Hoeppner Wagner & Evans LLP Valparaiso Estate Planning Attorneys | Harassment Disputes 2021-06-09T18:17:22Z https://www.hwelaw.com/feed/atom/ WordPress On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[What Employers Should Know About COVID-19 and The Americans With Disabilities Act]]> https://www.hwelaw.com/?p=46581 2020-06-08T12:42:59Z 2020-06-08T11:05:54Z The workplace is changing in light of this world pandemic, but the Equal Employment Opportunity Commission (“EEOC”) has made it clear that all anti-discrimination laws, including the Americans with Disabilities Act (“ADA”), still apply to covered employers. The ADA prohibits discrimination against individuals with disabilities in several areas including employment. While antidiscrimination laws are still in effect, during a pandemic, employers are not prevented from following guidance from public health authorities including the Centers for Disease Control and Prevention (“CDC”). In 2009, during the H1NI pandemic, the EEOC issued significant guidance related to what employers may do to protect employees and how to navigate the ADA during a pandemic. It recently updated this guidance in response to COVID-19. To protect its workforce, employers are permitted to ask employees if they are experiencing symptoms. Employers may rely on symptoms provided by the CDC and public health authorities. For instance, fever, chills, cough, shortness of breath, and sore throat are published symptoms of COVID-19. During a pandemic, employers are also authorized to take an employee’s body temperature. But employers must remember that the ADA requires that all medical information about an employee be kept separate from the employee’s personnel file. Accordingly, any information an employer obtains related to COVID-19 must be kept in the employee’s separate medical file. If an employer maintains a log of daily body temperature results it must maintain the confidentiality of this information. The CDC has stated that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC has made clear that the ADA does not prevent employers from following this advice. During a pandemic if an employee requests an accommodation related to the pandemic for a medical condition, either at home or in the workplace, an employer may ask questions or request medical documentation to determine if the employee has a disability as defined by the ADA. Employers are cautioned not to ask questions or request medical documentation about obvious or already known disabilities. It is important to note that the ADA still applies to critical and essential workers so employers receiving requests for reasonable accommodation under the ADA from employees designated as critical or essential workers by the CDC must accept and process the requests as they would for any other employee. The granting of the request will depend on whether the worker is an individual with a disability and whether there is a reasonable accommodation that can be provided absent undue hardship. Employers should not ask employees without symptoms if they have an underlying condition that would make them more vulnerable to the virus. Without symptoms, this is a disability inquiry that is prohibited by the ADA. Employers should not assume every person with a disability is at an increased risk as not every disability will increase a person’s risk of complications related to COVID-19. Employers should continue to monitor changing guidance from both the EEOC, the CDC, and other public health authorities as the COVID-19 pandemic evolves. As no set of guidelines can encompass this rapidly changing and unprecedented situation employers should seek legal advice for fact specific questions.

This article is authored by attorney Kimberly P. Peil at [nap_names id="FIRM-NAME-1"]. Kim practices Employment and Litigation law.

[nap_names id="FIRM-NAME-1"] is a law firm with offices in Merrillville and Valparaiso. Visit our website www.hwelaw.com for more information, or give us a call at [nap_phone id="LOCAL-REGULAR-NUMBER-3"] or [nap_phone id="LOCAL-REGULAR-NUMBER-4"] or follow us on LinkedIn®, Facebook® or Twitter®. We look forward to addressing various legal issues of interest to you in this feature and encourage you to submit topics of interest.

DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[Understanding the Impact of Insurance and Indemnity Contract Provisions in Business Contracts]]> https://www.hwelaw.com/?p=46084 2020-05-02T12:58:02Z 2018-03-01T06:00:00Z jjaskowiak.jpg

As a business owner, are you using insurance and indemnity provisions to your benefit, or are you unknowingly exposed to providing insurance and indemnity to the other side in your business contracts? This is an often overlooked, but significant issue for businesses.

For many businesses, management of contracts is an onerous and time consuming effort. Negotiating terms that place your business in the best possible position requires even greater effort, but in return can provide important protections. Businesses often don't recognize that they have the right to negotiate favorable terms. Many vendors will provide a customer with a standard form of agreement for execution. If the vendor has substantial bargaining power and leverage, then the vendor's contract may be the only option. Frequently, however, the bargaining power is not so one-sided, allowing a business to negotiate more favorable terms.

