iBooks: Coming to a Courtroom Near You?

Posted by Molly DiBiancaOn March 12, 2012In: Tech Tips

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Lawyers are notoriously slow to adopt new technology. This is an unfortunate characteristic of my profession. But there are some innovators in the field. And those innovators may be changing the game for the rest of us.

For this Monday morning, I'd like to direct you to one such innovator and how he is putting the latest technology to use. Specifically, the technology being put to use is the iBook. And, now, with Apple's new iBook Author app, publishing an iBook is about as simple as creating a document using Microsoft Word.

And what do all litigators create with Microsoft Word? Briefs. We write lots of briefs. And what happens when you combine iBooks and legal briefs? Total geek heaven. To see a very geeky-cool example of an iBook brief, check out the post, e-Briefs o the iPad: An Exciting New Tool to Give Attorneys an Edge on Cogent Legal Blog. And then be sure to download the sample brief and view it on your iPad.

I'd love to think that this idea will be the next great trend in litigation but, sadly, I don't think its time has come. Mainly because we don't yet have the ability to file this format in the courts' electronic filing system. But I think the iBook format has tremendous potential as a very accessible way to create compelling content for just about any purpose. How can you put this format to work for your organization?

(H/T to Ted Brooks at Court Technology and Trial Presentation Blog)

Federal Court Upholds NLRB Posting Requirement

Posted by Molly DiBiancaOn March 7, 2012In: Union and Labor Issues

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In January 2011, the National Labor Relations Board (NLRB) promulgated a rule requiring private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The rule required that the notice be posted in a "conspicuous place" and provided for penalties for employers who failed to comply. If the NLRB determined that an employer had failed to comply, it could toll the statute of limitations for an employee who files an unfair labor practice (ULP) charge for any alleged conduct by the employer--not only for conduct relating to the failure to post the notice. A failure to post, alone, also would constitute an ULP.

The rule prompted a small fury among the business community, which challenged the NLRB's authority to promulgate such a rule. A lawsuit was filed by several organizations, including the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation. The suit sought to enjoin the enforcement of the rule, the effective date of which has been delayed several times and currently is set for April 30, 2012.

The U.S. District Court for the District of Columbia issued a ruling in the case on March 2, 2012, striking down part of the notice-posting rule. The court found that the NLRB does have the legal authority to require employers to post a notice--including the notice at issue. The court's decision was not entirely in favor of the NLRB, however, and it rejected the proposed penalties associated with noncompliance. Specifically, the court held that the NLRB does not have authority to extend the statute of limitations to file an ULP charge or to determine that noncompliance constitutes unlawful interference with employees' NLRA rights.

Thus, the NLRB will not be able to find that an employer engaged in an ULP merely by failing to post the notice as required by the rule. Without this enforcement mechanism, the impact of the posting requirement is reduced significantly. At the same time, though, failure to post the notice could be evidence in support of another ULP charge.

A separate suit is still pending in a federal court in South Carolina and it is unclear how the outcome of that case will impact the decision from the District of Columbia. At this time, though, it appears that the NLRB posting requirement will take effect on April 30, 2012. At that time, all employers subject to the NLRA will be required to add yet another poster to their current collections--this one relating to the right of employees to unionize. A copy of the NLRB's suggested posting is available at www.nlrb.gov/poster.

Should Cyber-Screening by Employers Be Legislated?

Posted by Molly DiBiancaOn March 6, 2012In: Background Checks, Hiring, Social Media in the Workplace

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Employers have been cyber-screening job candidates for years now. Although reports vary on how many of the nation's employers are Googling applicants, officially or unofficially. But the practice is a reality.

What also is a reality is the many variations of cyber-screening that exist. On the most moderate end of the spectrum are employers who have instituted a legally defensible practice, as I've written about previously. On the most extreme and unsavory end are employers who require applicants to turn over passwords and log-in informaiton for their social-networking accounts. Bozeman, Montana was the first employer to make the news for this practice; Maryland's Department of Corrections was the most recent.

Many employment lawyers, including me, strongly object to this practice on numerous grounds, not the least of which is the fact that it violates the terms of service of the social-networking sites. And now, it seems, that there may be some politicians who feel the same way.

