This is the third in a five-part series that discusses options for employers facing possible fraudulent intermittent leave under the Family and Medical Leave Act (FMLA).  Last time, we considered the use of second and third medical opinions.  In this posting, we’ll look at recertifications of a serious health condition.

Recertification

Another mechanism to address possible FMLA leave abuse is the employer’s right to demand recertification by a Health Care Provider (HCP) of the need for leave.  29 C.F.R. § 825.308.  There are a number of circumstances in which an employer may request subsequent recertification of a medical condition following the original certification.

a)      The company may request recertification every 30 days in connection with an absence, unless the original certification indicates that the minimum duration of the condition is more than 30 days.

b)      If the indicated minimum duration is more than 30 days, the employer must wait to request recertification until one of the following has occurred:

i.      The minimum duration expires (e.g. if the original certification indicates that the condition will last for 3 months, the employer must wait until the three months has passed before requesting recertification)

ii.      One of the conditions in the next paragraph (c) applies, or

iii.      Six months have passed and the employee has incurred an FMLA-related absence.  This right to request recertification every six months in connection with an absence applies even if the original certification indicates that the employee will need intermittent leave for a period in excess of six months (e.g. a lifetime condition).

c)      An employer may request recertification in less than 30 days under the following circumstances:

i.      If the employee requests an extension of leave,

ii.      Whenever the circumstance described by a medical certification have changed significantly (e.g., absences become more frequent or for longer periods of time, the nature of the condition changes or becomes more severe, or there are complications).  For example, in January, Joe provides the company with medical certification indicating that he will be out every three months for a period of three to four days at a time.  Four months later, Joe starts going out for a day or two every few weeks.  Because the circumstances described in Joe’s certification have changed significantly, the company may demand recertification.

iii.      Where the company receives information that casts doubt on the employee’s stated reason for the leave, a new certification may be demanded.  For example, the employer is informed that Joe, who is out on FMLA for his own serious health condition, is working the same type of job for another employer.  Under those circumstances, the employer may request recertification from Joe.

The regulations provide that the employer may provide the HCP with a record of the employee’s suspicious pattern of absences (e.g. all the absences fall on Mondays or Fridays), and ask if the employee’s serious health condition and leave for need is consistent with this pattern of absences.

Employees must fulfill all requests for recertification by the date specified by the company (at least 15 calendar days after requesting certification), unless it is not practicable to do so despite the employee’s good faith efforts.  Such good faith efforts would be demonstrated by the employee checking with the employer to see if the certification has been transmitted by the HCP, and following up with the HCP if it has not.

Next time, we’ll take a look at fitness for duty certifications.

The NLRB’s General Counsel’s office has aggressively taken on arbitration in the past year.   But, in a little-noticed case, the full Board had the opportunity to adopt the GC’s position on post-arbitration deferral and declined to do so.

Some background — about a year ago, the GC’s office announced a change in how it viewed post-arbitration deferral cases.   Under the old standards, the Board would defer to an arbitration award and consider that it resolved both contractual and unfair labor practice issues, so long as the arbitrator was “presented with the facts relevant to resolving the unfair labor practice charge” and the contractual and statutory issues were “factually parallel.”  The Board would  disturb an arbitrator’s award only if it was “palably wrong” — that is, if the arbitrator’s decision is not suspectible to an interpretation consistent with the Act.

The GC wanted a wholesale overhaul of this approach.  In its place, the GC urged a new process whereby the party urging deferral should have the burden of demonstrating that the:

(1) contract had the statutory right incorporated in it or that the parties presented the statutory issue to the arbitrator;

(2) that the arbitrator correctly enunciated the applicable statutory principle and applied it in deciding the issue.

If the party urging deferral makes that showing, the Board would then defer unless the award if “palably wrong.”

Mark Theodore from Labor Relations Update has an excellent summary on why this proposal was more bad news for employers.   In essence, arbitration is supposed to be an easy, low-cost way for employers and unions to resolve their differences.   This change by the GC would have made arbitration much more complicated.  Perhaps even more importantly, it could have given unions two bites at the apple — an initial arbitration hearing, but, then, a possible second chance at a Board proceeding if the employer could not meet the deferral standards.

