Count pregnancy leave toward FMLA?

Q: Can my employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

A: Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement, according to the Department of Labor.

Department of Labor FAQ - Vacation Pay

Q: How are vacation pay, sick pay, and holiday pay computed and when are they due?

A: The Fair Labor Standards Act (FLSA) does not require payment for time not worked, such as vacations, sick leave or holidays, federal or otherwise.

These benefits are a matter of agreement between an employer and an employee, or the employee's representative.

Source of FAQ: http://www.dol.gov/elaws/faq/esa/flsa/006.htm-->

Cut my retirement health benefits?

Q. I retired last year from a large auto dealership. I thought I was set for life with my retirement benefits. Now I'm hearing that they are considering cutting the retirement health benefits. Can my (former) boss really do that?

A. Maybe. Employees and retirees should know that private-sector employers are not required to promise retiree health benefits. Furthermore, when employers do offer retiree health benefits, nothing in federal law prevents them from cutting or eliminating those benefits--unless they have made a specific promise to maintain the benefits, according to the US Department of Labor. The key to understanding your retiree health benefits lies in the documents governing your plan. Check out the Summary Plan Description (SPD).

If your employer has reserved the right in the SPD and controlling plan document to change the terms of the plan, you may lose coverage at any time during your retirement.

But, if your employer made a clear promise that you will have specific health care benefits for a definite period of time or for life, and did not reserve the right to change the plan, you should be covered, according to the DOL. Find out more information here.

Bypass me for promotion because of pregnancy?

Q. I was bypassed for a major promotion because I am pregnant. Can my boss do this?

A. No. The law is very specific when it comes to pregnancy discrimination. Your employer cannot take away credit for previous work years or seniority because you go on maternity leave, according to the US Department of Labor. These cases can be difficult to prove, as your boss may try to give different reasons for the adverse employment action, so you may need legal counsel. Colorado employment lawyer Kim Ryan handles federal and state pregnancy discrimination claims in Colorado and can be reached at kim@ryanfirm.com.

Cancel health insurance during military service?

Q. I work for a health care organization and have been called to military active duty for the reserves. I will be deploying to Afghanistan in a few weeks. I talked to the HR assistant in my office, and he tells me he thinks they can discontinue my health insurance while I'm gone. Can my boss do that?

A. No, not if you request continuation of your health insurance.

An employer must continue health insurance for an employee on military duty, if requested, according to the US Department of Labor. The entitlement is for up to 18 months from the date the absence from employment begins.

But, for periods of service in excess of 30 days, the employee may be required to pay up to 102 percent of the total cost of the insurance.

Deny funeral leave?

Q. I lost my beloved brother recently, and we need to go out of state for his funeral. I work for a small mortgate company in Colorado, and my boss says we have no policy allowing funeral leave. He says I can't take even unpaid time to go. Can my boss do that?

A. Generally, yes. Funeral leave is a benefit offered by some employers, but is not legally required by federal law. According to the US Department of Labor, The Fair Labor Standards Act (FLSA) does not require payment for time not worked, including attending a funeral.

This type of benefit is generally a matter of agreement between an employer and an employee (or the employee's representative). If your boss has allowed other employees to take funeral leave, it is possible there might be some kind of discrimination claim, although it could be extremely difficult to prove. Be sure to check your employee handbook to verify your company's written position on funeral leave. If there is in fact a policy, you may have more to go on.

Fail to Pay Employment Taxes?

Q. It's tax time, and I just found out my boss failed to pay my employment taxes to the IRS. Can my boss do that?

A. Not really. Both employer and employee hold the responsibility for collecting and remitting withholding taxes to the IRS, according to the IRS. For the most part, the employer withholds these taxes on behalf of their employees, but in cases where an employer does not do this, or where an employee is self-employed, it is the responsibility of the employee to pay these withholding taxes.

Employer's Responsibility. Employers must report income and employment taxes withheld from their employees on an Employer's Quarterly Federal Tax Return (Form 941) and deposit these taxes in full to an authorized bank or financial institution pursuant to Federal Tax Deposit Requirements. Employers who do not comply with the employment tax laws may be subject to criminal and civil sanctions for willfully failing to pay employment taxes.