Law.com reports that a California legislator has introduced a bill that would protect employers who don't cyber-screen job applicants. And bills are pending in Maryland and Illinois that would prohibit employers from asking applicants for log-in information for social-networking sites. The Maryland law is likely a result of the negative publicity the State received after news broke that the Department of Corrections was requiring applicants to turn over their password and log-in information.

So, will these laws be the wave of the future? Perhaps. Are they necessary? Not really. Or at least they shouldn't be. The terms of service for social-networking sites, such as Facebook, prohibit this type of activity in the first instance. But, as long as stories like the one from the Maryland Department of Corrections keep making the headlines, laws like the ones currently pending may continue to appear in state legislatures.

Want to know the right way to cyber-screen applicants? Check out these articles:
Screening Job Applicants with Facebook: Part 1, Part 2, and Part 3.

N.Y. Teacher's Firing Overturned, Despite Facebook Wish that Students Drown

Posted by Molly DiBiancaOn March 6, 2012In: Public Sector, Social Media in the Workplace

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Christine Rubino had been a teacher in Brooklyn for 15 years without any disciplinary history when she was terminated in response to comments she posted about students on her Facebook page. Specifically, Rubino posted that her 5th-grade students "deserved to drown." And, when asked whether she would "let little Kwame float away," Rubino responded with: "Yes. I would not throw a life jacket in for a million," reports the Huffington Post.

Even more shockingly, the comments came just one day after a 12-year-old girl drowned during a class trip to Long Island beach.

A disciplinary hearing officer found the teacher guilty of "misconduct, neglect of duty, and conduct unbecoming her profession" and, as a result, Rubino was terminated. She subsequently appealed to the N.Y. Supreme Court, which overturned the decision.

Writing for the court, Justice Barbara Jaffee described Rubino's posts as "repulsive." Yet, she went on to conclude that, under the circumstances, the termination was too disproportionate to the offense, thereby requiring that the termination decision be overturned.

The district does not have a social-media policy but, according to the N.Y. Post, fired three teachers last year for inappropriate online posts.

This decision is a difficult one to reconcile with some of the recent cases in which similar comments were held to warrant the termination of a teacher. But Evan Brown writes on his Internet Cases blog about an even more perplexing part of the court's decision. He describes the court's take on the issue of proportionality between the nature of the wrong and the consequences imposed as "contextual integrity." Here's the language from the court's decision that Evan cites to:

[

E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.


Note the potential impact of the last part of this sentence. The potential impact is enormous. Essentially, the court says that ignorance of consequences for Facebook posts is legally sufficient to establish a reasonable expectation of privacy. This single sentence effectively recognizes the right to publish to a limited audience; a concept that has been consistently rejected by courts. At least until now.

Rubino v. City of N.Y., 2012 NY Slip Op 30246(U) (N.Y. Sup. Feb. 1, 2012) (PDF)

Resources for Employers: Applicants and Employees Returning from Military Service

Posted by Molly DiBiancaOn March 5, 2012In: Disabilities (ADA), Uniformed Services (USERRA)

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Employer's lawyers have seen an increasing number of questions regarding the obligations relating to employees and applicants returning from military service. There are two important laws that may apply to such individuals--the ADA and USERRA. Although the ADA has been on employer's radar for years, most are less familiar with USERRA. Now is the time, though, to become familiar. The law imposes many obligations on employers and many of those obligations are different than other employment-discrimination laws.

The EEOC has published a new Guide for Employers titled, Veterans and the ADA. The Guide is intended to provide answers to some of the questions employers can be expected to face as veterans return home from military service and seek employment in the private sector. Some of the points covered by the Guide include:


  • What qualifies a disabled veteran for the protections of the ADA;

  • Information about hiring preferences for disabled veterans;

  • When and how an employer may ask whether a veteran with a disability needs an accommodation;

  • Some of the basic differences between the ADA and USERRA.


The Guide includes references to several helpful online resources--all of which are free. One of the references is to the U.S. DOL's VETS program. Once on the VETS site, be sure to bookmark the Pocket Guide to USERRA, a detailed and fairly comprehensive FAQ about USERRA's requirements.

