November 2009 Newsletter

FMLA Amendment Re: Military Leave.

President Obama recently signed into law the National Defense Authorization Act for 2010, which amends the Family & Medical Leave Act with regard to military leave.  Specifically, qualifying exigency leave is now available to a regular or reserve member of the Armed Forces (it formerly was available only to the latter) who is being deployed to a foreign country (the requirement that the call up be in support of a “contingency operation” has been deleted).  In addition to providing for “caregiver leave” to those caring for injured members of the Armed Forces, the amended FMLA also now extends to those needing such leave to care for “veterans” (i.e., those who formerly were on covered active duty within a 5 year period preceding treatment) who have the need for leave related to medical treatment, recuperation, or therapy for a serious injury or illness.  The law also has been expanded so that “serious injury or illness” now encompasses medical conditions that existed prior to the covered active duty for a regular or reserve member of the Armed Forces if such condition was aggravated by service in the line of duty.  Veterans are covered by the same circumstances, regardless of whether the condition manifested itself before or after the former servicemember became a veteran.  Obviously, any leave situation that involves an active or former member of the Armed Forces or their covered caregiver should be scrutinized closely and you may want to seek the advice of legal counsel.

12-Hour Shift at Lower Base Pay Did Not Violate FLSA. 

A federal appeals court recently held that the maintenance of two different shifts (an 8-hour shift and a 12-hour shift) with different base rates for nurses at a hospital (the 12-hour shift paid slightly less per hour) did not violate the Fair Labor Standards Act.  The Hospital had an 8/80 plan in effect when it learned that some of the nurses would prefer a 12-hour shift because it gave them greater flexibility in scheduling.  The 12-hour shift plan (which paid double overtime for work beyond the 12 hours) was optional when first proposed and later was ratified by the employees as part of a collective bargaining agreement.  However, one of the nurses decided to challenge the 12-hour shift because it allegedly resulted in less overtime exposure for the employer and allowed the Hospital to pay two different rates to nurses performing the same work (those on the 8-hour shift earned a slightly higher base rate).  The Court rejected the challenge, finding no intent to evade the minimum wage or overtime requirements of the Act and holding that an employer can pay employees two different rates when they work different shifts where the evidence does not show that the rates are set so artificially low that the apparent intent by the employer was to avoid paying overtime (the double overtime after 12 hours was a significant deterrent, held the Court, to avoid the evil of underpaying and overworking nurses) .  Here, the employer merely put into place what the nurses were requesting.  Parth v. Pomona Valley Hosp. Med. Ctr., 2009 WL 3381116, 15 WH Cases 2d 712 (9th Cir. 2009).

Employee Fired 3 Minutes After Returning From FMLA Leave Entitled to Trial. 

This was the holding of a federal judge in Florida in a recent case involving claims of age discrimination and alleged violations of the FMLA.  The Plaintiff, who was 56 years old when she was terminated, had worked for the company for 7 years and had good  performance evaluations and a good work record.  While she was on FMLA leave, the company decided to cut costs statewide, but only cut one position in Plaintiff’s office (it did retain a 57-year old administrative employee who had more seniority than Plaintiff).  Even before the termination, the company decided to create a new administrative position but did not tell Plaintiff about it or offer it to her.  Plaintiff returned from FMLA leave and clocked in at 8:00 a.m. and she was terminated three minutes later.  However, she discovered the job (which was posted on the company’s website) and applied for it, but the new job was given to a 34-year old.  On motions for summary judgment filed by both sides, the Court held that there were disputed issues of fact on both the age and FMLA claims that required resolution by a jury.  While acknowledging that the company was under no obligation to reinstate Plaintiff for any specific duration after her leave expired, the Court opined that returning an employee to her old job only long enough to fire her was not a meaningful reinstatement under FMLA.  Employers who want to include just- returned employees in layoffs or reductions in force must be sensitive to the types of issues identified by the Court in this case.  Burke v. Laboratory Corp of America, 2009 WL 3242014, 107 FEP Cases 1072, 15 WH Cases 2d 747 (M.D. Fla. 2009).