Employee's Responsibility. Employees who do not have taxes withheld nor remit them personally, are still liable for these taxes and may not qualify for Social Security, Medicare, or unemployment benefits.

According to the IRS, employees who are concerned that their employer is improperly withholding or failing to withhold federal income and employment taxes should report their employer by contacting the IRS at 1-800-829-1040.

Fire me for smoking?

Q. I work in Colorado as a secretary for a small real estate company. My boss saw me smoking outside a restaurant the other night, while I was off-duty. He told me that unless I quit smoking, he will fire me. Can my boss really do that?

A. It depends. If your company has more than 15 employees, your boss cannot fire you for smoking off duty, off premises, unless it is a bona fide occupational requirement that you not smoke, or unless it would create a conflict of interest for your employer. Based on the circumstances you describe, it probably would be difficult to say that not smoking is a bone fide occupational qualification or a conflict of interest, so if he fires you for this reason, and you can prove that's the reason, you might have a claim for lost wages and benefits. He can, however, impose smoking restrictions at work. Here's the Colorado law on lawful off duty conduct:

24-34-402.5. Unlawful prohibition of legal activities as a condition of employment.

Happy St. Patrick's Day!

Happy St. Patrick's Day from Kimberlie Ryan and
The Ryan Law Firm, LLC!

Impose Health Benefits Waiting Period on Return from Active Duty?

Q. My family and I had health coverage under my employer's group health plan before I was called on military active duty. We let this coverage lapse while I was away and took military health coverage. When I returned to my employer from active duty, my boss told me they might impose a waiting period to reenter my employer's health plan. Can my boss do that?

A. Generally, no. Under USERRA (Uniformed Services Employment and Reemployment Rights Act), you and your family should be able to reenter your employer's health plan, according to the US Department of Labor. In addition, your plan generally cannot impose a waiting period or other exclusion period if health coverage would have been provided were it not for military service. The only exception to USERRA's prohibition of exclusions is for an illness or injury determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, performance of service in the uniformed services, which is covered by the military health plan.

Monitor personal calls at work?

Q. I work long hard hours, and every once in a while I take a break to call my friends from work. My company just released a new employee handbook, and I was alarmed to see that the company says it can monitor my phone calls made in my office. Can my boss really do that?

A. Yes, under limited circumstances. Generally employers can monitor business phones in the ordinary course of business, especially if the company notifies employees in advance that all company property is subject to monitoring. However, once an employer realizes that a call is personal, the employer must immediately stop monitoring the call or risk possible claims for violating federal or state laws. It would not prevent employers from enforcing a policy restricting the number of personal calls from work, though.

Also, kudos to you for reading your employee handbook. That's a huge first step in knowing and protecting your rights at work!

Deny Leave for Domestic Violence?

Q. My boss denied my request for a couple of days of leave so I can get a restraining order against my ex-husband, who has been stalking me and threatening my safety. I work in Colorado for a private retail business. I am afraid for my safety and my boss won't let me take leave to get help. Can my boss do that?

A. Probably not. Under Colorado law, employers shall permit an employee to request or take up to three working days of leave from work in any twelve-month period, with or without pay, if the employee is the victim of domestic abuse, the victim of stalking, the victim of sexual assault, as these terms are defined by law. This section shall only apply if such employee is using the leave from work to protect himself or herself by:

1. Seeking a civil protection order to prevent domestic abuse;

2. Obtaining medical care or mental health counseling or both for himself or herself or for his or her children to address physical or psychological injuries resulting from the act of domestic abuse, stalking, or sexual assault or other crime involving domestic violence;

3. Making his or her home secure from the perpetrator of the act of domestic abuse, stalking, or sexual assault or other crime involving domestic violence or seeking new housing to escape said perpetrator; or

4) Seeking legal assistance to address issues arising from the act of domestic abuse, stalking, or sexual assault or other crime involving domestic violence and attending and preparing for court-related proceedings arising from said act or crime.

Your employer may require you to exhaust any and all annual or vacation leave, personal leave, and sick leave that may be available to you, unless the employer waives this requirement.