Friday Funnies: Motivational Poster of the Future?

Posted by Molly DiBiancaOn March 2, 2012In: Employee Engagement, Just for Fun

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Sheldon Sandler took the picture below during a recent trip to Granada. Yes, it's a real picture of a real sign on the outside of a real factory.

Granada.png

Admittedly, the picture evokes mixed emotions for me. Part of me cheers, happy for the employer who attempts to set a positive tone for workers about to start their workday.

On the other hand, though, the sign seems to send, well, a bit of a mixed message, doesn't it? Nothing like beating someone with a baseball bat imprinted with a motivational message as a technique to motivate workers, right?

Either way, the sheer extremity of the sign makes me laugh. And that's enough of a reason to post it as this Friday's Funny. Enjoy and have a great weekend!

Online Resource: Restatement of Employment Law

Posted by Molly DiBiancaOn March 1, 2012In: Resources

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Human-resource professionals often ask me about good online resources for their employment-law questions. You can add another to the list. Now available as a free download are the current drafts of the Restatement of Employment Law.

The Restatements, for those who may not know, are an incredible legal resource covering just about every possible aspect of a particular area of law. Restatements are published by the American Law Institute and are drafted by a group of amazing legal minds from across the country. For the employment-law Restatements, this means in-depth coverage of everything from contract formation to privacy to state common-law torts.

So, if you're interested in taking your knowledge of the employment laws to a deeper level or if you fancy yourself as having such knowledge already, check out the latest draft of the Restatement.

[H/T Workplace Profs Blog]

Facebook Users to Friends: "You're Fired"

Posted by Molly DiBiancaOn February 29, 2012In: Social Media in the Workplace

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Employers are well aware of the implications of their employees' social-media and other online activities. Infamously, employees have been less willing to be aware of those serious implications. Perhaps the tide is changing. According to the results of a new report from Pew Internet, social-media users are becoming more aware of the potential consequences of what they post online.

How, you may ask, are users showing their privacy savvy? In these difficult economic times, they're doing what most of us have done. They've made cuts. That's right, social-media users are cutting back on friends.

Social-media users are unfriending Facebook friends, removing unwanted comments, and restricting access to their profiles. For example, 44 percent of respondents said that they deleted comments from their profiles last year. This is up from 36 percent in 2009.
So, is it possible? Are people finally beginning to catch on to the myriad of negative consequences that can stem from online postings? I won't hold my breath but may consider breathing a sigh of relief that some people, at least, are becoming aware of the ramifications of social-media conduct.

Employer Is Liable for Off-Duty Harassment-by-Blog

Posted by Molly DiBiancaOn February 28, 2012In: Harassment, Social Media in the Workplace

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Employee is harassed at work. Employee reports harassment to his employer. Employer investigates immediately. Employer stops harassing behavior. Anything short of this will result in liability. Compliance will preclude liability pursuant to what is known as the Ellerth-Faragher defense.

But what if the harassment occurs outside of work? Certainly, at-work harassment is the most common scenario. But it's not the only scenario that can trigger liability. Today, in the context of social media, this scenario has become easier to imagine. A case decided by a state court in California earlier this month provides a vivid example of precisely this set of facts.

In Espinoza v. County of Orange, the plaintiff was an employee with a physical disability. In 2006, co-workers started two blogs, where they posted critical and spiteful comments about the plaintiff. Some of the posts attacked managers other than the plaintiff and about the workplace generally.

The employer did not sponsor or endorse the blog or participate in it in any official way. The plaintiff complained repeatedly to management of the blog posts, as well allegedly harassing conduct that occurred in the workplace.

Management apparently made some meager efforts to get the employees to stop posting about the plaintiff. For example, there were a couple of emails sent to the co-workers, instructing them to stop the postings. Those efforts were not successful, though, and the plaintiff filed suit for disability-based harassment. Following a trial, the jury awarded the plaintiff nearly a million dollars in damages.

