Delaware Employment Law Blog

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.

Can an individual supervisor be held liable when an employee files suit? Well, like all legal questions, it depends. The Third Circuit Court of Appeals issued an opinion yesterday expanding the instances when the answer to this question is yes in Haybarger v. Lawrence County Adult Probation & Parole, No. 10-3916 (3d Cir. Jan. 31, 2012).

Background
The plaintiff, Debra Haybarger, was the office manager for Lawrence County Adult Probation and Parole, an agency of the Lawrence County of Court of Common Pleas. Haybarger reported to Director William Mancino who, turn, reported to Court Adminstrator Michael Occhibone. Occhibone reported to the President Judge of the Court, Judge Dominick Motto.

Hayberger missed a lot of work due to various illnesses. Her boss, Mancino, was "displeased" by the absences, writing on her performance evaluations that she needed to "improve her overall health and cut down on the days she misses due to illness." He also commented about her health and suggested that she need to "start taking better care of [her]self." Yikes.

Mancino put Haybarger on a six-month probation, which required weekly progress reports and formal monthly meetings. In a disciplinary letter, he wrote that Haybarger's "conduct, work ethic and behavior [were] non-conducive to the Adult Probation Office." He also wrote that she demonstrated a "lack of leadership," and "no clear understanding of the subordinate positions" that she supervised. Gulp.

At the end of the six months, Mancino told his superiors that Haybarger's performance had not improved and recommended that she be terminated. They followed his recommendation.

The Suit
Haybarger sued the agency, the county, and Mancino under the ADA, Rehabilitation Act, Pennsylvania's state discrimination statute, and the FMLA. Initially, the District Court dismissed all of the claims except for the Rehabilitation Act claim against the agency and the FMLA and state-law claims against Mancino.

After limited discovery, the agency moved for summary judgment, alleging it was immune from suit pursuant to the 11th Amendment. The motion was denied and the Third Circuit affirmed.

On remand, the agency again moved for summary judgment, as did Mancino. The agency's motion was denied but the parties subsequently settled, leaving only the FMLA claim against Mancino in his individual capacity.

The District Court held that, while the FMLA permits individual liability against supervisors at public agencies, the plaintiff failed to show that Mancino had "sufficient control over [her] conditions and terms of employment" because he did not have authority to hire and fire and, therefore, was not a supervisor.

The Holding
The Third Circuit determined, as a matter of first impression, that supervisors at public agencies are subject to liability under the FMLA was one of first impression. The court then went on to find that Mancino could be considered a supervisor and, in turn, an "employer" for purposes of the FMLA.

In its first finding, the court rejected the positions of the 6th and 11th Circuits, both of which have found that the FMLA does not provide for individual liability for supervisors and, instead, adopting the reasoning of the 5th Circuit. This conclusion was based on the determination that the language of the FMLA and its implementing regulations are more like the FLSA, which permits individual liability, rather than Title VII, which does not.

The court then turned to the facts that could support a finding that Mancino could be considered to be an "employer" for the purposes of the FMLA. In sum, the court explained, "an individual is subject to FMLA liability when he or she exercises 'supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation' while acting in the employer's interest."

The Impact on Supervisors
There are several lessons to be learned from this case--some more obvious than others. First, do not comment (or care) about the reasons for an employee's absence. If an employee is absent and is permitted to be absent--because of your leave policy, because of the FMLA, or otherwise--then the reason(s) for the absence is irrelevant. Do not care and do not comment about why an employee is taking leave when she is permitted to do so.

Second, learn how to write a better performance evaluation. Ambiguous comments like, "employee demonstrates poor leadership skills" do not help the employee improve because they do not identify the underlying conduct that you want her to change. Give an example of how she fails to be a good leader. If you cannot articulate a specific example of what you consider to be poor performance, it is not poor performance under the law.

Third, to avoid being held individually liable under the law, supervisors are best advised to let HR do what they do best--including administering FMLA leave. Simply turn it over to HR and then get the pros involved when writing performance evaluations and considering disciplinary action for any employee who has been approved for FMLA leave. This stuff isn't easy--get help from the pros.