Two important areas for negotiation are (1) insurance; and (2) indemnification. Indiana courts have long recognized the ability of contracting parties to agree who will provide insurance coverage for work performed or material supplied under a contract. Sometimes this takes the form of a "purchase order" or written agreement. Often times, leases include an obligation to provide insurance coverage. The basic contract language is simple - the vendor agrees to provide insurance for the work and make your business an additional insured on the vendor's insurance policy. This type of provision is routinely included in business contracts. Additional technical insurance provisions should also be included to clarify the parties' agreement.

In all events, even if you do not negotiate your own business agreements, beware of signing a vendor's standard form of agreement which may have insurance and indemnification obligations. Upon review of those standard terms, you may determine you are in a position to negotiate more favorable terms. At a minimum, however, you will be aware of your businesses' obligations to provide insurance and can contact your insurance carrier to obtain the requisite additional insured coverage.

Similarly, read the fine print in purchase orders and terms and conditions of sale. These "standard" documents contain legally enforceable terms and you should be aware of your contractual obligations.

Indemnity agreements are another matter for negotiation. Indemnification provisions permit a business to recover from a vendor the amount of losses it has incurred as a result of the vendor's work under the contract if you are sued by a third party. Indemnification agreements can take many different forms, and will depend on the type of contract in issue. If the indemnity agreement is to protect against a vendor's negligence, there are specific requirements. Conversely, if the indemnity is to protect against a vendor's breach of the agreement or violation of law, there are other requirements. Including an indemnity provision limits your businesses' potential exposure as a result of the vendor's performance of work under the agreement.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[An Unconventional Result]]> https://www.hwelaw.com/?p=46085 2020-05-02T12:58:05Z 2018-03-01T06:00:00Z levans.jpg

In Indiana, when an employee is laid off from the job, through no fault of his own, or even when he is discharged, he has a right to file a claim for unemployment compensation. Unless the discharge was for what is termed "just cause," examples of which are fighting on the job (and being the aggressor,) using abusive language, making 190 long distance phone calls on the employer's phone, some to a Texas firm which provided odds on the outcome of sporting events or leaving a threatening message on a supervisor's phone at work, the claim is not usually even opposed by the employer.

But, even so, some creative employers have figured out a way to avoid payment of these benefits and that is by not having any employees at all. No employees, no unemployment compensation.

How can this be done? By classifying "employees" as self-employed independent contractors.

And Indiana law says sometimes it works if:
The employer doesn't control the person, the work is outside the usual course of business, if the person is in an independent business or is in sales and paid by commission.

But sometimes it doesn't work.

Here's a true story...only the names have been changed.

Mega Corporation is in the business of pairing drivers with manufacturers who need drivers to transport recreational vehicles to its dealerships. Adam Jones is a professional driver.

Mega required that Adam sign a contract which stated that Mega would not "employ" him or anyone to provide these driveaway services. Adam signed the contract and was then paid as a self-employed independent contractor, rather than as an employee. Mega thought this arrangement would also save them the cost of providing the benefits typically paid to employees. After no longer working for the company, Adam applied for unemployment compensation benefits. Mega denied his claim arguing that since Adam had never become an employee he did not qualify for unemployment benefits which can be paid only to employees, not to independent contractors.

Not so fast, said the courts. Regardless of the presence of a written contract, it was still up to Mega to prove that Adam had been performing work outside the usual course of the company's business. Mega failed to do so. The work Adam was doing was exactly the type of work in which Mega was engaged, so Adam was entitled to full unemployment compensation benefits despite the written contract in which he had agreed that he was not an employee.

The moral of the story: Any written contract, no matter how long, well written, and detailed, is not enforceable if it is contrary to either state or federal law.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[What Does Everyone Need to Understand About Asset Protection?]]> https://www.hwelaw.com/?p=46086 2020-05-02T12:58:07Z 2017-12-04T06:00:00Z kwolak.jpg

After working hard and accumulating assets for many decades, it is not uncommon for our thoughts to turn to the question: "How I can protect my assets." We all hear stories from colleagues and friends about the business person who lost everything when their business failed or who suffered a large judgment due to a personal injury and lost significant assets. In one form or another, we all have asset protection sitting uncomfortably in the back of our minds.

The main reason these fears go unresolved is that asset protection involves an extremely complex and evolving mesh of federal and state laws and Court decisions. While this article cannot reconcile all these complexities, it will convey some critical steps you can take to protect yourself.