The employer appealed and argued, in part, that it could not be held liable for conduct that occurred outside the workplace. The court rejected this argument. The reality is that the duty of an employer to protect its employees from unlawful harassment. This duty is unaffected by where the location occurs. If, for example, a sales employee is harassed by a customer in the customer's worksite, the employer's duty is unchanged--the law requires that the employer stop the harassment and protect the employee. Similarly, if the harassment occurs in cyberspace, the duty remains the same--the employer must protect the employee and stop the harassment.

Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. February 9, 2012)

(H/T to Eric Goldman at his Technology and Marketing Law Blog. Prof. Goldman also looks at this case from an IP perspective and offers insight into the court's analysis of the employer's immunity argument pursuant to 47 U.S.C. 230).

Redefining "Eligible Employee" under the FMLA

Posted by Molly DiBiancaOn February 27, 2012In: Family Medical Leave

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An employee does not become eligible to take FMLA leave until he or she has worked at least 1,250 hours and 12 months. But, according to the 11th Circuit, being eligible to take leave is not the same as being eligible to request leave. Employers should be mindful of the court's recent opinion when a recently hired employee submits a request for FMLA.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff-employee submitted a request to take FMLA. At the time the request was made, she had not yet passed her one-year anniversary, making her ineligible to take leave. However, the requested leave would have begun after the 12-month mark, when she would have been eligible for FMLA. The employer terminated her before the end of her first year.

The 11th Circuit was asked to decide whether the employee could pursue a claim under the FMLA. In order to make that decision, the court had to determine whether the employee could be considered an "eligible employee" for purposes of the FMLA. As you may imagine, the employer argued that the employee was not an "eligible employee" at the time she was terminated and, therefore, was not protected by the statute.

The court disagreed, finding that eligibility is determined at the time the employee would have taken leave. Here, she would have been eligible for leave because, by that time, she would have been employed for the full 12 months. According to Hunton Labor & Employment Perspectives Blog, the 11th Circuit is the first federal court of appeals to have faced this question.

Although the ruling may come as a surprise to many employers, I think that common sense and good intent would deliver the same outcome. An employer would be well advised to be aware of the message it would be sending by terminating an employee who gives timely notice of her need for FMLA leave. In other words, the employer would be encouraging employees who had a legitimate need for leave to keep mum about the need until completing the first year of employment. It seems that employers would want to have as much notice as possible so it could make the necessary arrangements in planning for the employee's absence.

Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).

IRS to Employers: Raise Your Hand If You've Misclassified Workers

Posted by Molly DiBiancaOn February 20, 2012In: Independent Contractors

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All individuals performing work for an employer should be classified as employees or independent contractors. Employees are then further classified under the Fair Labor Standards Act as "exempt" or "non-exempt" for purposes of overtime compensation. Proper classification of employees and independent contractors can be difficult, and misclassification can lead to significant financial liability in the form of back taxes and overtime pay.  Red 3D Figure Raising Hand

In an attempt to address misclassification of independent contractors for tax purposes, the IRS launched the Voluntary Classification Settlement Program (VCSP). The goal of the VCSP is to properly classify workers, while collecting unpaid payroll taxes for employees improperly classified as independent contractors. As the IRS explained, "this new program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit." An employer's voluntary participation in the VCSP removes the burden of interest and penalties that would be assessed if the misclassification were discovered as the result of an IRS audit.

Despite the many benefits offered by the VCSP, many employers were reluctant to participate because it was unclear whether the facts surrounding the employer's participation would be shared with other government agencies. Of particular concern is the Department of Labor's Wage and Hour Division, which is responsible for enforcing the Fair Labor Standards Act. Employers' concerns were legitimized by the earlier announcement that the IRS, the Department of Labor, and several states would be joining forces to identify wage and hour violations and impose significant fines on non-compliant employers.

In an attempt to address employer concerns about the VCSP, the IRS has issued an FAQ sheet. The FAQ resolved three key fears for employers:

  • The IRS states that it will not share information about VCSP applicants with the Department of Labor or state agencies;
  • An employer that applies for but is not accepted into the VCSP will not automatically be subject to an IRS audit; and
  • Participation in the VCSP is not an admission of liability or wrongdoing with respect to employee classification issues.