Which brings us to IAP World Services, 358 NLRB 10 (2012).   This was a classic 8 (a)(3) case where the employee was disciplined for a few different issues, but ultimately terminated because he interrupted a company safety meeting to complain about backpay under the contract.   The employee filed a 8 (a)(3) charge.  The arbitrator considered whether the employee was terminated for “just cause” under the contract as well as the 8 (a)(3) issue and found in favor of the employer.   The GC’s office got involved in the case and specifically urged that its new post-arbitration deferral standard be adopted.  And the NLRB said ….. No.  Sort of anyway.

In footnote 1 to the case, the Board finds that:

The Acting General Counsel requests that the Board adopt a new framework for considering post-arbitration deferral cases. Because, in our view, the proposed framework would not lead to a different result in this case, we decline to consider that request at this time.

So, while the door remains open, the Board did not take the bait on this case.   It’s possible that maybe the Board is just waiting for a better fact pattern — or it’s possible that given the wars that the NLRB is fighting with Congress lately, this was simply one battle the NLRB does not want to pick anymore.   But it’s an important update in the battle over post-arbitration deferral.

As an aside, one wonders how this type of arbitrator decision squares with the Board’s current line of social media cases where it seems employees can say practically anything they want about the terms and conditions of employment and be protected under the NLRA.   In contrast, it seems, the arbitrator here used good judgment in finding that while the employee’s question was “appropriate,” his demeanor  in interrupting the safety meeting was “disruptive,” “disrespectful,” and “argumentative” and ultimately not protected by the Act.

This five-part series offers guidance to employers on addressing intermittent Family and Medical Leave Act (FMLA) leave abuse.  There are options available to employers through the FMLA regulations, but also some non-regulatory options.  In the first posting, we looked at verification of medical certifications and insufficient certifications.  Here, we’ll take a look at second and third medical opinions.

Certification – Second and Third Opinions

An individual who appears to be “gaming” the system may be that unique case in which invoking the right to obtain a second and third opinion under the FMLA makes sense.  29 C.F.R. § 825.307(b) and (c).  The additional opinions, obtained at the employer’s expense, come into play when an employer has reason to doubt the validity of the certification.  An employee is entitled to FMLA leave provisionally until the issue is resolved.

The employer may designate the HCP to provide the second opinion, but it may not be an HCP with whom the employer regularly does business, unless the employer is located in an area where access to health care is extremely limited.

If the second opinion differs from the first, the employer may require the employee to obtain a third opinion, from a mutually agreed upon HCP.  Both the employee and employer must act in good faith in selecting the third HCP.  The third opinion will be final and binding.

In the next posting, we’ll discuss when an employer can require recertification of the employee’s serious health condition.

A common problem for employers is addressing abuse of unscheduled intermittent FMLA leave.  It is all too easy for an employee to obtain a medical certification from a health care provider (HCP) for a chronic condition that supposedly flares up on an intermittent basis.  This seemingly grants the employee a free pass to call out from work whenever s/he desires, without disciplinary consequences.  Because the leave is on an intermittent basis, the employee never uses up the full 12-week complement of leave within a 12-month period, and the employer faces the possibility of the situation continuing indefinitely.  And, of course, the use of intermittent leave negatively impacts the employer’s ability to appropriately staff the workplace and accomplish the work.

The regulations provide some mechanisms for detecting and deterring abuse of intermittent FMLA leave.  In addition, the courts have recognized other steps that may be taken by employers to ensure the appropriate use of FMLA leave.  I’m going to discuss these options in a five-part series. 

In part 1, we’ll consider the authentication of medical certifications and insufficient certifications.

Authentication of Certifications

Sometimes, an employer may have reason to question whether the certification provided by the employee was actually prepared by the HCP.  In those cases, the employer may contact the HCP directly, without notifying the employee, and provide a copy of the certification in order to verify that the certification form was completed and/or authorized by the HCP who signed the document.  29 C.F.R. § 825.307(a).  The employer may not ask for any additional medical information, however.

Incomplete Certifications

Employees may present an ambiguous medical certification stating that leave is required for the condition “as needed” or “when the condition flares up,” without any additional information on the probable duration of “flare ups” or frequency.  Such certifications may be considered insufficient.  Pursuant to the regulations, the HCP should provide an estimate of the frequency and duration of the episodes of incapacity and the medical necessity for intermittent leave.  29 C.F.R. § 825.306(a)(7).  If an employer receives such insufficient information on a medical certification, it must advise the employee of the insufficiency and state in writing what additional information is needed.  29 C.F.R. § 825.305(c).  The employee has seven calendar days to provide sufficient information, unless s/he is unable to do so despite good faith efforts, in which case the employer must provide additional time.  The consequences of failing to return the certification or remedy the deficiencies within the time frame should also be explained – that FMLA leave may be denied.