Assume today you injured someone in a car accident or were served as the defendant in a lawsuit, there are two key questions: 1) do you have adequate insurance coverage for this potential liability? and 2) do you understand it is most likely too late to undertake any asset protection planning?

It is a typical, but wrong, gut reaction to try to move assets to protect them after an incident. People's first thoughts are to transfer assets into the name of their spouse or children. There are two reasons this is a bad idea: 1) once the claim has arisen, the Indiana Uniform Voidable Transaction Act (I.C. 32-18-2) allows the creditor to void your transfer so it is not likely to do any good whatsoever; 2) when moving assets you are very likely to convert assets that are protected from your creditors to assets that your creditors can seize. For these reasons you should avoid your initial instinct to give your assets to others to "protect" them.

Certain assets you own are already well protected and their ownership should not be altered. These include your personal residence owned with your spouse. This property is designated as Tenancy by the Entireties Real Estate and can only be attached if your creditor has a judgment against both you and your spouse. In most circumstances, this property would continue to be protected and its ownership should not be disturbed.

A second asset that is largely or completely exempt from your creditor claims is your retirement accounts. Please note if you inherited a retirement account from someone else (i.e. an "inherited IRA") those accounts are NOT exempt from your creditor claims. Under Indiana law, the exemption for these retirement accounts is unlimited outside of bankruptcy, and in 2017 limited to $1,283,025 if you were to file a bankruptcy petition.

The third asset that is protected is the Proceeds and Avails of a life insurance policy (I.C. 27-1-12-14(e)). These protected benefits include the death benefit, cash surrender and loan values, premiums waived, and dividends not received in cash

As stated above, after an incident takes place you do not want to divest one of these protected forms of assets, nor do you want to attempt to create them after an incident. In all circumstances, seek legal advice before you act.

With an eye toward planning in a non-emergency situation, you may want to consider the following:

1) Verify that you have adequate liability insurance. If you do not have an "umbrella policy" you should consider obtaining one.

2) If you are NOT holding your residence as Tenancy by the Entireties Real Estate, or in an Indiana trust that qualifies as a "Matrimonial Trust" under I.C. 30-4-3-35 (effective July 1, 2010) you should consider doing so BEFORE an incident arises. If you executed an estate plan where your residence was placed in trust prior to 2010, you should verify that the transfer was modified to qualify as a transfer to a Matrimonial Trust as soon as possible.

3) Indiana does not currently offer the option for a Self-Settled Asset Protection Trust, but approximately seventeen other states do offer some version of this type of trust. However, even creation of such a trust could be subject to a four or even ten year lookback period, so specialized legal representation would be necessary in such matters.

When considering asset protection, first be careful not to expose assets that are already protected. Second, take simple steps to obtain proper insurance coverage and proper titling of assets. Third, if you have a desire for even more asset protection, do not attempt to do so without specialized legal counsel.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[Minding Your Own Business: The Importance of Ownership Agreements for Small Businesses]]> https://www.hwelaw.com/?p=46087 2020-05-02T12:58:10Z 2017-12-04T06:00:00Z ashupp.jpg

Starting a new business is easy, especially in the Internet age. Go to the Secretary of State's website, fill out a few forms, pay a filing fee, and boom - you are now the proud owner of a corporation, limited liability company, or limited liability partnership. But protecting your new business is a different matter. Few things are worse than investing your life's savings into a new business only to find out years later that your business was not properly protected. For this reason, and many others, drafting appropriate shareholder, member, and partnership agreements is critical to protecting your business and the dreams you have for it.

Let's take a basic corporation as an example. A corporation is formed by filing articles of incorporation. The articles specify basic matters regarding the corporation's powers. A corporation also has bylaws, which will specify things like how many people serve on the company's Board of Directors, the method of setting shareholder and director meetings, the process for dividends, and a variety of other matters.

However, these documents rarely provide all of the protection that a business owner needs. Suppose you and a friend form a corporation, with each of you owning 50%. At the beginning, you are likely on good terms. However, the good vibes won't last forever. What happens when your friend wants to sell her shares to a third party that you don't like or who doesn't understand your business?

This is where ownership agreements can play an important role. Shareholders in Indiana corporations can enter into shareholder agreements governing the ownership and transfer of shares, voting rights, how to resolve disputes, and a variety of other things. The same is true for limited liability companies and limited partnerships, which can prepare operating agreements and partnership agreements, respectively.