Also, this law prohibits employers from discharging or discriminating against any individual for exercising his or her rights under this section.

This law only applies to employers who employ fifty or more employees and to employees who have been employed with the employer for twelve months or more.

The full text of this Colorado law can be found here: 24-34-402.7. Unlawful action against employees seeking protection.

Allow sexual orientation harassment?

Q. I work in Colorado for a large hotel chain. Recently a co-worker has found out my sexual orientation and has started harassing me. I heard that federal law does not expressly protect workers based on sexual orientation. I don't want this to be an issue at work, and I prefer to keep my private life private. I think my boss knows about this harassment because she has been present when it has happened, but she has done nothing to stop it. Can my boss do that?

A. No. Although federal law does not yet directly protect workers from harassment based on sexual orientation, Colorado law does. Colorado law protects workers from sexual orientation discrimination and harassment and defines "sexual orientation" as a person's orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer's perception thereof. But the law does not consider the harassment to be illegal unless you first file a complaint with the appropriate authority at your workplace and the company fails initiate a reasonable investigation and take prompt remedial action if appropriate. Here's the Colorado law: 24-34-402. Discriminatory or unfair employment practices.

Deny Access to My Personnel File?

Q. I work for a Colorado company, and I have received letters of commendation from some of our clients saying what a great job I have done for them in my position. I have submitted them to HR to include in my personnel file. I have asked HR for a copy of my personnel file, and they are telling me that I am not allowed to have a copy of my own personnel file. I checked my employee handbook, and there is no policy on personnel files. HR won't budge and won't give me my file. Can my boss really do that?

A. In Colorado, yes. There is no federal or Colorado state law protecting employees' rights to the personnel files maintained by their private employers. Since these files contain information that could affect workers into the future, employees often would like to see what is in the file, whether it is correct, and when certain personnel actions have occurred. Some employers provide access to personnel files, usually by including something in the handbook, or even allowing employees to verbally request copies. But it is not required in Colorado.

Some states require some form of access, even if it is limited to a review without the opportunity to make copies. The on-line Business Owner's Toolkit provides an excellent summary of state laws on access to personnel files, as well as a recommendation that employers should "allow reasonable access to personnel files as part of a policy of treating employees with fundamental fairness."

Whether Colorado ultimately will pass a law protecting employees' right of access to their workplace information remains an open question. For now, you should keep home copies of all documents provided to you including commendations, discipline, reviews, contracts, handbooks, benefits, and any other documents relating to your employment and work performance.

Deny FMLA to Care for In-Law?

Q. My mother-in-law is ill with shingles, and I need to take leave from work to care for her. My HR manager says that although I would qualify for FMLA, I can't take it to care for an in-law. Can my boss do that?

A. Yes. The FMLA allows unpaid leave for eligible employees to care for an immediate family member with a serious health condition. An employee's spouse, children, and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law," according to the US Department of Labor. Under these circumstances, your employer can deny the FMLA leave without violating the FMLA.

Deny my COBRA coverage?

Q. My health coverage was terminated when my employer shut down and laid off all its workers. HR tells me there is no longer a health plan, but I understand the economic stimulus was supposed to help continue my health coverage through COBRA. Can my boss do that?

A. Possibly. Although the American Recovery and Reinvestment Act provides a premium-reduction to help qualified individuals pay for COBRA continuation health coverage, if there is no longer a health plan, there is often no COBRA coverage available. If related employer or successor employer sponsors a group health plan, it may be responsible for providing coverage to you, according to the US Department of Labor.

If you believe a related or successor employer may be responsible for providing you with COBRA coverage, you can contact the employer directly or EBSA toll free at 1.866.444.3272 to speak to a Department of Labor Benefits Advisor for assistance.

Require a Doctor's Note for FMLA Leave?

Q. I need to take family and medical leave to help my husband recover from cancer treatments. My employer has a policy for FMLA leave and HR tells me I am eligible, but they are requiring me to provide a certification from the doctor. I don't feel comfortable releasing medical records. Can my boss do that?

A. Yes and no. You do not need to provide medical records. An employer may require that you support the need for leave for a serious health condition of you or your immediate family with a certification issued by a health care provider. Your employer must allow you at least 15 calendar days to obtain the medical certification, according to the Department of Labor.

