"This & That" Tuesday: FMLA and Holiday Pay, Avoidable Consequences Defense 

 

June 2, 2015

 

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 or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Upcoming Events

June 2, 2015

Understanding and Building a Disciplinary Process

Compliance Key

Webinar

Information can be found on my website.

 

June 4, 2015

East SGV CPA Group

2015 Labor Law Update

Information can be found on my website.

 

June 9, 2015

South Pasadena Rotary Club

The New Paid Sick Leave Act

Information can be found on my website.

 

June 23, 2015

Irwindale Chamber

The New Paid Sick Leave Act

Information can be found on my website.

 

July 15, 2015

West Inland Empire Employer Advisory Council

Coaching to Improve Performance

Information can be found on my website.

 

Am I Required to Pay My Employee for Holidays Occurring During FMLA Leave?

According to the FMLA regulations, an employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).

 

Simply put, you first look to treat the leave in the same manner you treat other forms of non-FMLA leave.  If FMLA is being taken in conjunction with paid leave, look to the manner in which you treat employees on paid leave. Employers just have to be sure they are treating employee consistently with similar forms of non-FMLA leave under your policies.

 

The Department of Labor in a 1993 FMLA opinion letter said since the employer did not provide holiday pay to any employee on personal leave or educational leave, which were unpaid forms of leave and because FMLA by its very nature is unpaid, the DOL opined that the employer was not required to pay holiday pay in this instance because it did not provide holiday pay to those employees on unpaid leave.  However, if the employee was entitled to obtain holiday pay while on paid leave, “the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave.”

 

CA Court of Appeal Applies Avoidable Consequences Defense to Discrimination Claim

This case illustrates the benefit of a good internal complaint procedure.  Employers may rely on effective "grievance" or "open door" policies to reduce potential liability, particularly when employees rush to court without first relying on them.
 

Rosenfeld, a teacher, sued her employer, a school, for age discrimination. She claimed she was forced out by having her hours cut.  However, the school showed there was a decline in enrollment, and that it would have offered her the same hours in the year following her resignation.
 

At trial, the school argued that Rosenfeld's failure to use the school's internal complaint procedure should work to cut off her damages, based on an "avoidable consequences" theory.   That is a state law defense that says your recovery may be reduced by your failure to reasonably avoid harm.  The California Supreme Court had previously applied this defense to a sexual harassment case.

 

The Court of Appeal explained the defense:

State Department of Health Services held “that in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. In this particular context, the defense has three elements:

(1) the employer took reasonable steps to prevent and correct workplace sexual harassment;

(2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and

(3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.

 

This defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.”

 

Here, the Court of Appeal held that the trial court properly admitted the school's defense in the context of a discrimination claim, rather than a harassment claim.

 

The trial court properly allowed the school to present evidence that Rosenfeld failed to pursue the internal grievance procedure which could have prevented at least some of Rosenfeld’s damages.

 

As indicated, the evidence showed that shortly after Rosenfeld submitted her letter of resignation, five more teaching hours became available, so that Rosenfeld could have taught 15 hours per week, instead of 10 hours. Therefore, had Rosenfeld pursued the internal grievance procedure, she would have taught the same number of hours during the 2007-2008 school year that she taught the year before.

 

Factoids

• The total cost for paid time off as a % of payroll including direct and indirect costs is between 20.9% and 22.1%.
• 83% of employers track employee absences
• The total cost of overtime due to absences is about 5.7% of payroll
• Supervisors spend about 4.2 hours per week dealing with absences.
• Top performers in 2014 received an average of 4.5% increases while “average” employees received 2.6%

 

Quote of the Blog

“Luck is the dividend of sweat. The more you sweat, the luckier you get.”

~Ray Kroc~