In the latest Weekly Wright Report:

• • HR Mashup – read now

HR Mashup

Employers may be interested in a few legal developments that have recently occurred. First, as a new school year dawns, the Department of Labor (DOL) has released a new opinion letter regarding the Family and Medical Leave Act (FMLA)’s applicability to parents attending certain school meetings. In this new opinion, the DOL has affirmed that employees may use FMLA leave to attend school meetings to discuss their disabled child’s Individualized Education Program (IEP). Public schools must develop IEPs for students receiving special education and related services. Effective IEPs include the input from multiple individuals; including parents, teachers, administrators, and related services. In these circumstances, there are often regular meetings to review the child’s educational and medical needs and progress.

According to the DOL’s opinion letter, since the child is considered to have a serious health condition certified by a health care provider, the parent may use FMLA leave to attend IEP meetings in order to discuss the child’s educational and special medical needs. This holds true even when no doctor is in attendance. Attendance is “essential to [the employee’s] ability to provide appropriate physical or psychological care” to the child.

Second, the DOL also recently issued an opinion regarding the rounding of an employee’s hours. The DOL concluded that the FLSA allows rounding as long as it “will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” 29 C.F.R. § 785.48(b). The DOL accepts neutral rounding in any one of the following increments: the nearest five minutes, one-tenth of an hour, one-quarter of an hour, or one one-half hour.

Finally, those of us involved in helping clients resolve unpaid wages know, the amount of time an employer has to look back for statute of limitations period is critical. The potential class of employees and damages can increase dramatically when an additional year of damages gets included in the potential loss calculations. Under the Fair Labor Standards Act (FLSA), the issue of “willfulness” is key because such a finding extends the statute of limitations from two years to three. Although what is considered “willful” is not that clear, a federal appellate court reminds employers that it is not that hard to ring that bell.

In Stone et al. v. Troy Construction LLC, the Third Circuit Court of Appeals reversed the lower court which found there were insufficient facts to demonstrate willfulness, limiting the statute of limitations to only two years. The appellate court explained that “the district court was evidently looking for something egregious. Supreme Court case law and our own precedent counsel against a standard for willfulness that requires a showing of egregiousness.” The proper standard for finding “willfulness” has been one of only “reckless disregard,” i.e., the employer knew that its wage practices were illegal but nevertheless continued to engage in these practices. Any evidence showing knowledge by the employer (seminars, audits, past suits, etc. as well as willful ignorance under the right circumstances) could lead to a finding of willfulness.

If you need assistance in reviewing any of your employment policies or pay practices, please reach out to the Employment and Labor attorneys at WC&S.

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