The Medical Certification form approved by the US Department of Labor can be found here. You can give it to your doctor to fill out.

Include a Non-Compete in the Severance?

Q. I am a Senior Vice President of marketing for a global corporation in a specialized field, and I have been offered a severance package to leave my position after a transition period of 6 months during a corporate restructuring. I have been on good terms with the company and would like to keep it that way. But I am concerned about a provision called, "Non-competition and non-solicitation" that says that I won't compete with the company or any of its affiliates, subsidiaries or other related companies for 2 years. This could effectively keep me from working in my field I hate to lose the severance, but they won't budge. Can they really do that?

A. It depends. Of course, you don't have to sign the agreement. But let's face it, it's hard to turn down a lump sum of money that could tide you over during your transition between jobs. If you do sign the agreement, it is possible, if not likely, that the non-compete provision could be enforced in Colorado under these circumstances. While Colorado law voids certain non-compete agreements, they can be enforceable if the scope, duration, and geographic locations are deemed reasonable, and if you qualify as executive or management personnel.

Never sign a non-compete provision in a severance thinking that you will be able to challenge it later. Get legal advice if you do not fully understand every provision in a severance agreement. Not only can you waive important legal rights in a severance agreement, you may be commiting to agreements like "non-competes" that may severely limit your future income. Since you have a good relationship with the company, you may be able to negotiate with them (either with legal counsel or on your own) to remove the provision, to narrow it, or to increase the amount of severance to account for the time you might be out of the market.

Age discrimination?

Q. I worked as a technical manager for a home improvement store for more than 22 years before I was discharged at age 50. My employment record included favorable performance reviews, bonuses, and salary increases. Everything changed when a 33-year old became the district service manager. He commented unfavorably on my performance, rated me lower on performance appraisals, placed me on a performance improvement plan, and set a deadline for me to identify and organize equipment in a storage area. I was then informed that I was being fired because I failed to meet the deadline and displayed a "lack of ownership" of my responsibilities. Approximately two months before firing me, when I expressed concern about additional responsibilities being assigned to technical managers, he replied, "Hell, you are old enough, you have been around long enough, you should handle this." I've lost my job now, can they really do this?

A. In a similar lawsuit, one court found that a jury could infer age bias under the circumstances you describe because it reflects the boss' awareness your age, not merely your experience or time with the company. If the district manager was directly involved in the decision to fire you, it is possible that a jury could infer from his statement that he was more impatient with you because of your age and held you to a different standard than your coworkers because of your age.

To determine if age was the motivating factor in the discipline and firing, there would be a comparison of treatment of you and similarly situated employees, so it would be helpful to know if other employees in your job position had been treated differently as far as job standards, reviews, performance improvement plans, and termination. This would be a highly fact dependent analysis.

Require English-Only at work?

Q. I work as a housekeeper for a hotel. The hotel has adopted a policy requiring employees to speak only English while in the workplace, including when speaking to coworkers during breaks or when making personal telephone calls. The hotel has placed Hispanic workers under close scrutiny to ensure compliance and has replaced workers who violate the rule with non-Hispanics. I am a native Spanish speaker, and I believe the policy discriminates against me. The hotel states that the rule was adopted to promote better employee relations and to help improve English skills. Can my boss really do this?

A. Under these circumstances, no. Especially if the hotel cannot produce evidence of poor employee relations due to communication in languages other than English. If proficient English skills are not required for any of the positions held by non-native English speakers, or if you can show that the hotel acted in a harassing manner, the English-only rule is likely to be found unlawful.

In some limited circumstances, the EEOC says business necessity could justify an English-only rule, such as for communications with customers, coworkers, or supervisors who only speak English, or for emergencies or other situations in which workers must speak a common language to promote safety. It may also be permissible for cooperative work assignments in which the English-only rule is needed to promote efficiency, or if an employee's job duties require communication with coworkers or customers, it could be permissible to enable a supervisor who only speaks English to monitor the performance of an employee. However even if a policy could be appropriate for some limited circumstances, it is never appropriate to enforce it in a harassing way.