Heather Curry was a manager of a Goodwill Center in Campbellsville, KY. On July 22, 2009, Curry informed her supervisor that she’d need to take medical leave to have surgery. She indicated her leave would start near the beginning of September, depending on when her surgery was scheduled.

A few days later, her supervisor informed Curry that she wasn’t happy Curry would be taking time off, because that meant she would have to cover Curry’s post at the Campbellsville Goodwill.

On July 31, 2009, Curry informed Goodwill’s HR department of her need to take FMLA leave. The department then sent her FMLA paperwork and requested that she return her certification forms by Aug. 15, 2009.

The finalized certification forms were not submitted until Aug. 19 (more on that later).

Terminated for timekeeping, performance issues

Just prior to submitting her paperwork, on Aug. 17, Curry was informed by Goodwill that she’d been terminated for falsifying timekeeping records and other performance issues.

Prior to the termination notice, Curry had never received any disciplinary reports or reprimands from the company. In fact, her store had received a number of company awards and she’d been given a raise due to a positive performance review she’d received in the past year.

On Aug. 27, Curry received a notice that her FMLA request had been denied because “Goodwill has no obligation to provide a leave of absence to a former employee.”

As a result, Curry sued Goodwill claiming it had interfered with her right to take FMLA leave and retaliated against her for requesting medical leave.

Goodwill requested summary judgment in an attempt to get the cause thrown out before it made it to trial.

The request was shot down by the court because there appeared to be a legitimate reason to suspect that Goodwill did in fact terminate Curry because she requested FMLA leave.

So now the case will proceed.

Two areas where Goodwill dropped the ball:

• Curry’s supervisor was on record as having said she wasn’t happy that Curry had requested medical leave, and
• Goodwill had no paperwork to back up its claims that Curry was terminated for timekeeping violations or performance issues.

It’s important to note that many at-will employers feel as though they do not need to document performance issues to support a termination — and in some cases that’s true.

But supporting documentation will inevitably be needed in cases where an employee is terminated after having just requested FMLA leave. And seeing as how most FMLA requests are unforeseeable, it’s crucial to always document performance problems and violations of company policy.

Policy can’t be more stringent than FMLA

In issuing its ruling that Curry’s case could proceed, the court provided additional guidance on complying with the FMLA that employers should take note of.

In the case, the issue of whether or not Curry’s FMLA certification paperwork was late was put under the microscope.

As you know, the FMLA says employees can have up to 15 days to return their certification unless it is “not practicable” under an employee’s specific circumstances to do so. And if an employee fails to return their certification “in a timely manner,” their employer may deny FMLA leave until the required certification is provided.

That, according to the court, meant Curry’s FMLA leave couldn’t have been denied if she missed her Aug. 15 paperwork deadline, just delayed — assuming she were still an employee.

In addition, the court said as long as Curry provided her completed certification paperwork prior to the date her leave was scheduled to begin, her leave request couldn’t be denied for not handing in her paperwork in a timely manner.

Bottom line: If Goodwill had denied her leave request for failing to hand in her paperwork in a timely manner, that would mean the company’s procedural requirements would’ve been more stringent than the FMLA’s — which is not allowed.

Cite: Curry v. Goodwill Industries of Kentucky, Inc.

This post previously appeared on our sister website, HRBenefitsAlert.com.

IRS recently came out with a Chief Counsel Ruling (IRS Info. Ltr. 01-0069) that says there are certain circumstances when a person can fill both employment roles at the same company – at the same time.

Here’s a rundown of the ruling and how you can keep your company in compliance.

Look at each position individually

In this instance, IRS received an inquiry as to whether it was possible for someone to work for a company in both capacities: an employee paid by Payroll and an independent contractor paid through Accounts Payable.

The Taxman ruled that that could in fact be the case. In very specific cases. When it is evaluating worker classification IRS reminds that it looks at the specific duties and behavior for each role that plays on its own.

So an individual could be working for your company in one department in a capacity that makes him an employee but also do work for another department in the capacity of an independent contractor.

Which means HR and Finance could have a lot more gray areas to navigate.

This situation may be getting increasingly common, especially as folks are looking to make extra money.

Here’s an idea of how this could play out. Perhaps one of your very own finance employees has a background in graphic design, so she helps Marketing with some new logo designs. While she’s on your payroll for her work in your department, you can cut her a check through A/P for the logo work because she’d be an independent contractor in that capacity.

Bottom line: Already being an employee isn’t an automatic knockout factor for independent contractor eligibility.

Of course, that goes both ways. Just because you have someone doing contract work for you that doesn’t mean that person couldn’t lop into employee territory if it starts doing work in another capacity for your company. (And you know IRS loves to find folks who should really be employees!)

 No time like the present

This new ruling should have all companies stopping for a minute to take a look at the current worker classification calls they’ve made. Even if you don’t have any scenarios that fit this bill, it’s wise to make sure you’re confident in the decisions you’ve made (with the documentation to support them).

