determination.  Most critical, though, is the requirement that the employee be notified of his responsibilities, if any, with respect to providing a medical certification. 

If the employee will be required to provide a medical certification of his or his family member's serious health condition or, in the case of military family leave, certification of a qualifying exigency, he must be informed of this requirement now.  The DOL's certification form can (should) be included with the rights and responsibilities notice. 

Designation Notice

If the employee does not return a medical certification, the employer has no further obligations with respect to notices.  But, if the employee does come back with the certification as requested, the employer's final notice requirement is triggered.  Once the employer has sufficient information to make a determination about whether FMLA will apply to the leave, it must notify the employee of its designation. 

If the leave will not be designated as FMLA, the notice must tell the employee why the leave is not deemed qualifying.  If the leave will be designated, the employee must be notified of the number of designated hours, days, or weeks. 

Key at this stage is the requirement that the notice include information about a fitness-for-duty certification requirement if the employer has one.  And a list of essential job duties if the FFD must address the employee's ability to perform essential job functions. Just to recap this critical requirement, let me point out that, along with a designation notice, the employer must inform the employee that a FFD will be required or waive the ability to require it.  And, to top it off, if you fail to include a list of essential job duties, the FFD will be based on the employee's own description of his or her job duties.  Not ideal.


In case you missed it, here's what you need to know when it comes to FMLA leave notices.  Using the handy-dandy image, above, here's the timeline.  First, you've got to comply with the General Notice requirements--in the form of a posting and policy.  Second, once the employee gives notice of the need for FMLA leave (or you learn of the need otherwise), you must give an Eligibility Notice, informing the employee of his or her eligibility status.  At the same time, you must provide the Rights & Responsibilities Notice, including a notice to the employee that he must provide a certification if one is going to be required.  Assuming the employee returns the required certification, then you must designate the leave as FMLA, non-FMLA, or inform the employee that you do not have sufficient information to make the designation.  And, if you will require the employee to provide a fitness-for-duty certification, you must put him on notice now. 

These now-or-never requirements of the FMLA final regulations require employers to do some real advance planning.  Employers must determine when they will require an employee to provide a certification and under what conditions a fitness-for-duty certification will be necessary.  As if that's not enough work to do, you must also have the essential job functions prepared and ready to go when you send out the FFD information.  That's a lot of planning so if you haven't gotten started, there's no time like the present.

Employment Law Seminar Update: COBRA Presentation Slides

Posted by Molly DiBiancaOn May 6, 2009In: Seminars, Past

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Our annual employment law seminar, held last week, was a tremendous success. The success can be contributed in large part to the great attendees, who always bring a fresh perspective and challenging questions to the forefront of the current discussion.  Many attendees have since requested copies of the slides used at the various sessions. 


Here is the first of them, this one from Tim Snyder's presentation on COBRA and the Economic Stimulus Package.  Others will follow in the next few days. 

Our next seminar will be held on June 5, 2009, as part of our Breakfast Briefing series.  Look for more information in the next week on the topic and registration but, in the meantime, don't hesitate to let us know if there are topics in particular that are on your radar these days.

Employment Law Does Pecha Kucha

Posted by Molly DiBiancaOn May 6, 2009In: Seminars, Past

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Lawyers and brevity. Two words that are not often used in the same sentence. Truth be told, this is probably for good reason. My beloved profession has a reputation for attracting individuals who like to talk. And why not? We’re good at it!

But there are limits. When it comes to speeches, lectures, and presentations, brevity is laudable. A speaker who keeps his remarks brief and to the point will be more memorable and more popular with his audience. Having an average span of approximately 12 seconds, I can say with enthusiasm that a concise message is a message I may actually remember. But let’s face it, the short-and-sweet presentation is more of a fantasy than a reality for many of us.

So, in an effort to keep our audience alive and interested, we tried something a bit different at our annual employment law seminar last week. Usually, we start the seminar with a “Year In Review” presentation—a look back at the various court decisions and pieces of key legislation from the last twelve months that most affect employers. We usually finish that segment with a quick look ahead, a prediction of the legislation and cases on the agenda.