With these concerns alleviated, we'll have to wait to see whether employers forward and work with the IRS to address any concerns they may have about whether they have misclassified independent contractors.

See also these previous posts on misclassification of employees:

3d Cir. Rules on Enforceability of Non-Compete Agreements for Independent Contractors

Pennsylvania Passes Misclassification Law

Will "Misclassification Initiatives" Reduce Employers' Use of Independent Contractors?

Friday Funnies: Edison's Take on Job Interviews

Posted by Lauren Moak RussellOn February 17, 2012In: Just for Fun

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The job application and screening process is key to finding and retaining valuable employees. As employment attorneys, we talk a lot about the Do's and Don'ts of job interviews and background checks. So, when we came across Thomas Edison's job interview quiz, we thought it was worth a look.  What we discovered is that we couldn't get a job with Thomas Edison. Could you?

Feds Blunt Delaware's Medical-Marijuana Law

Posted by Michael P. StaffordOn February 13, 2012In: Delaware Specific, Drug Testing, Legislative Update

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Delaware's medical-marijuana program has gone up in smoke. According to the News Journal, Gov. Markell "has suspended the regulation-writing and licensing process for medical-marijuana dispensaries--effectively killing the program." The decision comes in response to a letter from U.S. Attorney Charles M. Oberly III.

The governor's office sought guidance from Oberly about the legal implications of state employees who work at a dispensary. Oberly's response was clear: "State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability" under the Controlled Substances Act.

The death of the Delaware Medical Marijuana Act (DMMA), which was passed in May, 2011, is not due to a unique defect in the statue itself, which shares common elements with other state medical marijuana laws. Instead, the crux of the problem is the intersection of state and federal law and the shifting approach to enforcement taken by the Obama administration.

Despite state statutes like the DMMA, marijuana, medicinal or otherwise, remains illegal under the federal Controlled Substances Act as a "Schedule 1" controlled substance--the same category as drugs like heroin and LSD.

When the DMMA was passed in May 2011, legislators were under the impression that the federal government would not prosecute employees in future dispensaries. This understanding was due to representations by the Obama administration that it would not prosecute individuals for marijuana offenses made legal under state law. That position has changed, however, and the federal Department of Justice is now drawing a distinction between physicians prescribing medicinal marijuana, and individual cardholders, on the one hand, and "large scale, privately owned industrial cultivation centers" on the other. This is problematic for Delaware because the DMMA initially centralizes marijuana distribution in just three Compassion Centers (with one located in each county).

The uncertainty created by contradictory enforcement signals at the federal level has impacted the implementation of medicinal marijuana legislation in other states as well. As we posted previously, a Justice Department warning that "state employees who conducted activities mandated [under a proposed law] would not be immune from liability" led Washington Gov. Gregoire to veto that state's medical-marijuana bill. Similar warnings of potential enforcement actions targeting marijuana dispensaries also led Rhode Island Gov. Chafee to halt plans to create state-licensed compassion centers, as well.

The news should be a relief to Delaware employers concerned about the workplace implications of the DMMA which, among other things, would have made it unlawful for an employer to terminate a cardholder for failing a drug test unless they "used, possessed, or (were) impaired by marijuana" while at work during normal hours. The DMMA also specified that the mere presence of marijuana components or metabolites in a cardholders system would not suffice to establish that they were under the influence of the drug.

While some effort to amend the DMMA to address federal enforcement concerns is likely, for now, medical marijuana's future in Delaware appears hazy, at best.

Does Federal Law Prohibit Lactation Retaliation?

Posted by Adria MartinelliOn February 10, 2012In: Pregnancy (Title VII)

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I recently saw an article in the ABA Journal about a mom who allegedly was fired for wanting to breastfeed at work. The federal judge in the Southern District of Texas concluded in that case that lactation is not "pregnancy, childbirth, or related medical condition" under Title VII, and therefore discrimination on that basis does not constitute sex discrimination. While I strongly disagree with that conclusion, she is not the first judge to draw this conclusion.

