Employment Law Summer Recap 2014: Part 2 of 11 - What do the Ice Bucket Challenge and FMLA-Related Lawsuits Have in Common?
Written by Michael Arnold
$113.6 million and counting – that’s the total amount donated to the ALS Association since July 29 as a result of the Ice Bucket Challenge. Just to put that fundraising number into perspective, the Association raised around $3 million in the same period last year – a staggering 3,500%+ increase.
For those of you (literally) living under a rock, the Ice Bucket Challenge challenges you to dump a bucket of ice water on your head and/or donate money towards finding a cure for ALS (better known as Lou Gehrig’s disease), and it went viral after the friends and family of Boston College former baseball captain Pete Frates embraced the challenge in connection with his battle with ALS.
This fundraising surge reminded me of another statistically significant increase that was reported this summer: the continued rise of FMLA-related lawsuits. In fact, the number of lawsuits has tripled between 2012 and 2013, according to the Department of Labor, with no signs of slowing down. I was not particularly surprised by this news. I think several factors may be at play here:
- Employees are using or attempting to use a greater amount of their FMLA leave and are doing so more frequently. Why? Because the economy is improving, the stigma attached to using this leave seems to be fading, and the updated regulations to this law provide additional leave rights to a greater number of people. More leave requests means a greater risk of a violation.
- Some employers continue to struggle with the FMLA’s tricky and sometimes convoluted compliance obligations, including how and when to complete and distribute paperwork and communicate with the requesting employee, and how to otherwise treat someone on leave. They also struggle with how to navigate between the FMLA, the ADA and short term disability laws and related state and local leave and disability laws. The harder it is to comply means a greater risk of a violation.
- Updated FMLA regulations went into effect about four years ago and we are starting to see claims arise from non-compliance with those newer regulations.
- Plaintiffs have come to rely on the FMLA’s anti-retaliation provision, just as they often look to this provision in the discrimination laws, because they can more easily make out a claim even where the employer did not fail to provide leave or process a leave request correctly.
- Technology, including the prevalence of social media, has made it easier for employees to become aware of and act on their rights under the FMLA. Further, there has been a noticeable effort by the DOL to inform the general public about this law, including through social media, and to enforce it aggressively, including through surprise on-site audits.
In light of this report, start asking yourself several important questions, including: what steps am I taking to make sure I am complying with the FMLA? Have I evaluated my company’s policies and procedures to ensure they comply with the law and sufficiently apprise employees of their rights? Are employee leave requests processed and administered in a standardized and proper manner? Are my managers and HR personnel properly trained on how to process and administer leave requests, including with respect to requests for intermittent and reduced schedule leave?
Asking and then answering these questions will better allow you to reduce your exposure to an FMLA claim. At the same time, taking the Ice Bucket Challenge, while admirable, likely will not.
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Tomorrow: Part 3 of 11: The Decision 2.0: This Time, LeBron Leaves the Right Way; Will Your Employees? For Part 1, click here.