This year, though, there have been so many changes and so many more that are on the table, it was just too much information to cram into a one-hour, two-speaker presentation. Instead, being the adventurous souls that we are, we presented our Year In Review in a Pecha Kucha format.


Continue reading "Employment Law Does Pecha Kucha" »

Job Sharing as an Alternative Work Option

Posted by Molly DiBiancaOn May 4, 2009In: Alternative Work Schedules, Flextime

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Flexible work schedules come in every shape and size. Job sharing is just one type of work arrangement that offers employees flexibility and, in turn, the opportunity for an approved work-life balance. But what exactly is job sharing?  It's just what sounds like--employees share job duties as a way to reduce each person's job duties. Essentially, job sharing is a type of part-time work. It involves two or more workers who are responsible for the duties and tasks of one full-time position.

Some job shares are set up so that each employee handles specific duties.  Other job shares have a less formal division of duties. In either set up, the employees coordinate their schedules so that the regular "shift" is always covered.  When one job sharer is not working, the other is.  There is usually some overlap in scheduling to enable the sharers to communicate.  The division of time can be split evenly but any assignment can be successful.

The most basic requirement for potential job sharers is a well-honed sense of teamwork.  An employee who tends to be controlling of his or her duties may have difficulty in letting go of that control to another employee.  Communication skills also are critical.  The job sharers must be able not only to work well together, but also to be able to communicate when things are going well and when things are going not so well. 

Making It Work When You Work From Home

Posted by Molly DiBiancaOn May 1, 2009In: Alternative Work Schedules

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Telecommuting has been on the rise for several years. Worsening economic conditions have increased the telecommuting trend more than ever, as employers begin to take notice of its potential cost savings and reduced overhead.   Many employees, though, worry that they lack the discipline required to telecommute effectively.  Working from home does require discipline. It requires the employee to be aware of potential distractions that are not issues in the traditional workplace.  people father and son at dad's workplace

But there are strategies to make working from home work for you.  If your employer has asked you to consider telecommuting or if you recently started working from home, here are a few tips to help you succeed at telecommuting:

1.  Stick to a schedule

By scheduling break and meal times, you can prevent taking too many breaks during working time.  If you have a set schedule for lunch, you will be less inclined to take multiple trips to the fridge to "grab a snack."  And when it's time for a break, really take it.  This time to clear your head is critical to continued clarity during working hours.

2.  Dress for success

Don't work in your pajamas.  Get dressed for work as you would if you actually had to leave the house to go to work. We are so susceptible to visual clues that we'd be kidding ourselves to pretend that we don't act the way we look.  So dress the part--it will help you remember that you're not on a vacation day but, instead, need to get down to business.

3.  Set the stage

A similar strategy is to create an office environment that is dedicated just to work.  And when work is done, leave the "office" and join the rest of the family in the rest of the house.  If you are able to have a separate room where you will work during the day, leave the room and close the door at quitting time and don't return until the next day.  The purpose of telecommuting is not to meld your working and non-working times into a single, undistinguishable 24-hour cycle. Just because your office and your home share an address does not mean that you're on call at all times. 

Information for Employers on the Swine Flu

Posted by Molly DiBiancaOn May 1, 2009In: Resources

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Delaware has four confirmed cases of swine flu. Employers who operate near the University of Delaware, where the cases were reported, may get questions from concerned employees.  Even employers who do not operate in or around the Newark campus may see the wisdom in being proactive in helping their employees take measures to avoid the swine flu. The go-to web site for employers is, which provides the latest information from the U.S. government about the disease, where it has been reported, and how to plan and prepare.  image

The Centers for Disease Control and Prevention (CDC), issued a Swine Flu fact sheet directed towards parents and caregivers.  The fact sheet is a great starting point for reliable information that can be provided to employees about the swine flu.  The CDC has other helpful resources, as well, including a printable poster on Stopping the Spread of Germs at Work.  JAN, the Job Accommodation Network, also has published a fact sheet on the swine flu.  This one is designed to assist employers in considering the needs of disabilities during a pandemic flu outbreak. 

Employers may consider posting or circulating the fact sheets to employees and/or management in an effort to prepare for a possible pandemic.