The Employer's Legal Resource: The Tradition Trap and FMLA Enforcement: Would Your Policies and Practices Survive Scrutiny?


Hard to believe the FMLA turned 20 this year. With time comes tradition. Some good. Some bad. Tradition can be a costly trap.

I recall one of my first FMLA audits. When it came to calculating leave usage, the employer's policy (circa 1993) said one thing, but the audit (about 1999) showed HR handled it differently. The problem? Tradition. When I asked HR why it calculated leave differently than its policy, I received the classic answer: "That's how we've always done it, so we assumed it was right." The Tradition Trap! No telling how much that big mistake cost the employer in excess leave usage over the years.

It's important to periodically challenge your traditions to avoid traps. That's what T.G.I. Fridays and a huge healthcare system in New Mexico recently learned-the hard way. Both flunked recent DOL Wage and Hour Division (WHD) FMLA enforcement investigations. Both yield lessons cautious employers should heed.

On August 7, the WHD announced a settlement with T.G.I. Fridays. T.G.I. Fridays administers FMLA for employees at 272 company-owned locations. T.G.I. Fridays had failed to reinstate an employee to the same or equivalent position with the same or equivalent pay and benefits-a very basic FMLA right. Making matters worse, T.G.I. Fridays failed to return the employee to work promptly. As a result, the employee lost three weeks of pay due to the delay. Significantly, the investigation also exposed other significant, yet basic, FMLA violations. T.G.I. Fridays had not updated its policy to include military servicemember leave provisions. The flawed policy also omitted key information regarding intermittent and reduced-schedule leave and misstated the 12-month employment requirement for FMLA eligibility as being 12 "continuous" months. These flaws easily could have been caught and corrected with a periodic self-audit to ensure conformity with latest legal developments.

Just a day earlier, WHD announced a settlement with one of New Mexico's largest health care providers, which administers FMLA for more than 9,600 employees. The settlement requires the provider to reverse the wrongful denial of leave benefits to numerous employees, supply FMLA training to managers, revise its policy regarding call-in procedures when employees need FMLA leave, to correct its procedures to ensure proper advance notice of fitness-for-duty medical certification requests for employees to return to work, and eliminate its practice of automatically renewing medical certifications annually without a leave request from employees.

When did you last audit your FMLA policy provisions to ensure they conformed carefully to the latest FMLA legal developments? When did you last audit your FMLA administration procedures and practices to confirm they harmonize with your policy and the law? How often do you train your leaders in basic FMLA compliance requirements? Don't wait until it's too late and you've found yourself a victim of the Tradition Trap.

One practical step you can take now is register to attend the 2013 FMLA Master Class scheduled for October 17 in Tulsa and October 21 in Oklahoma City. 

By Christopher S. Thrutchley,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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