 Next time, we’ll take a look at second and third medical opinions of the serious health condition.

A few weeks ago, I posted about a New York Times op-ed arguing that the “right to join a labor union” should be a protected classification under Title VII.

The issue is starting to pick up steam in the union-friendly blogosphere.  For instance, yesterday over at the Huffington Post, Dean Baker, a well-respected think tank scholar, has a blog post about why this should occur.  The biggest reason for thinking that it won’t happen is that other piece of union friendly legislation that now sits in the Congressional graveyard: The Employee Free Choice Act.   Leaving aside the preemption issue I discussed before, Baker makes some shrewd points about how making the right to organize part of Title VII might actually be an easier sale than passing EFCA:

If it ever was passed into law, Kahlenberg and Marvit’s proposal would likely have substantially more impact on unionization rates than the EFCA, but more importantly the proposal has a greater prospect of gaining the sort of popular support needed for passage. The issues that motivated the EFCA required a knowledge of the specifics of union organizing that few people have. As a result, even people sympathetic to labor often did not support the bill. By contrast, the Kalhlenberg-Marvit proposal is rooted in a rights-based approach that should be more intuitive to the public.

The authors are not naïve in thinking that this reframing will cause a bill to magically sail through Congress and land on the president’s desk. Employers will be every bit as forceful in opposing a bill that seeks to give workers this right to sue as they were in opposing ECFA. However, the big difference is that labor and its supporters are far more likely to be able to gain the popular support to overcome this opposition going the civil rights route.

I’m not sure that Baker is right, but employers may want to watch this issue.

So write our friends over at the Boston Herald.   Major labor union leaders are meeting tomorrow in sunny Florida to review the state of labor and it appears that the Democratic Party might be left back in the chilly North.   For sure, organized labor is poised to endorse President Obama again.  But it looks like labor leaders are planning to cut back on the Democrat donations this year:

 The way in which unions back him [Obama] and other Democrats this year is likely to take a very different form than in past campaigns.

Concluding they need to be more independent of the Democratic Party, many unions are increasingly financing their own efforts instead of writing large checks to candidates and the party.

The shift in tactics is already apparent in this election season: Labor political action committees gave federal Democratic candidates and committees $21 million last year, a drop of 20 percent from the same period in the 2008 election, according to data provided by the nonpartisan Center for Responsive Politics. Several major unions, as well as the AFL-CIO itself, now have their own “super PACs,” independent political organizations that can raise unlimited funds.

This is an interesting development for employers, no matter which political party you support.  Labor’s willingness to donate millions of dollars to Democratic candidates has certainly helped it retain a seat at the table over the years.   But it’s hard to see if it has really gotten unions much else.   If labor unions could not get the Employee Free Choice Act passed with Democrat majorities in the House and Senate as well as a Democrat in the Oval Office, I am sure many labor union leaders wondered what they were doing spending all of that money in the first place.

It might make more sense for unions to actually spend more money on organizing than politics.  The NLRB has handed labor unions major gifts with its changes to NLRB election procedures, as well as the Speciality Healthcare decision which allows unions to organize very small groups of employees.  Might it be that unions are now planning to take advantage of these changes and devote resources in these realms instead of just throwing the money at DC politicos?  Time will tell, but smart employers should be prepared for that possibility — and plan accordingly.

Yesterday, Lafe E. Solomon, Acting General Counsel, issued a summary of operations for Fiscal Year 2011.  The Office of General Counsel is composed of six major components responsible for various casehandling, administrative and personnel functions.  Those components are:  the Division of Operations-Management and Regional Offices, the Division of Advice, the Division of Enforcement Litigation, the Division of Administration, the Office of Equal Employment Opportunity and the Office of Employee Development.

Among the report’s nuggets:

  • 91.7% of all union initial elections were conducted within 56 days of the filing of the petition.
  • A 93% settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases.
  • The Regional Offices won 87% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part.
  • A total of $60,514,922 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines with 1,644 employees offered reinstatement.

If things are so wonderful at the Board, one is left to wonder why the Board seems so intent on changing the way it has operated for the last 60 years.

