Administering the Family Medical Leave Act (FMLA)

Prior to the passage of the FMLA in 1993, American workers had few options when they needed extra time off from work due to their own serious medical conditions and accidents – or those of immediate family members. In fact, workers often had to use up all their vacation and sick leave benefits, if entitled to any, and then worry about their job security if they needed more time off. (However, eligible women could seek the special help offered by the 1978 Pregnancy Discrimination Act). 

Fortunately, the Family Medical Leave Act is still helping many 21st century workers address critical family caregiving duties and remains one of the signature pieces of legislation from the Clinton era.

Here’s a brief overview of specific provisions of the act that can help your qualified workers.

What basic opportunities does the FMLA offer qualified employees?

If a worker meets the minimum qualifications referenced below, it’s possible to take up to twelve (12) weeks of unpaid leave during a calendar year to take care of seriously ill family members, new children or the individual’s own major medical condition.

In 2008, the Family Medical Leave Act was updated so that qualified workers could also take time off work to take care of immediate family members who became very ill (or were seriously injured) while serving in the military.

The FMLA guarantees that qualified workers can take the extended time off work without having to worry about losing their jobs, their seniority or their employer-provided health care insurance.

Which types of employees are qualified to use the FMLA?

  • Those who have employers with 50 or more workers on the payroll for at least 20 workweeks during the preceding or current calendar year. A worker may still qualify even if all the 50 workers aren’t working at the same site – if they work within a 75-mile radius of one another;
  • Those who have worked for their employer for a minimum of 12 months, for a total of at least 1,250 hours. This means that many part-time workers may not qualify for FMLA leave. However, there are special rules that may apply to workers who are teachers, are highly paid – or are flight crew members of airlines;
  • Employees taking time off from jobs to handle their own “serious health conditions” – or those of covered family members. This time may also be used to take care of a new child or a servicemember in the immediate family who has been wounded.

Note:  Now that same-sex marriage is legal in all 50 states, LGBT (lesbian, gay, bisexual and transgender) individuals can also qualify like other workers to take care of their family members.

General questions often raised about the FMLA by employers and employees

Question 1:   Can the leave time requested be intermittent during a calendar year?

Answer 1:     Yes, if all the time that’s taken is counted toward the maximum amount of time off

                     allowed (12 weeks).

Question 2:  What government agency oversees and administers the FMLA for all federal

                     employees – as well as all state and local government workers and private

                     employees?

Answer 2:   The U. S. Department of Labor’s Wage and Hour Division. This is noted in Fact

                   Sheet #77B entitled, “Protection for Individuals Under the FMLA.”

Question 3: Are all workers qualified to take time off from their jobs under the FMLA entitled

                     to receive pay while away from work?

Answer 3:    No. The FMLA doesn’t require employers to pay qualified employees while they’re

                    taking this type of leave. However, it’s up to your employer to let you make a claim

                    for regular vacation time, sick leave or annual time off.

Question 4: Can a qualified worker ever be granted more than 12 weeks of paid or unpaid

                     FMLA leave in one year?

Answer 4:   An exception only exists for qualified family caregivers of wounded

                    servicemembers. They’re allowed to take up to 26 weeks off from their jobs in a

                    given calendar year.

Question 5: Can a qualified worker request more than 12 weeks off under the FMLA to take care

                    of a newborn – or a newly adopted child?

Answer 5:   In general, the answer is “No.” However, individual states can pass their own

                   versions of the FMLA and provide somewhat different benefits. To date, the Texas

                   Workforce Commission says that Texas has not passed such legislation.

Although the Family Medical Leave Act is a straightforward piece of legislation, it’s been updated with new rules and regulations and interpreted by the courts. Therefore, it’s usually wise for employers to ask their Houston employment lawyer for help if they have any specific questions about properly handling FMLA issues.

Please feel free to contact Murray Lobb so we can help explain any specific aspects of the FMLA to you as you provide its benefits to your employees. We’re always available to research any questions you may have.

Final Rule on Overtime Released by Department of Labor

May 18, 2016 – The U.S. Department of Labor has released its final rule on overtime under the Fair Labor Standards Act. The Administration estimates that the new rule will extend overtime protections to 4.2 million Americans who are not currently eligible under federal law. Once effective, the rule will raise the salary level from its previous amount of $455 per week (the equivalent of $23,660 a year) to $913 per week (the equivalent of $47,476 per year) in 2016. The rule will also raise the compensation level for highly compensated employees from its previous amount of $100,000 to $134,004 annually. The final rule also establishes a mechanism for automatically updating the salary level every three years, with the first update to take place in 2020. These changes take effect on December 1, 2016. The final rule may be viewed here:  https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-11754.pdf.