The Parental Bereavement Act is the latest in a series of proposed amendments to the Family and Medical Leave Act (FMLA). The Act, as drafted, would permit an employee to take unpaid bereavement leave for the death of a child. This is just the latest change to the FMLA proposed in the last two years. Other proposals have included:

1. The Family Fairness Act (2009), which would remove the requirement that an employee perform 1,250 hours of work for an employer prior to becoming eligible for FMLA leave;

2. The FMLA Inclusion Act (2011), which would expand FMLA coverage to allow leave to care for same-sex partners, adult children, siblings, grandparents, and other more attenuated family relationships;

3. The Healthy Families Act (2011), which would require employers to provide 56 hours of paid sick leave per year;

4. The aptly-named Paid Vacation Act (2009), which would require employers to provide one workweek of paid vacation per year; and

5. The pièce de résistance, the Balancing Act of 2009, which incorporates all of the foregoing, plus expanding the FMLA to cover employers with 25 or more employees!

It is generally agreed that none of these bills--with the exception of the Parental Bereavement Act, is likely to have any success in the legislature. Either way, we'll be sure to keep you posted as the effort to makeover the FMLA continues.

The FMLA requires an employee to receive (unpaid) leave for certain family and medical reasons. Employers must provide certain notices to employees, determine employees' eligibility for FMLA leave, and track leave time in accordance with the FMLA's complex regulations. A recent opinion from the Third Circuit, though, makes clear that the employer isn't the only one obligated to follow the FMLA's many rules.

In Prigge v. Sears, the employee applied for FMLA leave, telling his employer that he was suffering from prostrate cancer, which had been in remission. In fact, though, the employee needed the leave for seek treatment for Bipolar Disorder. About 8 months after he was hired, he was hospitalized due to depression, at which time he confessed to his employer the real reason he had been missing work.

Before returning to work, the employee was supposed to provide documentation to support his absences. Although he provided some of the medical certification, he never complied fully with his employer's request for information. He was subsequently terminated and later filed suit.

In defending against the lawsuit, the employer offered two reasons for terminating the plaintiff-employee: (1) the employee's failure to provide the required documentation; and (2) the false reasons offered by the employee as the basis for the leave.

The district court ruled in favor of the employer, finding that, although the employee may have been entitled to the leave that he took had he been honest about the reasons for it, he became ineligible for the protections of the FMLA when by lied about his illness. Without the protections of the FMLA, there was no basis for liability and the case was dismissed.

Here's what this case teaches us--employees must tell the truth to be protected by the FMLA. And by "truth," the court means, the "whole truth," including the reason that leave is needed, as well as the underlying illness.

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Maury Povich has made a good living hosting a TV show which often focuses on determining paternity. The show follows a familiar pattern. A woman comes on and declares that a man, waiting back stage, is the father of her baby. The child is then shown on the screen for the audience in the studio and at home to adore. The putative father is then marched onstage to loud boos.

He, of course, vociferously denies paternity using a series of arguments used by men through the ages like “the kid don’t look like me” or “she slept with lots of other men.” The man and woman then go back and forth for a bit. No physical violence. This isn’t Jerry Springer. The crowd loves it anyway.

Maury then produces a manilla envelope with the result of a DNA test. After the requisite commercial break, Maury dramatically reads the results of the test. The studio audience erupts. If the man is the father, he pledges to live up to his obligations. Sure, buddy. If he is not, the mother runs off the stage to his taunts. The whole sad affair is wrapped up in ten minutes.

Determining parenthood often critical under the FMLA. The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, “[b]ecause of the birth of a son or daughter”, “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and “to care for a son or daughter with a serious health condition.”  See 29 U.S.C. 2612(a)(1)(A)-(C).

Fatherhood, or motherhood, for that matter, is not always clear under the Family and Medical Leave Act (“FMLA”). While in Maury’s world, a child has only one father, under the FMLA there can be many. A parent is defined as “a biological, adoptive, step or foster father or mother or any other individual who stood in loco parentis” to a child.

While Maury uses a DNA test to determine a biological father, it is not necessary for FMLA purposes. Under the FMLA, a birth certificate will suffice. Similarly, court documents will work for adoptions and foster care. But what about “in loco parentis”? Now that’s a tough one. The U.S. Department of Labor recently issued an Administrator’s Interpretation that may make it even tougher.

