AHI's We Couldn't Make This Up

Guys, it apparently pays to be tall, according to new a study published by Kalmar University in Sweden. The study concluded that the taller a man is, the more he earns at work. Authors studied 500,000 men at the age of 18, then compared their relative salaries at age 28. A man made approximately
6% more money than one who was 10 centimeters (approximately four inches) shorter. One of the study's authors postulated that this was due in part to the fact that tall people tend to get sick less during childhood, thus, giving them more time to develop professionally.

1. FEATURE STORY:
FMLA EMPLOYEE ELIGIBILITY REQUIREMENTS: AS CLEAR AS MUD

Don't be too quick to deny Family and Medical Leave Act (FMLA) leave to an employee over a technicality. Two recent cases show that determining whether an employee is FMLA-eligible and determining what constitutes an FMLA-qualifying serious health condition can be quite tricky.

Case #1: An employee was just nine days shy of his one-year anniversary with his company when he submitted a request for FMLA leave to begin three months later. He intended to help care for his prematurely born infant after his fiancée's medical leave ran out. He was fired the same day, for reasons related to his "skill set." The employee filed suit under the FMLA. The company argued that the employee could not file an FMLA claim because he was not FMLA-eligible at the time he requested leave; one of the FMLA's eligibility requirements is that an employee must have worked for the employer for at least 12 total months.

The court let the case proceed, based on the FMLA provision that an employee must give their employer 30 days' notice when the need for leave is foreseeable. Said the court: It would be illogical to interpret the notice requirement in a way that would require employees to disclose requests for leave as a convenience to the employer, but then would allow that same employer to retaliate against the employee based on the fact that the employee was just short of becoming eligible. (Reynolds v. Inter-Industry Conference on Auto Collision Repair, N.D.IL, No. 08-2115, 2009)

Lesson learned: Think twice about taking an adverse action against any employee for requesting FMLA leave. Firing an ineligible employee who has requested FMLA leave could be prohibited if the employee will be eligible at the time the leave is scheduled to begin.

Case #2: An employee called his supervisor to notify him that he would not be able to make his shift because his son's eye had been cut and was bleeding, so he had to drive him to the emergency room. Diagnosed as having a possible ruptured globe, the son was sent to see a specialist at a different hospital. The specialist concluded that the son had a laceration, but no ruptured globe.

The attendance point the employee accrued for missing work that day put him over the company's policy limit, so he was fired. He sued for employment discrimination and retaliation, claiming that he should not have received the point because the absence qualified under the FMLA, which allows eligible employees to take leave to care for a family member with a serious health condition.

The company filed for summary judgment, arguing that the son's injury turned out to be minor and so did not qualify as a serious health condition under the FMLA. To be a serious health condition under the FMLA, it argued, the child would've had to have been incapacitated for a period of more than three days and treated two or more times, or treated at least once resulting in a regimen of continuing treatment.

The court sided with the employee and let the case proceed. The court noted that at the time the employee requested leave, the doctors believed that the boy might have a serious health condition, in that the injury "would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment." Also, under FMLA regulations, "treatment" includes examinations to determine whether a serious health condition exists and evaluations of the condition. The hospital examinations fell within the meaning of treatment for a serious health condition under the FMLA. (Johnson v. Kmart, et al., E.D.MI, No. 07-14393, 2009)

Lesson learned: An employee could be protected under the FMLA if they take emergency leave for a condition that's initially diagnosed to be a possible serious health condition, even if it turns out that the condition is not serious. So, when you assess FMLA eligibility, consider the diagnosis at the time the leave request was made.

HELP FOR YOUR FMLA COMPLIANCE AND IMPLEMENTATION CHALLENGES —

Including the new regulations that became effective January 16, 2009!

You need expert advice on exactly what steps to take to get your policies and procedures in compliance with the recently expanded FMLA. That's exactly what you will find in the FMLA Complete Compliance Kit.

Plus, you can get the answers to over 115 tricky FMLA questions like:

which events qualify under FMLA;
when you must offer intermittent leave;
how you must handle pay and benefits issues;
how to fulfill notification requirements;
... and more.

Also included in the kit are a guide to state FMLA laws, a sample policy, tracking sheets, and more. Reserve your copy today, risk free.

2. CATHIE'S CORNER: FIRING (OR NOT FIRING) EMPLOYEES THE
BRITISH SCI-FI WAY

I was watching a repeat of Torchwood, a British science fiction series, the other day. I guess you never really turn off the job because in the middle of the story I turned to my husband and said, "You know, if anyone else were caught hiding a Cyberman in the basement, he'd have been fired."...Continue the story.

3. FOOD FIGHTS!

While you probably don't have to deal with employees flinging food at one another across the company cafeteria, you may have to contend with some other management issues that arise when employees bring food into the workplace....
Continue the story.

4. FREE REPORT: COBRA COMPLIANCE COMPLICATIONS MULTIPLIED BY THE ECONOMIC STIMULUS LAW (ARRA)

Check out the Free Report, "COBRA Compliance Complications Multiplied By The Economic Stimulus Law (ARRA)," which explores timely compliance issues for employers. Learn more about which plans, entities, and individuals are covered; special enrollment rights; notification requirements; subsidy periods; and payroll offsets. Also explore subsidy documentation substantiation requirements and what to watch out for when it comes to determining whether a dismissal qualifies as an involuntary termination. Bonus: The report contains recent guidance from the IRS.

5. HR SOAPBOX: WHY HIRING IS A LOT LIKE DATING

A friend was relaying the difficulty she was having finding the perfect new hire, and her trials and tribulations started sounding vaguely familiar to me. I realized it was because it mirrored in some ways her quest for the perfect boyfriend. The more I thought about it, the more I realized that going through the hiring process is not all that different than the dating process....Continue the story.

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