We have taken the weekend to review and digest the DC District Court ruling from Friday on the NLRB poster.  Here is the official Shawe Rosenthal take (also delivered to you today via an e-lert).   We strongly urge employers to contact us if you have additional questions about the ruling and/or whether you should post a counter-notice.

Court Validates NLRB Posting Requirement, But Strikes Down Automatic ULP Provision

On March 2, 2012, a federal District Court upheld a new NLRB rule that employers must post an official NLRB poster about the right to unionize, effective April 30, 2012. In the same ruling, however, the Court struck down the automatic ULP provision of the rule.

The Court’s Ruling: In National Association of Manufacturers v. NLRB, the Court held that the NLRB had authority to issue a rule requiring employers to post an official Notice of Rights poster. The Court ruled, however, that the NLRB lacked authority to “make a blanket advance determination that a failure to post will always constitute an unfair labor practice.” Instead, the Court acknowledged that the Board “may consider a knowing and willful refusal to comply with the [posting requirement] as evidence of unlawful motive in a case in which motive is the issue.” The Court also struck down a section of the rule that would have suspended the normal six month statute of limitations for an unfair labor practice charge if an employer failed to post the notice. The Court found no support in the National Labor Relations Act for suspending the statute of limitations.

Practical Impact of the Ruling: The Court’s ruling is likely to be appealed, perhaps by both sides. In the meantime, the posting rule will become nominally effective April 30, 2012, but will lack any enforcement mechanism unless an employer commits another, independent violation. Employers who post the NLRB notice may consider posting a “counter-notice” explaining to employees the employer’s position on unions and collective bargaining. We have developed examples of “counter-notices” which can be tailored to an employer’s individual needs.

BREAKING NEWS!

The United States District Court for the District of Columbia just handed down its decision in the case challenging the NLRB poster requirement.   The good news for the NLRB: the Judge found that the NLRB acted lawfully in promulgating the poster.  The bad news for the NLRB — and this is very bad news — the NLRB exceeded its authority in making the failure to post an independent unfair labor practice charge and grounds for tolling the six-month statue of limitation.

We will digest this decision more over the weekend and have a fuller analysis on Monday.

The New York Times runs a very….peculiar op-ed today that actually marries labor and employment law.   The authors of the piece argue that the “right to organize” a labor union should become a “protected class” under Title VII.  Here is the crux of their argument: 

Our proposal would make disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.

The labor and civil rights movements have shared values (advancing human dignity), shared interests (people of color are disproportionately working-class), shared historic enemies (the Jim Crow South was also a bastion of right-to-work laws) and shared tactics (sit-ins, strikes and other forms of nonviolent protest). King, it should be remembered, was gunned down in Memphis in 1968, where he was supporting striking black sanitation workers who marched carrying posters with the message “I Am a Man.” Conceiving of labor organizing as a civil right, moreover, would recast the complexity of labor law reform in clear moral terms. 

Well, the authors deserve some credit for creativity, if nothing else.   The problems with this proposal however would be numerous.  First, there would be a practical concern — how would this exactly be enforced?  There is already a major concern from the employer community that many EEOC charges are frivilous and waste an enoromous amount of employer resources.   One can almost imagine the charges where somebody once talked about organizing a union and that person is otherwise fired for legitimate reasons (i.e. he/she is a bad employee, doesn’t come to work, commits a crime, etc.) — but now claims that he was terminated for his union organizing.   Sure, the employer might win the EEOC charge, but that doesn’t take into account the very real costs involved in defending against those charges, even the ones that have absolutely no merit.

Practical concern number two — how would the EEOC handle what would almost assuredly be a massive influx of charges?  Those of us who litigate EEOC claims are already used to very long backlogs (through no fault of the agency mind you.  They do the best they can with limited resources).  Would it even be fair to add another “protected class” without giving the EEOC more resources to work with here?

Beyond the practical, this change would almost certainly require a change in labor law preemption.   The NLRA has a powerful preemption provision and just about anything having to do with labor unions ends up on the NLRB’s plate.

And beyond that, I think it’s fair to ask the most obvious question: is the “right to organize” really is on par with the other protected classifications in Title VII?   We have many rights found in various laws, but those contained in Title VII are sacrosanct and deal mostly with characteristics that people cannot change about themselves — their national origin, race, sex, etc.  Is the right to join a labor union really on par with these types of characteristics, especially since union membership is largely voluntary?