New Jersey Employment Law Blog

President Bush has signed an amendment of the Family & Medical Leave Act that will assist our military personnel and their families.  Here's an early report from Business Insurance.

The bill "requires employers to offer up to 12 weeks of unpaid, job-protected leave to employees when a spouse, child or parent is on active duty or is called up for active duty. Leave could be for any “exigency” as defined by regulations to be drafted by the Labor Department."

The bill also allows spouses, parents, and children up to 26 weeks of leave to care for a service member who has been injured as a result of his or her service.

We will follow this bill and post the relevant information as the regulations get drafted.

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The US Court of Appeals for the Third Circuit has just issued an important ruling on how much notice an employee must give his employer to be entitled to federal Family Leave. The case, Sarnowski v. Air Brooke Limousine, was decided on December 12, 2007.

The facts are worth noting.  The picture they paint is of a straightforward business situation that developed into a potentially costly violation of federal (and also state) law.

Sarnowski was hired in July, 2001.  His initial performance evaluations were good, and a year later he received a salary increase.  However, Sarnowski had a history of heart disease, and in October, 2002, he had quintuple bypass surgery for arterial blockages.  He missed about a month and a half of work. 

On April 7, 2003 Sarnowski's doctors discovered more arterial blockages.  They required him to wear a heart monitor and told him that he might require more surgery.  Ultimately, he did.  In the meantime, however, Sarnowski says that "he then advised his immediate supervisor that his doctors had found four more blockages, that he was going to have to undergo medical
monitoring, and that he might need to take an additional six weeks off for further heart surgery."

Air Brooke fired Sarnowski just eight days later, after the supervisor had learned of the heart monitor but before the need for more surgery had been definitely established.  At the time, Sarnowski had not filed a formal written request for Family & Medical Leave under Air Brooke's policy requiring same. 

The trial court threw out Sarnowski's FMLA claim for failure to comply with the policy.  The court of appeals, however, reversed and sent the case back for trial.

The court considered the question whether the informal notice that Sarnowski gave his supervisor was sufficient to satisfy the FMLA's requirement that the employer be given reasonable notice.  To state it succinctly, the court found that good notice had been given.  The court noted that "the employee need not use any magic words. The critical question is how the information conveyed to the employer is reasonably interpreted." 

We can draw two lessons from the Sarnowksi  decision.

First, the employee's obligation is to provide the employer with enough notice to establish that he may need FMLA leave.  If the information provided is insufficiently specific, informal notice may not be good enough to protect his rights.

Second, from the employer's perspective, the court will not allow a business's internal policy that purports to require detailed notice of an FMLA leave request to override the reasonable notice requirement of the statute and related regulations.  The employee's request will be interpreted liberally for reasonable compliance with the statute, rather than for whether it strictly complies  with the rigors of a corporation's policy.

HR departments and managers need to know about this case so that informal employee requests for leave can be processed appropriately, and liability can be avoided.  

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Under the Family & Medical Leave Act, employees qualify for leave benefits once they have been employed by a company for one year.  The U.S. Court of Appeals for the First Circuit (which covers New York and New England) has ruled that a man who was employed only for seven months qualified for FMLA leave.  The opinion can be found here.  Is this another example of judges "legislating from the bench"?  No, it is an example of a court doing its job, interpreting an ambiguous statute in the light of Department of Labor regulations, and coming to a counter-intuitive conclusion.

In short, the employee, Kenneth Rucker, worked for Lee Holding Co. for five years.  He left to work elsewhere for five years, and then returned to employment with Lee.  After about seven months Rucker ruptured a disc in his back.  He took leave, missed 13 days of work, and was fired.  Rucker sued under the FMLA.

The trial court dismissed his complaint, finding that he was not eligible for FMLA leave since the length of his recent employment did not meet the 12 month threshhold.  Rucker appealed and the Court of Appeals reinstated his case.

The court found that the language of the FMLA was unclear about whether time served in previous employment can be tacked onto current employment to create an entitlement to leave when the current employment is less than 12 months.  So the court looked to the DOL regulations and found them to be clearer than the statute, but still ambiguous.  So the court looked to the DOL's position in a friend of the court brief, and gave it "controlling weight" to find that Rucker did in fact qualify for leave.

Right now this decision is only binding within the First Circuit.  However, due to the court's reliance upon the position taken by the DOL, there is a good chance that it will be followed elsewhere in the country.  Meanwhile, the FMLA continues to be one of the truly complex areas of employment law.

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The Family & Medical Leave Act is heating up as one of the most active areas of employment law.  The common issues: (1) what's a "serious medical condition" that qualifies an employee for leave, and (2) when is unscheduled intermittent leave appropriate?

Here are the views of dueling management and plaintiff's attorneys, as reported in Law.com.

While the lawyers duel, the US Department of Labor considers changes to its regulations.

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The U.S. Court of Appeals, which is the primary federal appellate court for New Jersey, Pennsylvania and Delaware, has just decided an issue of national first impression. In Sommer v. The Vanguard Group the court confronted the interesting question whether an employee who took a leave of absence under the Family & Medical Leave Act [FMLA] was entitled to his full annual bonus, or whether his employer could prorate it because he did not work a full year. If the former, Mr. Sommer would have been entitled to the considerable remedies accorded by the FMLA. If the latter, Mr. Sommer would not receive a part of his annual bonus.

When the court ruled, Mr. Sommer was a little poorer. The court found that Vanguard did not interfere with Mr. Sommer's FMLA rights. The court distinguished, however, between bonuses that are based upon production, and bonuses that are based upon "the absence of an occurrence." Production bonuses are based, in one way or another, on performance. "Absence of occurrence" bonuses, on the other hand, reward things that do not happen. Common examples are safety achievements and perfect attendance.

Vanguard's bonus plan fully rewarded employees ("crew members" in Vanguard parlance) who worked a minimum of 1,950 hours per year. Sommer had taken about eight weeks of FMLA leave and did not reach the hourly requirement. Under Vanguard policy, his full bonus was prorated downward to account for the shortfall. The court found that this reduction did not constitute interference with Sommer's FMLA rights.

Two initial thoughts come to mind. First, it is important to remember that "absence of occurrence" bonus rights are protected by FMLA. Second, good drafting of the employer's bonus plan may be critical. To reach the conclusion that Vanguard's plan was production based, the court analyzed the "jargon-laden" language of the plan itself. The question was not free from doubt. The best the court could do was to conclude that the Vanguard plan "is more akin to a bonus program that rewards employee production," which is hardly a ringing endorsement for the clarity of the language.

The lesson? For employers, review your bonus policy to be sure that it clearly and understandably explains employee rights. For employees, as always, read what your employer provides, know your rights, and if you don't understand something, ask.

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