Client Alert
August 25, 2010
Employment Law Update - Summer 2010
Three Recent Developments

 
By Marc Furman, Esq.

New Federal Law Requires Break Time for Nursing Mothers
Without much fanfare or media attention, President Obama recently signed a law requiring employers to provide “reasonable break times” for employees to express breast milk. This law applies to all employers – except that employers with under 50 employees may qualify for an exemption if they can establish an “undue hardship.” Under the law, during the one year period after childbirth employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers, for nursing mothers to take breaks to express breast milk as often as may be necessary. The break time does not have to be counted as compensable work time.

Is Your Arbitration Agreement Valid?
Many employers require that their employees sign arbitration agreements. Why? Because arbitration is faster and cheaper than the alternative (protracted litigation in federal or state court). Also, many employers don’t like the idea of facing a jury, and would rather have their employment-related disputes resolved by an arbitrator.

In 2001, the United States Supreme Court decided a landmark case, Circuit City Stores, Inc. v. Adams, and ruled that arbitration agreements are valid so long as they do not limit the remedies available to employees. Significantly, however, the Supreme Court’s decision was decided under the federal age discrimination law, and did not even consider the National Labor Relations Act (NLRA).

Earlier this month, Ronald Meisburg, the outgoing General Counsel of the National Labor Relations Board, issued a memo which was supposed to “clarify” the legality of arbitration agreements under the NLRA – but which has potentially lit the fuse on an explosive issue. Meisburg’s memo may have a significant impact on both union and non-union employers alike.

In Meisburg’s memo, he indicates that an employee’s rights under the NLRA should be considered to include the right to challenge employment agreements through “concerted activity”, such as through class action claims. The memo indicates that mandatory arbitration clauses must therefore make clear that an employee waives only their individual right to file a lawsuit in court. Under the memo, the entire arbitration agreement will fail if it does not specifically carve out a provision for class action litigation and other concerted activity.

The Labor & Employment Group at Cohen Seglias can provide you with the guidance you will need to develop and review an arbitration agreement, get out ahead of the curve on this development, and revise those agreements so that they will withstand likely future legal challenges.

Family and Medical Leave Act
In a recent survey of 441 human resource professionals, the Family and Medical Leave Act of 1993 (FMLA) was overwhelmingly identified as the single most problematic federal employment law. The FMLA, which covers employers with at least 50 employees, allows eligible employees to take temporary leaves of absence for certain family and medical reasons. Employers have long struggled with administering the FMLA, and expressed frustration about the FMLA’s pro-employee framework and potential for abuse. To help combat these problems, we have prepared a checklist of basic FMLA requirements: 
 
Is your company covered by the FMLA?
In general, the FMLA covers all private employers that employ at least 50 employees within a 75-mile radius, during 20 or more  workweeks of either the current or prior calendar year. If those two requirements are met, your company is covered by the FMLA.

Who is eligible to take FMLA leave?
Employees of a covered employer must have worked at least 1,250 hours during the 12 months immediately preceding the first date of their FMLA leave. Also, the stated reason for the leave must be covered by the FMLA.

What types of leave are covered by the FMLA?
In general, the FMLA allows eligible employees to take up to 12 weeks of leave in a 12-month period for the birth of a child (or placement for adoption or foster care), to care for the employee’s own serious health condition, and to care for an immediate family member’s serious health condition. The FMLA also provides up to 12 weeks of leave for issues relating to care of covered military members, and up to 26 weeks of leave in a 12-month period to care for various personal and family issues arising from certain “military exigencies."

Does your company have a written FMLA policy?
All employers covered by the FMLA are required to have a written FMLA policy. The policy informs employees of their rights and obligations under the FMLA.

Do you have employees in New Jersey?
New Jersey is among a handful of states with family and medical leave laws governing private employers. If your company has at least one (1) employee in New Jersey, that employee may be eligible for certain types of family leave provided by New Jersey’s Family Leave Act (NJFLA) – even if all of your other employees work in Pennsylvania or Delaware. Compared to the FMLA, the NJFLA has fewer requirements to qualify for leave, and provides different types of leave. In rare instances, an employee may be able to “stack” leave under both laws and take up to 24 weeks of leave in a 12-month period.

Is your FMLA policy posted and included in your handbook?
Your FMLA policy must be posted in a “conspicuous” location in your workplace, i.e., the employee lunchroom or other location where mandatory employer posters have been posted. If your company has an employee handbook, the FMLA policy also must be included in the handbook. Also, companies that have employees in New Jersey must have separate policies that encompass both the FMLA and NJFLA.

Does your policy incorporate recent amendments to the FMLA?
In 2008, the FMLA was amended to include leave for issues relating to care of covered military members and leave to handle various personal and family issues arising from qualifying “military exigencies.” These amendments must be included in your policy, and distributed to all new and existing employees.

Who is administering your FMLA policy?
Employers should not rely on supervisors to administer their FMLA policy. Rather, a human resource manager or other management-level employee must be given responsibility for administering and enforcing the FMLA policy. Their duties will include satisfying record-keeping requirements, making decisions about leave eligibility, ensuring that medical and personal information is kept strictly confidential, and communicating with employees about FMLA requests and other issues. Your administrator also should look for tell-tale signs of FMLA abuse or fraud, and seek assistance when questions or disputes arise.

Above all, consistency and proper documentation are the keys to avoiding FMLA pitfalls. 

Marc Furman is a Partner in the firm's Philadelphia office and Chair of the Labor & Employment Group.  For more than 25 years, he has provided counsel and representation to companies in all aspects of labor and employment law.  Representing both union and non-union employers throughout the United States, Mr. Furman advises employers in a broad range of industries with respect to NLRB proceedings, collective bargaining, employment discrimination, wage and hour compliance and day-to-day personnel matters.  He can be reached at (215) 564-1700 or mfurman@cohenseglias.com.

     
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