The final rule does not make any changes to the duties test for executive, administrative and professional employees, which affects the determination of who is exempt from overtime. Administrative employees who do not meet the special provision for administrative employees will be eligible for overtime if they earn below the salary level set in the final rule and they work more than 40 hours in a week. 

In response to the new overtime rule, employers have the option of:

A. Paying time-and-a-half for overtime work;

B. Raising the workers’ salaries above the new threshold;

C. Limiting worker’s hours to 40 per week; or

D. Some combination of the above.

Starting a New Business: Avoid These common Mistakes

Starting a New Business: Avoid These Common Mistakes

Few activities in life are more challenging and exciting than starting a new business. So, if you’re determined to succeed, always accept advice from those who’ve been where you are now and know what often works best. Careful early planning can pay you back many times over later when your properly marketed goods and services motivate satisfied customers to tell others about your unique offerings.

By making the hard choices described below during your start-up phase, you can avoid many errors that often prevent hard-working people with great ideas from carving out a highly profitable niche in today’s marketplace.

The Key Early Decisions New Business Owners Must Make

  • Choose your co-owners wisely. Always look beyond each person’s academic degrees and decide if their experience is strong enough to withstand the challenges of running a business. Clearly define each owner’s responsibilities and how you’ll regularly monitor each other’s performance. Consider requiring every major stakeholder to undergo professional personality testing so you’ll know if you can each offset the specific strengths and weaknesses of one another that high-stress situations often reveal.
  • Fully track all money being spent and coming in. Be sure to hire a competent, in-house accountant. Agree in writing how all funding will be spent.
  • Have your lawyers draft one or more standard form contracts that fully protect your company’s rights. They should be thorough, but not so burdensome or one-sided that customers will refuse to sign them.
  • Meet early on with your trustworthy Houston business law attorneys. Carefully listen as they describe the various business structures that might best suit your company and the different tax consequences that accompany each one. Learn all you can about the state and federal employment laws and regulations you must follow. Ask for help drawing up your first employee handbook (spelling out all employee benefits) and decide if your employees should all sign “at-will” employment offer letters. Obtain advice on choosing the best available name for your company. Inquire about having everyone sign NDAs (non-disclosure agreements) protecting company secrets. And learn all you can about properly handling sexual harassment issues and claims of discrimination;
  • Create a flexible business plan with reasonable goals. This should normally be drawn up after you’ve decided on your business structure (such as a “C” corporation or “LLC”) and created a written operating agreement that clearly defines all key partners’ general duties and responsibilities, financial contributions, and liabilities. Be sure everyone knows that added responsibilities may be added to each person’s assigned tasks as unexpected needs arise. You should also agree in writing whether you must obtain help through arbitration or mediation services when internal problems cannot be readily resolved;
  • Hire the best employees you can afford. Just as you need to choose co-founders with proven records of making ethical business decisions, you also need highly flexible employees who are told up front that they may need to “wear many hats” as new duties must be assigned.
  • Check out your competition ahead of time and properly fund adequate marketing of your goods and services. Never assume all your company’s offerings are completely unique. Fully handle all due diligence tasks in a timely manner so you can hopefully determine how your competitors have been successfully reaching the very customers you hope to win over. Be sure the market (or location) you’re targeting can handle all the current competition – and make adequate plans to distinguish your brand from all the others.

While the suggestions shared above should help you, always be ready to consult with others as you broaden your web of industry experts and colleagues. If you need to raise more capital for your business, keep in mind that it’s often wise to befriend employees at companies currently funded by the specific venture capitalists you hope to meet with in the future.

Always Place a High Value on Customer Feedback – Readily Making Changes as Needed

No matter how good your in-house experts may be, your customers can often offer you invaluable information about how you may need to periodically change specific products or services. You should also ask them for their ideas on how you might improve your marketing efforts. Consider offering fee discounts to current customers if they’ll undergo brief interviews about your company. You might also simply ask customers to complete brief online surveys about your products and services.

If you’ll meet regularly with your co-founders and openly discuss problems as soon as they arise, chances are your new business will succeed.