In our example above, you and your friend can enter into a shareholder agreement requiring the selling shareholder to offer to sell to the other shareholders before selling to a third party. If you want to have more control, you can require company approval before any sale - as long as the requirement is not manifestly unreasonable. Be aware that Indiana law places restrictions on things that shareholders, LLC members, or partners can do.

It's also important to think through your agreements. Suppose your shareholder agreement says that business decisions must be unanimous and, if they are not, then the disagreeing shareholder must sell their shares to the company. Sounds like good protection against an unreasonable partner, right? But what happens when your "friend" wants a salary of $200,000 per year, even though the company can't afford it? If you disagree, you may have to sell; if you don't, you may go out of business. Either way, you may end up in a very expensive lawsuit. A well-drafted agreement can prevent this situation before it occurs by limiting compensation or limiting the types of disagreements that will trigger a buy-out.

For these reasons and more, consult with an attorney before drafting important business agreements and whenever your business needs change. It's still true that "an ounce of prevention is worth a pound of cure."

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[Hoeppner Wagner & Evans Attorneys Win Equal Pay Act Case for Client Based on Summary Judgment]]> https://www.hwelaw.com/?p=46088 2020-05-02T12:58:13Z 2017-08-03T05:00:00Z lkroeger.jpg

John Hughes and Lauren Kroeger recently received summary judgment in a lawsuit filed against their client in Federal Court alleging violation of the Equal Pay Act ("EPA"). The plaintiff, a male employee, sued his former employer, claiming that he was paid less than female employees for equal work. The employer moved for summary judgment, presenting evidence that any wage disparity between plaintiff and female employees was based on factors other than sex. Evidence demonstrated that the employer determined employees' wages were based on two gender-neutral company policies: (1) application of an annual wage rate for new hires, adjusted for the new employee's years of previous experience, training, and related qualifications; and (2) percentage wage increases based on performance evaluation scores in some years and on across-the-board increases in other years.

The employer identified ten female employees who earned a higher hourly wage than the plaintiff, and provided detailed information regarding the calculation of each woman's starting wage rate and the calculation of her yearly wage increases. The Court determined that the wage rates for the higher-paid female employees were calculated pursuant to the employer's two company policies, without consideration of gender. The Court agreed with the employer, holding that the undisputed evidence demonstrated that the employer used appropriate factors other than sex (experience and merit), applied uniformly, to determine wages of the employer's employees.

The Court rejected the plaintiff's argument that the employer's alleged denial of overtime opportunities constitutes a violation of the EPA as having no legal basis. In addition to summary judgment for the employer on plaintiff's EPA claim, the Court granted the employer an award of attorneys' fees and costs due to plaintiff's failure to respond to discovery requests and to appear for his deposition. The Court previously dismissed plaintiff's disability and race discrimination claims.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[Ban the Box Legislation]]> https://www.hwelaw.com/?p=46089 2020-05-02T12:58:16Z 2017-08-03T05:00:00Z jjorgensen.jpg

In my last article, I noted that there will be some significant changes in employment law under the Trump Administration. This remains the case, and seemingly every day new developments emerge.

However there are other sources in employment laws and there are significant developments in those venues as well. One source of change can occur with state or local laws.

The so called "ban the box" legislation is an example of this. It has been common on employment applications for the employer to ask the applicant if she has been convicted of a felony. This question is asked in a "box" which appears on the application.

Some believe that this question, although seemingly neutral on its face, discriminates against minorities who may be disproportionately accused and/or convicted of crimes. An employer's policy not to hire a person who has a criminal record creates the discrimination.

The Equal Employment Opportunity Commission responded to the concern by creating rules governing how prospective employers may use this information. The EEOC posited a three (3) proxy test.

First, how recent is the conviction to the job application? Obviously, the passage of time, without any subsequent and intervening criminal convictions, should dilute the importance of the earlier conviction. There is no "bright line" on the issue, but generally, convictions more than seven (7) years old should not be used.

The second prong of the test focuses on the seriousness of the conviction. Presumably, possession of marijuana should be viewed differently than attempted murder. Evaluating the seriousness of the underlying charge prevents employers from having a blanket policy that no one with a criminal record will be hired.

The third prong continues this "individualized" analysis. It focuses on the nature of the conviction as compared to the job being sought. It is one thing for someone seeking an accounting position to have a criminal record for embezzlement; it is another to have that same applicant having a 6-year old conviction for a bar room brawl.

