FMLA leave, document shredding, unauthorized work hours

HR Magazine, August, 2005 by Dyane Holt, Saundra Jackson, Naomi Cossack

Q An employee returning from military leave has requested leave under the Family and Medical Leave Act (FMLA). How should the eligibility requirement be calculated?

A In administering leave under the FMLA, a covered employer's first obligation is to determine whether an employee is eligible for FMLA. To be eligible under the federal law, an employee has to have worked for the employer for at least 12 months and for at least 1,250 hours during the preceding 12 months.

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Under provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA), service members completing their tour(s) of duty and re-employed under the provisions of USERRA are entitled to all benefits of employment that they would have obtained if they had been continuously employed. In other words, the service member's eligibility rests on whether the criteria would have been met if the military service had not been performed.

So how would you calculate whether the employee meets the 12-month FMLA requirement? Under USERRA, each month served in the military counts as a month actively employed by the employer for the purpose of determining eligibility. As for hours of service, credit must be given for any actual hours worked in addition to hours that would have been worked while military service was being performed.

For example, an employee worked for the employer for two months and was called to active duty. The employee served a tour of duty for 11 months and was re-employed with the employer. After returning for one month, the employee requested job-protected leave under FMLA. In calculating the 12 months of active employment, the employer determined that the employee had worked a total of three months and also was entitled to 11 months' credit for the military service. With that total of 14 months, the employee met the service requirement.

Additionally, the employer would determine whether or not the employee had met the hours-of-service requirement in the preceding 12-month period. Crediting the hours worked, based on a 40-hour workweek, the employee would have worked at least 1,250 hours in the preceding 12-month period.

--DH

Q Are employers required to shred paperwork that contains personal information?

A Yes. Under a federal requirement that took effect June 1, all employers must shred any document that contains personal information derived from a consumer report. Personal information could be a telephone number, address, Social Security number, etc.

The requirement comes from the federal Fair and Accurate Credit Transactions (FACT) Act, which was passed in December 2003. The FACT law requires that "any person that maintains or otherwise possesses consumer information, or any compilation of consumer information, for a business purpose, properly dispose of any such information or compilation," by either shredding or burning or smashing or wiping all paper and computer disks that contain such personal information.

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The aim is to protect the public from identity theft, which sometimes is a result of the theft of employees' personal information from an employer's files. The information may come from the employer's paperwork as well as its computer database systems. Employers have a duty to restrict access to this data as well as properly dispose of the information. Guidelines should be established to maintain confidentiality and place restrictions on this information. The guidelines also should contain provisions for temporary employees and contract employees.

Failure to comply with the new regulations could result in several different types of penalties:

* Civil liability. Employers could be made to pay up to $1,000 per employee in statutory damages. Employees could receive actual damages if their identities are stolen as a result of the company's failure to protect the information.

* Class-action lawsuit. Employers could face a class-action lawsuit if many employees are affected.

* Federal and state fines. Federal fines up to $2,500 and state fines up to $1,000 per violation can be assessed.

For more information on the FACT Act's document disposal requirements, see the Federal Trade Commission's release at www.ftc.gov/opa/2005/06/disposal.htm.> --SJ

Q We have employees who regularly work additional hours without obtaining prior permission from their supervisor. Can we implement a policy stating that employees who work unauthorized additional hours will not be paid for those extra hours?

A No. According to Section 785.11 of the Fair Labor Standards Act (FLSA) regulations, "Work not requested but [allowed] or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, and prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time."