The Ohio state judge in the Isotoner decision reasoned that lactation was not "pregnancy related," because a woman could choose to stop it if she wanted to. It is interesting that courts have interpreted "pregnancy-related conditions" broadly in other areas - for instance concluding that not being pregnant is pregnancy-related, yet seem to struggle with the notion that breastfeeding is pregnancy-related.

I suggested in my earlier post that, in light of the existing case law, Congress needs to fix the problem by enacting legislation to make clear that breastfeeding is protected activity. Congress acted. Effective March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) amended the Fair Labor Standards Act to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk. See our earlier post on the FLSA Amendment.

My initial thought upon reading the recent Texas decision was that if the relevant events had occurred after this amendment, the plaintiff may have gotten further with her claim that she was discriminated against for wanting to nurse her newborn. (There are lots of reasons her claim could fail, including if she was terminated for another reason, she was an exempt employee and therefore not covered by FLSA, or the employer had fewer than 50 employees and could therefore assert providing nursing facilities was an "undue hardship" under the amendment). But let's assume for purposes of discussion, that the plaintiff was indeed terminated for asking about where she could pump breast milk, covered under the FLSA amendment, and the company decided they did not want to deal with the hassle. Surely, that would be illegal under the FLSA amendment, right?

The answer is not as obvious as one might think. The amendment related to nursing contains no language regarding retaliation. The retaliation provisions within the broader FLSA statute extend protection only to employees who have "filed a complaint or instituted or caused to be instituted any proceeding under or related to the [FLSA], or has testified or about to testify in any such proceeding." 29 U.S.C. §215(a)(3). This would not protect the plaintiff in the Texas case, who evidently did not lodge any complaints regarding her nursing until she filed her complaint in federal court over her termination.

At least 24 states have their own laws protecting breastfeeding at work. Many include more broad retaliation protection language than FLSA provides. For instance, Maine's law, which require that employers provide similar break times and locations as the federal law, also states that "a]n employer shall not retaliate or discriminate against an employee who exercises the right provided under this section."

If a woman is unfortunate enough to reside in any of the 26 states without such laws, the nursing provisions of the new PPACA law appear to leave a nursing mom exposed, so to speak. Her employer could be required to provide nursing facilities and appropriate breaks under federal law. Instead of complying with that law, an employer could decide merely to terminate the employee because it does not want to deal with the hassle. There appears to be little to protect such a woman under federal law, unless she has registered a "complaint" under FLSA.

The right to breastfeed at work does not fit neatly into existing statutory language. The law needs to be amended in order to protect nursing mothers from retaliation for choosing to exercise their rights under FLSA to take nursing breaks in a designated space. Until that is done, unless the mother complains about the lack of facilities or the failure to give her break time as required under the statute, it appears there is little to protect her if she is terminated for exercising or planning to exercise her rights to pump breastmilk at work.

(FMLA) Form Over Function

Posted by Lauren Moak RussellOn February 7, 2012In: Family Medical Leave, Genetic Information (GINA)

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New FMLA forms appear to be around the corner. In 2008, the U.S. Department of Labor issued a set of forms, which were intended to assist employers in reviewing and granting requests for leave under the Family Medical Leave Act (FMLA). Updated forms have been submitted to the federal Office of Management and Budget (OMB), but have not yet been approved.

Until new forms are issued, the U.S. DOL has indicated that the old forms may continue to be used. However, employers should note that the 2008 forms do not account for recent changes in the law. The most significant change since the forms were issued is the publication of regulations implementing the Genetic Information Nondiscrimination Act (GINA). The GINA regulations were issued in 2010 and took effect in January 2011.

GINA generally prohibits employers from obtaining employees' genetic information, except in limited circumstances. Because of the broad scope of GINA's prohibition, many employers were concerned about its impact on their businesses. The regulations issued in 2010 addressed many of these concerns, and created an exception where employers inadvertently obtain an employee's genetic information. In order to take advantage of this exception, employers are advised to include "safe-harbor" language in medical forms, including FMLA documentation. We've addressed the FMLA-GINA safe-harbor issue and provided sample language in previous posts. The 2008 FMLA forms issued do not contain this safe-harbor language, so employers should consider adding it as a temporary solution until new forms are approved.