Contents
FMLA: Refresher
FMLA: Employee Notice
Business Succession Planning
DOT Drug and Alcohol Testing
What's New
Dates to Remember
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FMLA: Refresher
REFRESHER: Who is covered? What forms to use?
It has been more than four months since the new FMLA regulations became effective. Employers must know whether they are subject to the FMLA. Covered employers must be operating under the new regulations and new forms created by the Department of Labor (“DOL”). We wanted to provide a refresher . . . just in case.
An employer subject to the FMLA is “any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” In addition, “any person acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer” may also be subject to the FMLA.
The FMLA adopts the “joint employment” test, meaning that “joint employers,” including temporary placement agencies, may also be subject to the FMLA. The FMLA also applies to certain types of employers regardless of the number of employees they have. These include public agencies and schools. “Public agencies” include federal and state agencies, as well as any political subdivision of a state, including municipalities and counties. The FMLA applies to public and private elementary and secondary schools. It does not apply to colleges, universities, trade schools or pre-schools. For public agencies and schools, it is possible that the employer is covered (and must post a notice and have a policy), but has zero eligible employees (because of the requirement that to be eligible the employee must work at a site at which 50 or more employees are employed within a 75-mile radius).
Covered employers must now be familiar with the new regulations and must be managing FMLA leave and requests for FMLA leave with the new forms provided by the DOL, including WH-380E, WH-380F, WH-381, WH-382, WH-384 and WH-385. These forms, available here, can actually help employers comply with the mandated process for determining whether an employee is eligible for FMLA leave. All of the information available from the DOL suggests that it will tolerate nothing less than immediate and complete compliance with the new regulations. Perhaps the best evidence of this is DOL Opinion Letter, discussed in the next article. The message is clear: there is no grace period, there is no time to play “catch up.” Covered employers must comply. Now.
By Courtney Bru, cbru@dsda.com.
FMLA: Employee Notice
Employers can enforce reasonable call-in rules
The Department of Labor recently released a clarification of employee notification procedures under the Family and Medical Leave Act. The FMLA requires an employee, when possible, to give an employer 30 days’ notice before a leave is to begin. When it’s not possible to provide 30 days’ notice, employees must provide notice as soon as practical. According to the FMLA regulations, this meant that an employee must at least give verbal notice to an employer within one or two business days after the need for leave is known. In a 1999 Opinion Letter, the Department of Labor interpreted the regulation in a way that conflicted with the attendance policies of many employers. That Opinion Letter stated that an employer could not enforce an attendance policy that required employees taking intermittent FMLA leave to report within one hour after the start of their shift unless they were unable to report due to circumstances beyond their control. Policies like this were unenforceable, in the opinion of the Department, because they were stricter than the regulation which allowed employees up to two days to report an absence.
In 2008, the Department acknowledged that it had misinterpreted the notice provisions of the regulation and began developing a revised regulation to clarify the issue. The Department recognized that call-in procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. The regulation under development would, therefore, allow employers to enforce call-in procedures that did not impose a timing requirement stricter than the FMLA requirement.
The revised regulation became effective January 16, 2009. It includes the statement that generally it should be practical for an employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements. The result is that, absent emergency situations, when an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practical for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours). As with most government pronouncements, the new regulation contains a caveat that the determination of when an employee could practically provide notice must take into account the individual facts and circumstances of the employee’s situation.
By Rebecca M. Fowler, rfowler@dsda.com.
Business Succession Planning
REASONS FOR FAMILY BUSINESS SUCCESSION PLANNING
Every family-owned business should make business succession planning a top priority. Eventually, everyone wants to retire. If you own a family business, retirement is more than a matter of deciding not to go to the office anymore. In addition to ensuring that you have sufficient financial resources on which to retire, the larger question of what happens to the business is of major importance. This includes determining who will own the business and in what proportions? Who will lead the business, and what specific responsibilities will that person have? What is the timetable for the plan? What is the period of shared responsibilities, if appropriate? Will your business continue or will it be sold? What transaction will effectuate the transfer of ownership and control? How do you handle family members that work in the business versus those that do not? An analysis of the potential effect of liquidity issues that may arise when the majority of the family’s wealth is concentrated in the assets of the business.