Both IRS and the Department of Labor have vowed increase enforcement of worker classification issues this year. So companies that have never received attention or scrutiny just may find themselves having to answer for their decisions.

 3-factor review

Straight from IRS, here are the factors you need to consider:

• Behavioral: Does your company control or have the right to control what the worker does and how the worker does his or her job?
• Financial: Are the business aspects of the worker’s job controlled by your company? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.), and
• Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Hostile work environment cases can be tricky – after all, there’s no objective line where a series of incidents becomes severe or pervasive.

Cumulative effect

But as this case shows, even if individual incidents don’t add up to a hostile work environment, they can do so when taken collectively.

Anna Hall sued the city of Chicago, alleging a hostile work environment. Specifically, Hall said that because she was the only female plumber in the Department of Sewers, her manager:

• assigned her menial work, including alphabetizing files and videos
• prohibited colleagues from interacting with her
• made inappropriate comments, including that he could “slap that woman and get a promotion,” and
• purposely bumped into her in the hallway one day.

Hall complained, but her manager dismissed the complaints. So she sued.

A lower court took each incident separately, concluding that none added up to a hostile work environment.

On appeal, a circuit court said it was improper to “carve up the incidents” and analyze each individually.

Taken together, the court ruled, the incidents were severe and pervasive enough to constitute a hostile work environment.

The case is Hall v. City of Chicago.

Even the judicial system, often slow to react, has recognized that electronic storage of records is now the norm and not the exception, and changes to the Rules of Civil Procedure have been in effect since 2006.

What does the increasing prevalence of electronic records mean to HR professionals as they try and protect their employers against employment law liabilities?

Much more information is potentially available – studies indicate than more than 70% of corporate records are now stored electronically and 30% are never printed. That embarrassment of informational riches can cut both ways.

Emails lurking in your systems can be a nightmarish smoking gun.

But being able to retrieve all kinds of files from plaintiffs and complainants can also work for you — by casting doubt on the seriousness of any allegations.

Step One: The overall plan

First step: Get your administrative ducks in order. Here’s a checklist from Forbes:

• Remember, less is more – All companies should develop and enforce a record retention policy outlining what types of data should be kept and for how long. The goal should be to only hang on to what’s necessary, which will make the discovery process easier. It also helps with security and data center efficiency.
• Collaborate – For e-discovery to go smoothly, IT, Legal, HR and other departments must work together to develop policies and procedures.
• Communicate – One key part of all e-discovery procedures should be a plan for how all necessary parties will be informed that a lawsuit is pending. That includes setting a plan to notify IT of impending legal action so tech staff can begin saving relevant information.
• Stay organized – Keeping information logically organized, in easily searchable formats and without redundancies can go a long way toward reducing e-discovery costs.
• Use quality assurance – It’s not enough to just put policies and procedures in place — you also have to make sure they’re being followed. That means periodically checking in on preserved data to make sure you’re not keeping too much or too little.

Step Two: Down to the details

This is the technical part.

Here’s a multi-point plan to ensure you meet your Locate, Preserve, Produce and prevent Sanctions for Spoliation (LPPS) obligations relating to Electronically Stored Information (ESI), courtesy of attorney Paul Prather of the employment law firm Littler Mendelson:

• Develop and enforce records retention and destruction programs. Once you know litigation is coming, routine document retention/destruction polices need to be suspended.
• Draft defensible litigation hold instructions. It’s a good idea to form an e-discovery response team including someone from IT to identify all possible custodians of relevant ESI, and identify all systems where it may be stored.
• Commit to an evidence preservation program. Clearly describe the subject matter of the hold to all ESI custodians and emphasize that the hold is “mandatory.”
• Monitor and enforce custodian preservation and data collection. Designate a contact person for the litigation hold; provide detailed instructions how ESI is to be preserved.
• Ensure a comprehensive search methodology. When you meet with the attorney(s) for the other side, you’ll be asked to identify the types of different IT systems in use and the scope of the electronic records sought, and whether they will be submitted in searchable format or in images only.
• Don’t leave real data loss undetected. If data was lost in a “grossly negligent” manner, inferences will be drawn against you – and you may have just lost your case.
• Hire a forensic computer specialist. You have to show that you know what you’re talking about.
• Take reasonable steps to protect privilege. You don’t have to hand over any document prepared with attorneys in preparation for litigation.

Need a lesson for managers who don’t take “all this digital stuff” seriously? Tell managers about the exec who wrote: “If [it’s] destroyed in the course of normal policy and litigation is filed the next day, that’s great. We followed our own policy and whatever there was that might have been of interest to somebody is gone and irretrievable.”

That was intentional destruction of evidence. The manager was held in contempt of court and the company lost the case.

Click here to learn more!  

Click here to learn more!  

