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The Employer E-Letter:
Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association.
Editor, Kathleen S. Bray, ksb@hanftlaw.com or 218.529.2427.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- ACCRUED SICK LEAVE AS CONCURRENT LEAVE WITH FMLA, OR AN EXTENSION THERETO?
- USE OF POLYGRAPHS IN EMPLOYMENT
- BENEFICIARY DESIGNATION FORMS – A CAUTIONARY TALE
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ACCRUED SICK LEAVE AS CONCURRENT LEAVE WITH FMLA, OR AN EXTENSION THERETO?
In a recent 8th Circuit Court of Appeals decision, the Court held that an employer did not improperly terminate an employee at the end of the 12-week FMLA (Family Medical Leave Act) period, despite additional sick leave available to the employee. In Slentz v. City of Republic, Missouri, a 5/12/06 Eighth Circuit decision, a police officer was off work for a personal shoulder injury. The City provided him notice that his FMLA leave would run concurrently with his paid sick leave, and that a fitness-for-duty slip would be required before he returned. As the end of his 12-week FMLA leave entitlement approached, the City again reminded him of the need for a fitness-for-duty slip, or expectation that his resignation would be tendered. Mr. Slentz's doctor felt he needed several more weeks of time off to recover before he was returned to work, and therefore, Mr. Slentz tendered his resignation. Slentz subsequently sued the City, asserting they had wrongfully interfered with his FMLA rights.
At the time Mr. Slentz's FMLA time expired, he still had over 200 hours of accrued sick leave banked. He claims the City improperly limited his FMLA leave, since he had this additional banked sick leave available to him. However, the Court held that the FMLA is a maximum leave statute, providing employee's a maximum of 12 weeks of unpaid leave for serious health conditions, as well as various family situations, and no job security provisions after that time has expired. The FMLA also allows an employer to run accrued paid leave concurrently with the unpaid FMLA leave (ed. note: but keep in mind that in states such as Wisconsin, the employee has the option of choosing not to run such leave concurrently). The employer must advise the employee in advance that these leaves will run concurrently, and in Mr. Slentz's case, the employer provided proper notice of the concurrent leave.
Employers should be cautioned in reading the Slentz opinion too broadly – Mr. Slentz did not file a claim that asserted violation of his collection bargaining agreement, or other wrongful discharge grounds, asserting only a claim limited to violation of the FMLA. Judge Heaney wrote a lengthy dissent asserting his view that the City's actions in the Slentz case deprived Mr. Slentz of a contracted-for benefit, and to terminate him prior to allowing him to use his accrued sick leave was using the FMLA to limit Mr. Slentz's additional employment benefits, which the FMLA expressly was not intended to do. However, Mr. Slentz did not assert a claim that broadly, and it is difficult to say what the majority of the Court would have done if he had broadened the scope of his claim against his employer beyond the FMLA.
PRACTICE TIP: In cases where the employer's personnel and benefit policies provide paid or unpaid leave more generous than the 12-week unpaid leave under the FMLA, tread carefully and consult with your company's attorney before terminating the employee simply because the FMLA leave has been exhausted. Whether the additional accrued benefits or disability leave provide additional job security rights may depend on the wording of the related plan, policy or contract. Similarly, employers may want to examine their leave and benefits policies to determine whether they are providing additional job security rights beyond the 12-weeks granted by the FMLA, on either a discretionary or non-discretionary basis, to confirm they are providing the benefit they intend to provide, and to instruct their human resources personnel, accordingly.
Questions regarding FMLA? Contact Kathy Bray at 218.529.2427 or ksb@hanftlaw.com.
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USE OF POLYGRAPHS IN EMPLOYMENT
The Employee Polygraph Protection Act (EPPA) is applicable to most private employers, and prohibits employers from using polygraph tests as a pre-employment screening tool, or in connection with discipline, termination or other employment-related decisions. The U.S. Department of Labor has an information sheet concerning the EPPA available at www.dol.gov/compliance/guide/eppa.htm#who.
Under the federal act, polygraph tests may be used by employers, subject to strict standards outlined by the EPPA, in certain hiring situations involving security service firms and certain pharmaceutical-related positions. Also, polygraph testing may be available for certain employees who are "reasonably suspected" of activity that resulted in economic loss or injury to the employer from theft or embezzlement.
If a state or contract provides more restrictive requirements concerning the use of polygraphs, the more restrictive provisions apply. For example, pursuant to Minn. Stat. § 181.75, Minnesota employers may not request or require a polygraph test to test honesty of employees or job applicants. If an employee requests a polygraph test, the employer is required to advise the employee that taking the test is voluntary. Wisconsin similarly restricts use of polygraph tests, requiring an employer to advise of the voluntary nature of any such testing, and also prohibiting hiring decisions based solely on polygraph results, without taking into account other relevant information. Wisconsin also outlines other restrictions and standards applicable to any polygraph testing performed.
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BENEFICIARY DESIGNATION FORMS – A CAUTIONARY TALE
A plan participant, who had married twice, divorced once, and had a child with a third woman failed to change his will or his beneficiary designation form after his divorce. The will left everything to "my wife."
The beneficiary designation form was incomplete. He failed to complete a number of provisions and the provisions completed were vague. On the line for the beneficiary's name he wrote "as indicated in my will." In a box labeled relationship code, he chose "ES" which stood for "estate."
The probate court ruled that the will was invalidated by the divorce, that the participant died intestate and that the child, born after the participant's death, was entitled to half the participant's property. The participant's ex-wife, widow and the participant's child all filed claims for benefits under the plan. The plan administrator filed an action with the district court to determine the beneficiaries. The district court ruled that the estate was the proper beneficiary. The ex-wife and widow appealed.
The appellate court disagreed with the district court. The court found that the designation ES was ambiguous and was merely a classification of potential beneficiaries describing the named beneficiaries to the participant. The court further found that "as indicated in the will" was ambiguous since no will was attached to the designation form nor did he refer to the date of the will to which he was referring. Because of the ambiguity in the designation, the court held that the default provisions of the plan would control which identify the beneficiary where there is no designation.
Yet another reminder to review beneficiary designation forms to determine if they are current and can be administered pursuant to the terms of the plan documents.
Questions concerning employee benefit issues? Contact Attorney Faye Witt at fmw@hanftlaw.com or 218.529.2428.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
To subscribe or unsubscribe to Employment Express, e-mail your request to Kathleen S. Bray, ksb@hanftlaw.com or call 218-722-4766.
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Copyright 2006 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218-722-4766; fax 218-529-2401.
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