These tests force employers to carefully review a criminal conviction based on the individual circumstances of the applicant and the job sought. Without question, it ends the practice of a blanket policy that excludes the hiring of ex-convicts.

Opponents haven't stopped here. They want to "ban the box", eliminating the question from the application. Only after an offer has been made can the question be asked. At that point, the three (3) prong tests are applied. Several cities and states have adopted this "ban the box" legislation.

In the last legislative session, Indiana essentially "banned" the "banning of the box." The legislature provided that local towns and cities (like Indianapolis) cannot pass laws which "ban the box".

Where does that leave us? The answer is back with the EEOC three (3) prong test. Employers must conduct an "individualized assessment" of each applicant and any conviction of a crime. One size does not fit all - no blanket prohibitions are permitted. Time will tell if this is enough to prevent the perceived abuses addressed by the ban the box legislation.

If you have questions regarding "ban the box", or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[What Employers and Management Personnel Need To Know About the Americans with Disabilities Act]]> https://www.hwelaw.com/?p=46090 2020-05-02T12:58:19Z 2017-06-02T05:00:00Z kpeil.jpg

What is the ADA and who does it protect?
Title I of the Americans with Disabilities Act of 1990 ("ADA") makes it unlawful to discriminate in employment against people with a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA also prohibits an employer from retaliating against a person for making claims or asserting rights under the ADA, and protects people who are discriminated against because they have a known association or relationship with an individual with a disability. Prohibited employment practices include discriminating against a disabled applicant or employee in recruitment, hiring, firing, compensation, promotion, job assignments, transfer, training, leave, layoff, benefits, and any other employment related activity.

What employers are covered and what must they do?
The ADA applies to employers with 15 or more employees. Employers are required to provide reasonable accommodations to qualified employees who can perform the essential functions of the job.

A reasonable accommodation is a change that accommodates an employee with a disability without causing an undue hardship on the employer. Undue hardship is defined as an action requiring significant difficulty or expense in relation to the size, nature, resources, and structure of the employer's business. Reasonable accommodations may include physical changes to the workplace such as ramps, accessible restroom facilities, and adequate parking spaces to accommodate a person in a wheelchair. Flexibility of work schedules may be considered a reasonable accommodation to allow for breaks or unpaid leave to attend medical appointments. Reallocating a non-essential function to another employee may also be considered a reasonable accommodation.

To be considered a qualified employee, an individual must meet the legitimate requirements for the position. Factors to be considered are whether the applicant or employee has the education, skill, experience, training, or licensing required for the position.

In order to perform the essential functions of the job, an employee must be able to accomplish the basic job duties of the position, with or without a reasonable accommodation. Factors to consider include whether the reason the position exists is to perform that function, the number of employees available to perform the function, and the degree of skill required to perform the function.

What can employers do to protect themselves?
In making employment related decisions, employers are permitted to make non-disability related decisions. For example, an employer may chose not to hire an applicant for lack of experience. However, when disability is a factor in any employment related decision, employers must show that the person is unable to perform the job's essential functions with a reasonable accommodation. A written job description prepared in advance of advertising or interviewing applicants for a job will be considered as evidence of the essential functions of the job. Job descriptions should be reviewed to make sure that they accurately reflect the actual functions of the job.

An employer should not ask or require a job applicant to take a medical examination before making a job offer, and, unless required by another federal law or regulation, it should not make any pre-offer inquiry about a disability or the nature or severity of a disability. When questions arise about an applicant or employee who may be disabled, it is important for employers and managers to talk to the human resources department or consult an attorney as to how to respond.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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by erikcierniak <![CDATA[Small Claims in Porter County]]> https://www.hwelaw.com/?p=46091 2021-03-22T14:31:39Z 2017-06-02T05:00:00Z kkerr.jpg

Small claims courts are intended to provide speedy and informal resolution of claims up to $8,000. In Porter County small claims cases are heard in Valparaiso and Portage. The filing fee is $96.00 and there is a $25.00 fee for service by Sheriff. If you prevail on your claims these fees are generally recoverable, in addition to damages. The amount of fees can change so you should always check with the Clerk of the Court before filing. If your claim is worth more than $8,000 you can bring it in small claims court but you waive any damages over $8,000. Most claims for money damages can be heard in small claims court. If your claim is breach of contract attach the contract to the form or explain that you don't have the contract.