Jeffrey Knutson was a location general manager for a frozen food delivery service.

One of his job requirements was to meet Department of Transportation (DOT) eligibility requirements and be available to drive a delivery truck.

That said, in his two years on the job, Knutson very rarely got behind the wheel as part of his job.

Then, in 2008, he suffered a penetrating eye injury.

Not the worker’s call: Court

Knutson’s doctor refused to mark him as “medically examined and certified” for the driving part of his job. The firm gave Knutson 30 days to find a non-DOT-qualified job at the firm. When he didn’t, he was fired.

Then he sued, claiming the company failed to accommodate his disability. Knutson argued that driving a delivery truck wasn’t an essential function of his job.

The court disagreed: Knutson’s personal experience had no bearing on what was an essential function.

Instead, it’s “the written job description, the employer’s judgment and the experience and expectations” of managers that establish essential functions, according to the court.

The case is Knutson v. Schwan’s Home Service, Inc.

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It was time for us to ramp up our wellness activities.
We hoped that helping staffers live healthier lives might help us with those ever-rising healthcare costs.
We knew that it was crucial to get employees involved, but we also knew they were only half of the challenge. Getting staffers’ spouses and dependents on board would really help us in the long run.
But first, we needed to get buy-in from staff.

$1,000 incentive

Our initiative was based around an online portal that workers could access anytime at home or work. Within that portal, we had a two-step program.
The first step was simple enough: Employees would get $300 if they completed an online assessment and attended an on-site health screening.
But if staff members wanted to earn the other $700 we had earmarked for each participant, they’d have to put in some legwork.
The second phase revolved around accumulating points. Employees could gain points by:

• viewing educational videos on health risks, and
• tracking healthy activities like water intake, hours slept at night, exercise, seatbelt use and more.

Workers could also earn points by attending wellness events we sponsored onsite and participating in weight-loss and physical-activity challenges.
Finally, receiving a physical, going to the dentist or getting a colonoscopy could also gain staffers points.
The goal for each participating employee: 10,000 points. Once staffers reached that number, we handed over the extra $700, for a total of $1,000 earned for healthy living.

Get everyone involved

We had a lot of success with the program, but we also remembered how crucial it was to get spouses
and dependents involved.

Initially, spouses and dependents didn’t have to participate for employees to earn the full $1,000.

But we decided to change that because, after all, spouses and dependents incur health costs, too. Getting them involved would drive costs down. So that’s what we did.
A crucial part of this phase of  our initiative was to send info on the program directly to employees’ homes. That way, spouses and dependents would feel invested in the program.

Below the national average

Our well-thought-out wellness program helped drive our annual healthcare cost increases below the national average.
That means we haven’t had to ramp up co-pays, deductibles or out-of-pocket costs.
Even better: Our employee surveys say that satisfaction is high. We like to think that’s due in part to having happy, healthy staff members.

The Congressional Budget Office (CBO) thinks not.

With construction of the health insurance exchanges nearing completion and insurance companies beginning to submit 2014 policy proposals to states, Republicans are continuing to push legislation through the House in an attempt to repeal Obamacare.

Republicans’ latest bill is entitled H.R. 45: To repeal the Patient Protection and Affordable Care Act and health care-related provisions in the Health Care and Education Reconciliation Act of 2010.

On May 16, it passed the House by a vote of 226 to 192.

The bill is part of a long line of bills attempting to repeal Obamacare that have passed the House recently. And like those to come before it, the bill’s expected to die in the Senate.

Requested CBO cost estimate

But what makes this bill noteworthy is that prior to taking up the bill, House Budget Committee Chairman Paul Ryan (R-WI) put in a request to the CBO asking it to provide a cost estimate for the legislation.

In a nutshell, Ryan’s request asked the CBO what it would cost to repeal Obamacare.

The CBO denied his request, stating that it would take resources away from completing its analysis of President Obama’s latest budgetary proposals.

But the CBO did point to estimates it — along with the Joint Committee on Taxation (JCT) — prepared for House Speaker John Boehner (R-OH) last July on the budgetary impact of repealing the law.

The CBO said that although it hasn’t updated its projections since July, it said that it would expect similar results were it to do so in response to Ryan’s request.

Cost: $100 billion

Last July, the CBO said … repealing the ACA (Affordable Care Act) would affect direct spending and revenues in ways resulting in a net increase in budget deficits of $109 billion over the 2013–2022 period.

Why the $109 billion price tag? Because any savings achieved from eliminating the insurance coverage mandates in the law would be more than offset by “other spending increases and revenue reductions that repeal of the ACA would entail,” said the CBO.

In total, the CBO estimated that savings from 2014 to 2022 resulting from the repeal of Obamacare insurance coverage mandates would be $1.2 trillion. But the cost of repealing other provisions of the law would total about $1.3 trillion.

This post originally ran on our sister website, HRBenefitsAlert.com.