Proper business succession planning addresses these issues thereby allowing the business owner to establish a seamless transition between the owner and the future owners of the business. In family businesses, succession planning can be especially complicated because of the relationships and emotions involved and because of the discomfort most people have discussing topics such as aging, death, and their financial affairs. Perhaps this is why more than 70 percent of family-owned businesses do not survive the transition from the first to the second generation. In most cases, the death knell to the survival of this business is estate taxes or family disharmony, both issues that an effective family business succession plan will address.
Some suggestions to consider when preparing a family business succession plan include the following:
- Examine the unique talents, interests and needs of each family member. Instead of arbitrarily dividing the wealth equally, assess the particular needs of each family member. Look at each individual’s goals, objectives and ability to handle wealth.
- Recognize those individuals who contribute to the success of the business. Put yourself in the shoes of family members who have helped build the business with their talent, sweat and tears. Is it fair to divide the business equally among the participating and non-participating family members alike?
- Consider diversification of your assets outside of the business.
- Buy-out non-active family members. If dividing your business among all family members is your ultimate decision, consider a plan that includes a means by which the active members may buy-out the nonparticipating family members.
- Don’t allow tax considerations to be the major factor in developing your plan. At the outset, identify your goals and objectives for the business and your family. Then, seek tax planning advice.
- Obtain expert advice from attorneys, accountants and business appraisers who specialize and are experts in this type of work.
- Discuss the plan as soon as reasonably possible. Explain the plan to family members. Explain how the plan operates and will meet your goals. This will eliminate future surprises.
- Review the plan on a frequent basis. It is never finished. To meet ongoing changes the plan must be regularly reviewed and updated.
By Jeffery C. Rambach, jrambach@dsda.com
DOT Drug and Alcohol Testing
COURT RULES ON DIRECT OBSERVATION OF Urine COLLECTION
You may recall that in the October 2008 Employer’s Legal Resource, we discussed new DOT regulations which were supposed to have taken effect August 2008 but which had been stopped by various court challenges. Specifically, the DOT decided to hold tight on the most controversial part of the new regulations: direct observation of urine collection.
For some time, the DOT permitted an employer to require urine collection under direct observation for follow-up or return-to-duty testing. The new regulations changed it from “may” to “must.” In other words, the DOT was requiring that urine collection for follow-up and return-to-duty testing be done under direct observation.
The DOT felt this was necessary due to the proliferation of devices which can be used to alter the results. To combat this, the DOT was asking that the employee lower pants and underwear to see if the employee was wearing a prosthetic device to cheat the system.
On May 25, the Court decided that, despite the intrusive nature of the procedure, the DOT was well within its rights to make such a regulation.
It is anticipated that the DOT will take steps to reinstate the regulation in the very near future so that all follow-up and return-to-duty testing be done on urine which was collected under direct observation. We will keep you posted.
By Kristen L. Brightmire, kbrightmire@dsda.com
What's New
ANNOUNCEMENTS
Doerner, Saunders, Daniel & Anderson, L.L.P. is proud to announce that two lawyers from our firm were selected “Lawyers of the Year 2009”.
Best Lawyers designated “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community was honored as the “Lawyer of the Year.”
These lawyers being honored as “Lawyers of the Year” have received particularly high ratings in the Tulsa County Bar Association surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.
Congratulations to Sam P. Daniel for receiving “Lawyer for the Year” in the practice of Family Law and to Kevin C. Coutant for being selected as “Lawyer for the Year” in the practice area of Real Estate.
Dates to Remember
CALENDAR OF NOTABLE EVENTS
June 14, 2009
Flag Day
June 21, 2009
Father’s Day
The first day of Summer
July 8, 2009
Commerce in Indian Country: Doing Business in Indian Country.
Doerner Saunders will be hosting a workshop at the Buffalo Run Casino located at 1000 Buffalo Run Blvd, Miami, Oklahoma. The workshop will cover the following current issues:
- Federal Stimulus / Tribal Bonding
- Sovereignty
- Section 8(a) Preferential Federal Contracts / Enterprise Zones
- Employment Issues
- Water Rights
- Healthcare
For more information, please contact Julee Thomas at jthomas@dsda.com, 918-591-5245, or click here.
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