Spring Bouquet of Updates
There is a children’s rhyme that reminds us of nature’s annual cycles: “April showers bring May flowers.” Thus, in April, we wonder about what things beneath the surface will come out and bloom in May. To help answer that question, this month’s newsletter is about a variety of blooming things you will want to know about.
Googled Your Company Recently?
Google has become so important to Internet users that its brand name became a verb. Those of us who remember how hard it was to find content on the World Wide Web before powerful search engines particularly appreciate the speed and accuracy of Google searches. Even so, the average Internet user has come to rely on the authority and convenience of Google searches. Technological innovation happens so fast that you may not recall Google’s “auto complete” feature is a very recent development. Auto complete allows users to pick from a list of probable searches after entering only a few letters or words. In my experience, this tool works very well. For instance, if I start typing Southern Methodist University into the Google search window, I get a list of relevant related searches by the time I get to “Southern Meth.” “Southern meatloaf” is available at “Southern Me.”
However, things do not always work out so well. Google’s auto complete options for the Ballymascanlon Hotel, a four-star Irish establishment that sits on an estate dating back to the ninth century, includes “ballymascanlon receivership.” “Receivership” is a term often associated with bankruptcy. The hotel took exception and sued Google for defamation on the basis that its search engine wrongfully informed the public that it was in financial distress. Although Ballymascanlon has dropped its suit, its experience is a lesson for us. We should monitor our digital reputation to protect the good will we have earned from the public.
NEWSFLASH: NLRB Efforts to Unionize your Company Slowed by a Federal Judge
The National Labor Relations Board has been trying to pass and enforce a rule requiring employers to post notices informing employees about unions and collective bargaining. Although one Federal judge has found that the notice posting rule will be enforceable when it goes into effect on April 30, that same judge ruled that some of the serious penalties for failure to post were beyond the agency’s authority. Other challenges to the posting rule are still in the works.
Family and Medical Leave Act (FMLA) Concerns
Two federal court decisions came down in January that should serve as reminders to employers that the FMLA and its regulations were written to be employee friendly. Indeed, the FMLA was written to punish creative employers who may try to skirt the underlying purposes of the act. Unfortunately, it often punishes an employer for being unwary rather than for trying to avoid its legal obligations. Many FMLA restrictions are explicit and easy to follow yet seemingly innocent mistakes come back to haunt businesses. For example, the decision about whether an employee is eligible for FMLA leave must be made on the day FMLA leave is to start, not on the day it is requested. A senior living center failed to make that distinction and lost its bid to get out of the resulting lawsuit.
Another employer changed its FMLA policy while an employee was on leave. The employee on leave did not get notice of the change. Despite having already approved the leave start and end dates, the company claimed the employee’s leave was not FMLA protected after it would have ended under the new policy. The company lost at trial and the judgment for $200,000 was upheld by the appellate court. Observing the letter and purpose of FMLA in each of these cases, respectively, would have been cheaper, easier, and less harmful to the organizations’ reputations.
While we’re on the topic of FMLA, please also keep in mind that if your company uses the government promulgated serious health condition certification forms that expire on January 31, 2012, those forms do not have the Genetic Information Non-discrimination Act (GINA) safe harbor language on them. GINA prohibits employers from collecting genetic information under most circumstances, including the certification of a serious health condition for FMLA purposes. To help avoid liability where a third party physician discloses genetic information to your company, your FMLA certification forms should include language like the following paragraph suggested by the Equal Employment Opportunity Commission:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
So, when it comes to FMLA, please be sure your policies, procedures, and documents are up to date. If you make changes, be sure to inform affected employees and be careful about retroactively applying changes.