The FMLA regulations state that “[p]ersons who are ‘in loco parentis’ include those employees with day-to-day responsibilities to care for and financially support a child….” The Interpretation, however, sees this definition as providing only an example of an “in loco parentis” arrangement, not establishing the requirements. Despite the use of word “and” in the regulation, the Interpretation states that an employee need not establish both day-to-day care and financial support. Rather, it sufficient for an employee to provide only day-to-day care. The Interpretation also gives a series of other scenarios which may qualify for in loco parentis status. For example, an employee who will be raising an adopted child with a same sex partner, but who does not have a legal relationship with the child, will still be eligible for FMLA. Good luck confirming these relationships.

The Interpretation concludes by stating the determining whether an employee stands in loco parentis to a child “will depend on the particular facts.” Unfortunately, those particular facts may be hard for an employer to determine or confirm.

The answer to this question is critical. If the answer is “yes,” the employer must comply with the myriad of obligations imposed by the FMLA. The answer is “yes” if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year.[1]  

The determination of whether an organization meets this 50-employee requirement is not an easy one, though, especially for employers with a high turn-over rate and employers who utilize temporary or seasonal help. Here’s a short breakdown of the analysis to help you determine if your organization is a “covered employer” for purposes of the FMLA.

• Start with the correct time period. You should look to the payroll records of the current and preceding calendar year. (For example, if we were to perform the calculation today, we would need to look at the records for 2008 and 2009).
• For this period, determine how many employees the organization had who were employed for a total of 20 or more weeks. The week is based on a calendar workweek. Workweeks need not be consecutive.
• From this number, remove employees who were subject to layoff, whether temporary, indefinite, or long-term.
• Do not remove an employee who was on leave of absence or suspension but who has a reasonable expectation of returning to active employment.
• Remove any employee working at a location outside of 75 miles from the location for which the determination is being made.

Once a private employer satisfies the 50-employee and 20-week threshold, the employer remains covered until it no longer has 50 employees during 20 workweeks in both the current and preceding calendar years.

[1] Joint employers and successors in interest of covered employers, public agencies, and private elementary and secondary schools are also covered.

See other posts on the FMLA's requirements and prohibitions:

New FMLA Regulations Restrict Substitution of Paid Leave for FMLA

So You Thought You Understood the Final FMLA Regs?

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

The substitution of paid leave for unpaid FMLA leave occurs often.  A employee eligible for FMLA leave will substitute accrued vacation, sick, medical, or other similar types of paid leave so that he avoids a loss of pay during the leave.  In most circumstances, employers also benefit because, when substitution occurs, the time counts against both the employee’s FMLA and paid time off entitlements.

Under the prior FMLA regulations, substitution of paid leave could be abused.  For example,  vacation leave was required to be substituted for any FMLA leave.  Common restrictions imposed on the use of vacation such as advanced notice or requiring it to be used in minimum blocks of time could not be imposed to prevent substitution.  This ready availability of paid leave surely was very tempting to some employees that could not otherwise use such time.

The new FMLA regulations, however, give employers the ability to reduce abuse.  Under the new 29 C.F.R. § 207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave.  Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period.

The consequences of the new rule are obvious.  Employees might now be required to take unpaid FMLA leave rather than substitute paid leave.  As a result, the temptation to use the FMLA to obtain paid leave that they otherwise would not be entitled is eliminated.

When the FMLA final regulations were promulgated in January, employers (and their lawyers) around the country got to work.  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

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.

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.

Summary

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.

[Update to  January 30: FMLA Briefings] 

As promised, we've uploaded our slides from the presentation.  And, while we were at it, we also downloaded the DDOL's regulations and added them to the PDF so you have all of the FMLA resources in one place. 

The better-looking version requires Adobe Reader 9, which is a free download that doesn't require administrative rights.  If you're using an older version, switch now, you'll love it. 

If you can't, though,  use Adobe Reader 9, download this copy of the materials, which will display fine in any Reader version. 

Thank you again for attending and we'll look forward to seeing you in April at our annual employment law seminar.

Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month's Delaware Today magazine.  Young Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation's adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur--a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave--the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act ("PDA"), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It's likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

The FMLA is complicated for employers to apply.  One reason for this is that most every "definition" in the statute contains another word that has its own definition.  For example, we know that FMLA leave may be taken to care for the serious medical condition of a family member.  We know that "family member" includes a child of the employee.  But who is a "child" under the statute?  Here's one twist on that question.

Q:  An employee has requested to take intermittent FMLA leave to care for her adult son, who has long-term emotional problems, whenever there is a “situation where she is needed.”

There are three questions that the employer would need to have answered before being able to determine whether the requested leave is FMLA qualified. First, the employer must determine if the adult son is a covered family member, which requires a determination of whether he is “incapable of self-care.” If he requires assistance to engage in the activities of daily living, the second question is whether this inability is a result of a chronic serious medical condition. Third, the employer would need a further description of the “situations” for which the employee would require leave.

Adult Children and the FMLA

Adult children can qualify as a “family member” for purposes of the FMLA only if the individual is incapable of self-care because of a mental or physical disability. “Incapable of self care” means that the individual requires active assistance or supervision to provide daily self-care in at least three “activities of daily living,” such as bathing, dressing, eating, cooking, cleaning, shopping, or taking public transportation.

Emotional Problems as a Serious Medical Condition

The statement that the employee’s son has “emotional problems” is insufficient to qualify him as having a serious medical condition, as is required for FMLA protection. A health-care provider, such as a psychologist, should determine whether the son’s emotional problems constitute a serious medical condition as that term is defined by the FMLA.

“Situations” as Reason for Leave

The FMLA broadly defines the times that an eligible employee can take leave. Simply, the employee must only be taking leave to provide care for or provide psychological comfort to an immediate family member with a serious health condition. If, in the first question, we determined that the adult son qualifies as an “immediate family member” and, in the second question, determined that his “emotional problems” qualify as a serious health condition, the final question is whether the employee is requesting leave to provide care or psychological comfort for her son. If she is taking him to medical appointments or simply caring for him while he is not well, this time is protected by the FMLA. But if she was requesting leave to take him to have his picture taken for the annual holiday card, or to a friend’s house to visit, these would not qualify as protected activities and would not constitute FMLA-eligible leave.

What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?

Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.

Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.

The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an employee’s total hours worked.

New FMLA regulations go into effect on January 16, 2009.  On January 13, 2009, Delaware attorneys William W. Bowser and Scott A. Holt will be speaking to Delaware employers about how to comply with the new regs.  Delaware Society of Human Resources will host the event at Cavalier Country Club, beginning at 5:30 p.m.

For those Delaware employers who are not members of DESHRM, the Employment Law Department will host a breakfast briefing at the end of the month on the new regulations, as well.  More information on the details of that seminar will follow.  Until then, you can get a head start on the topic by checking out these earlier posts:

• Department of Labor Issues Long-Awaited FMLA Regulations

• New FMLA Regulations Define Scope of Active-Duty Leave

• New FMLA Regulations Explain Military-Caregiver Leave

• 10 Most Important Changes to the FMLA Regulations

The new FMLA regulations go into effect on January 16, 2009.  To help Delaware employers prepare for these significant changes, Young Conaway's Employment Law Group will host a free breakfast briefing on the new regulations.  The two-hour seminar will be held at our Wilmington, Delaware offices on January 30, 2009, from 9 - 11 a.m.  Delaware employment law attorneys William W. Bowser, Scott A. Holt, and Margaret (Molly) DiBianca will discuss the following:

• New "military caregiver leave" permitting family members of wounded military personnel to take up to six months of unpaid leave in a 12-month period to care for their relatives during the recovery process
• New "qualifying exigency leave" permitting families of National Guard members and the reserves to use up to 12 weeks of leave to manage the members’ affairs while they are on active duty
• New definitions of a “serious health condition” 
• New regulations on  “chronic serious health condition”
• Prohibitions on direct supervisors contacting the employee’s health care provider about a medical certification
• Expanding the notice requirements for employers and employees
• Explaining how employers may settle FMLA claims
• Stopping employers from charging FMLA time to employees who are on light duty

Due to the expected popularity of this seminar and the limited number of seats, employers are asked to send no more than two representatives.  Registration is open until all seats are filled or until January 23, 2009, whichever is first.  Registration forms can be found on the Young Conaway website.