The small claims action must be filed on a Court approved form which the Clerk will provide you. The claims should be described simply. For example: "The Defendant negligently knocked over the Plaintiff's lamp post with her car causing $2,000 in damages." You must have a current address for the Defendant so that they can be properly served with a copy of the Complaint/Claim.

Individuals can file in small claims court without an attorney. However, if you are doing business as a corporate entity or limited liability partnership and the amount in dispute is $1,500 or more you must be represented by an attorney.

If you are sued in small claims court in Porter County you do not need to file an answer or other document responding to the claim. However, if you have a claim against the persons suing you and it is for $8,000 or less it can be filed in this action. The claim must be filed using the Court approved forms provided by the Clerk, and it must be filed with the Court and received by the plaintiff at least seven (7) days before the trial.

In Porter County the small claim is set for an "Initial Hearing". Generally this is not a trial and you do not need to bring your evidence or witnesses. However, read the notice of Initial Hearing carefully. The Court can order the Clerk to set the trial date for the initial hearing.

If the Defendant does not appear at the initial hearing the Court will generally enter judgment for the amount sought by the Plaintiff. If the Plaintiff does not appear the matter will generally be dismissed. If both parties appear, the Court will encourage settlement and may suggest possible mediation. If the parties are unable to reach agreement, the matter will be set for trial.

At the trial, affidavits and other hearsay evidence are admissible. You can call witnesses and can subpoena witnesses to compel their appearance. You will have a relatively short time to present your case so you won't want to bring ten witnesses. Have your evidence prepared and numbered as Exhibits. Ask to admit all of your exhibits at the start of the proceedings. Good Luck.

If you have questions regarding small claims, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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On Behalf of Hoeppner Wagner & Evans LLP <![CDATA[Managing Fraudulent Use of Leave under the FMLA]]> https://www.hwelaw.com/?p=46092 2020-05-02T12:58:23Z 2017-05-01T05:00:00Z jhughes.jpg

The Family and Medical Leave Act ("FMLA") provides important unpaid leave benefits to employees, but also serves as a source of frustration for employers balancing their desire to comply with the law and manage their operations efficiently. Employee requests for intermittent leave present unique and difficult challenges. In these situations, employers must work around unplanned absences due to legitimate leave requests, but must also occasionally address employees who seek fraudulent FMLA leave.

Federal courts have paved a way for employers to respond to employees who use FMLA for reasons other than the intended purpose. To that end, courts have held that an employer does not violate the non-retaliatory prohibitions of the FMLA by terminating an employee if the employer "honestly believes" that the employee has used leave for an improper non-FMLA purpose. Before taking any adverse action against an employee for fraudulent FMLA leave, employers must conduct a thorough investigation, the results of which support the employer's "honest belief" that the employee has engaged in fraudulent use of FMLA leave. Employers must not "jump to conclusions" or "make assumptions" in deciding that an employee was being dishonest about his use of FMLA leave.

The employer's investigation should include specific steps such as (1) capturing observations of employee conduct (which is inconsistent with the employee's leave request) on video and having the video reviewed by an outside medical consultant; (2) obtaining medical review of the employee's FMLA certification forms signed by the employee's doctor and the employee's job description; (3) obtaining a medical report (including an analysis of what the medical consultant observed in the video and the doctor's conclusion that the employee's observed conduct is inconsistent with the medical condition or other reason necessitating the leave); (4) interviewing the employee about his use of FMLA leave. Employers should always allow the employee the opportunity to respond to the allegations, including the opportunity to submit additional responsive information. Depending on the information provided by the employee during the investigation, the employer should consider the possibility of terminating the employee for providing false information during the employer's investigation.

There are other avenues to curb intermittent leave abuse, including requiring a medical certification to initially verify an employee's serious health condition and need for leave, and then requiring another medical certification every leave year, every time the reason for leave changes and every time there is a request for a leave extension. Employers, however, must be mindful to ensure that requests for certification will not be viewed as interference with an employee's FMLA leave. Employers should also review medical certification forms submitted for evidence of fraud. Does it appear that there are multiple different handwritings? Is there evidence that the employee completed the form? Ask the employee whether he filled out the form. Employers can also require an employee to provide a doctor's note for paid sick day substituted for FMLA (provided the employer's paid sick leave policy requires a doctor's note). Consult your legal counsel to discuss handling of these workplace challenges.

If you have questions regarding FMLA, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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