Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.

 

My next engagement is entitled "Labor Law Update: 2013" It will be held on January 23 and is sponsored by the Irwindale Chamber of Commerce. For more information please go to my website.

 

Labor Law Update 2013: If you are interested in having me give a “Labor Law Update for 2013” presentation to your organization early this year, please contact me so we can schedule the event.

 

Nichols Gas & Oil Settles EEOC Sexual Harassment Lawsuit for $150,000

Nichols Gas & Oil, Inc., a former upstate New York fuel supply company, will pay nine women $150,000 to settle a sexual harassment lawsuit brought by the EEOC. The EEOC's lawsuit charged that the company subjected nine female employees to sexual harassment from January 1999 through July 2003.

 

According to the nine harassment victims, company owner Wayne Nichols groped their breasts and buttocks, made sexually explicit propositions and comments including requests for sexual intercourse, and other lewd remarks. Nichols routinely referred to female employees using sexually degrading terms and made offensive and graphic comments about sex acts and genitalia.

 

Townsend Oil Corporation purchased Nichols Gas & Oil on or about Nov. 30, 2005. EEOC filed an amended complaint naming Townsend as a successor defendant on Oct. 1, 2007.  The EEOC filed suit after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.

 

Although Nichols Gas & Oil is no longer in existence, Nichols and his former company will be bound by a ten-year consent decree which, in addition to the $150,000 monetary relief, enjoins Nichols and any future businesses he may purchase or operate from engaging in further sexual harassment or retaliation. Further, Nichols must put mechanisms in place to protect any future employees.

 

The EEOC attorney added, "The victims in this case have shown great courage and have waited a long time to right the wrongs perpetrated against them by their former employer. We are pleased that they will finally be compensated."

 

Intermittent FMLA Leave

Here are some general rules for intermittent leaves.

 

It is only available for a medical necessity

There must be a medical need for intermittent leave or leave on a reduced leave schedule. Leave may be taken for:

• planned or unanticipated medical treatment for; or
• recovery from the employee’s serious health condition; or
• to care for a parent or child with a serious health condition; or
• to care for a covered servicemember with a serious injury or illness.

 

Intermittent or reduced schedule leave is not available for non-medical reasons unless the employer agrees. For example, leave for bonding with a healthy new child would not be mandated; however, the employer could agree to provide it.

 

It must be the best way to make the accommodation

In addition, the leave and the medical need must be best accommodated through an intermittent or reduced leave schedule. Thus, leave would not be required merely for the convenience of the employee.

 

The employee must cooperate in the scheduling of leave

If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations.

 

The employer cannot keep asking about the leave request once it has been granted

Employees must establish the need for intermittent or reduced schedule leave only once, before the leave begins. Once leave is approved, employees may not be asked to reestablish the need for leave each time leave is needed.

 

The employer must allow it to be taken in the lowest increments

When an employee takes FMLA leave intermittently or on a reduced leave schedule, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave. However, the increment of time may not be greater than 1 hour.

 

The employer can’t charge more than the actual time used

An employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. Meaning, if an employee leaves 30 minutes early for an FMLA-covered event, the employee may not be “docked” a full hour of FMLA leave, even if an hour is the shortest period of time that the employer uses to account for use of other forms of leave. However; an employer may account for FMLA leave in shorter increments than used for other forms of leave. For example, an employer that accounts for other forms of leave in 1-hour increments may account for FMLA leave in a shorter increment if, for example, the employee arrives at work 15 minutes late, and the employer wants the employee to begin work immediately.

 

The employer cannot delay the employees return to work for the employer’s convenience

Once an employee who has been taking intermittent FMLA leave or put on a reduced schedule, is ready to return to work, the employer must return the employee to his or her original job or an equivalent position immediately. The employer can require that the employee give some notice of his intent to return to work, but it can’t require that the employee take more FMLA leave than necessary just so the employer can find a job to put the employee in.

 

The employer may disallow intermittent leave under some circumstances

Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work midway through a shift, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement. For example:

• a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train
• a laboratory employee is unable to enter or leave a sealed "clean room" during a certain period of time

 

Note: This exception is applied narrowly. It is not available just because it is inconvenient for an employee to leave, for example, because the person is a member of a team that operates a piece of complex machinery.

 

Factoids

• The average employee paid $1700 in legal fees in 2011, up from $1297 in 2007
• 51% of Gen Xers reported starting their retirement savings between age 25 and 34, while only 30% of baby boomers and 21% of retirees did so.
• The median fraud loss was $229,000 when those committing the fraud have more than 10 years of tenure. The smallest organizations suffered the largest median losses. In 81% of the cases the perpetrator displayed one of more red flags (living beyond their means, financial difficulties, etc.)
• 57% of employers said they would be less likely to promote someone who swears in the office.

Quote

“Live so your friends can defend you but never have to”

Andrew H. Glasgow