FMLA abuse: A lesson in standing up to it

Handling intermittent FMLA leave can be intimidating. Here’s a case that shows it pays to act decisively when you suspect the employee-centric regs are being abused.  

The story revolves around Mingyi Rowe, a flight attendant for United Airlines. She and her husband — also a United flight attendant — live in Colorado, but Mingyi’s parents and other relatives live in Taiwan.

Rowe suffered from migraine headaches and had used intermittent FMLA leave for several years — more specifically, on 78 different occasions between 2007 and 2011. All her absences were approved by United.

United allows employees to fly for free or at a reduced cost.

Rowe and her husband planned a multi-week trip to visit her family in Taiwan. United approved their vacation from March 2 through March 27, 2011.

In January and February of that year, the couple searched on United’s internal computer system to determine which flights were likely to have seats available. But they were looking for flights leaving Feb. 22 to Feb. 25 — as was later revealed through a search of the United website.

Ah, the old ‘sick uncle’ trick

Later, Rowe testified that she had received a call from her family in Taipei on the evening of Feb. 23, saying that an uncle had been taken to the hospital and was close to death. Rowe and her husband flew out of Denver for Taiwan Feb. 24.

There was another small problem: Mingyi was scheduled work a three-day standby shift beginning Feb. 27. But she said she developed a migraine on the flight to Taiwan, and called in sick Feb. 27 under pre-approved FMLA leave.

Later, when her supervisors questioned her about the absence, Mingyi said she had originally planned to return for her shift, taking a flight Feb. 26 — less than 12 hours after arriving in Taipei. Unfortunately, she hadn’t bothered to put herself on the standby list for the Feb. 26 flight.

United terminated Rowe on grounds that she had been dishonest, “falsely claim[ing] illness as the reason for her absence from work.”

An ‘honest belief’

Rowe sued, claiming she’d been fired in violation of the FMLA and the ADA.

The judge was not impressed. The undisputed evidence, the court said, showed that Rowe was discharged because [her bosses] did not believe her claim that she planned to return to Denver for her Feb. 27 shift when she left for Taipei on Feb. 24.

That disbelief was bolstered by the facts:

  • The flight Rowe said she intended to take out of Taipei on February 26 would have required her to leave Taipei less than 12 hours after she arrived
  • Rowe and her husband performed multiple computer searches for flights to and from Taipei for several weeks prior to their departure and up until the day they left, but neither she nor her husband ever searched for flights that would have returned Rowe to Denver for her three-day shift, and
  • Rowe never sought to place herself on a flight “standby” list for a flight that would have returned her to Denver for her shift.

In addition, the judge said it was not the court’s role to determine whether the employer’s “proffered reasons [for terminating an employee] were wise, fair[,] or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.”

And United clearly believed in good faith that Rowe was being dishonest in her use of her migraines to dodge coming in to work, the court said.

Case dismissed.

Cite: Rowe v. United Airlines, Inc.

DOL quietly drops big news on new overtime rules

The DOL’s been pretty quiet about what it’s doing behind the scenes about changing the overtime exemption rules and salary threshold. But it has finally spoken. 

This week, at the American Bar Association’s Labor and Employment Law conference in Philadelphia, the Solicitor of Labor M. Patricia Smith shared some insider info that elicited “gasps” from the audience, according to a report by The Wall Street Journal.

Smith said during a panel discussion that the finalized changes to the FLSA’s overtime eligibility rules likely won’t be issued until late 2016. From that juicy piece of info, one could surmise that they won’t take effect until 2017.

This is huge news for the business community, which hasn’t been shy about expressing outrage over the proposed overtime rule changes the DOL issued this summer. The delay means employers have more time to prepare, even though they don’t know what the finalized rules will look like yet.

The period during which the public can comment on the proposed rules ended Sept. 4, and the DOL received roughly 270,000 comments during that period. That’s about three times the amount of comments the agency received when it last updated the overtime rules back in 2004. About 50,000 comments came in during the last week alone.

But despite that last-minute outpouring of commentary, the DOL announced it wouldn’t extend the comment period. It said the standard 60-day comment period — combined with its outreach efforts prior to the proposal being published — was enough to “produce a quality regulation.”

So all signs pointed to the final rules being issued sometime in early 2016. But Smith cited the amount of comments it received and the complexity of the law as the two main reasons the agency’s looking at a later date for releasing the rules.

What we do know

While the DOL’s been mum on whether or not it’ll make significant changes to its proposed rules, we do know a few things for certain about what’ll be in the final rules.

For starters:

  • The minimum salary threshold will rise … significantly. The current threshold a worker must hit to be overtime-exempt is $23,660. The proposed rules seek an increase to $50,440. And while it may not climb quite that high, it will climb — likely to at least $40,000 or so.
  • The threshold will automatically increase. For the first time ever, the salary threshold will be tied to an automatic-escalator, so it can keep pace with inflation — and so major legislative changes aren’t needed every time lawmakers want it to increase.
  • The DOL is looking at making changes to the duties tests. The DOL hasn’t suggested changing the executive, administrative, professional, computer or outside sales duties tests (see them here) yet. But the agency did specifically ask for comments on whether the tests should be changed and whether they’re working to screen out employees who are not bona fide white collar exempt employees.

The X factor

There is one X factor in all of this that no one has mentioned yet: the effect the upcoming presidential election will have on the rulemaking process.

Originally, the DOL had set a tentative deadline of November 2014 for issuing the proposed rules. Then, they didn’t come out until more than six months after that soft deadline had passed.

Then, it was expected the finalized rules would be issued sometime in early 2016. Now, that’s clearly not what’s going to happen. All of these delays have butted the rulemaking process right up against the presidential election.

This begs the question: Would the Obama administration really issue a highly controversial set of finalized rules just prior to the election?

After all, business groups, employers and even a former DOL administrator (who oversaw the last rule changes) have staunchly opposed the proposed rule changes, saying they’ll stifle companies’ ability to operate, drive prices up and/or actually hurt the very people the rules are trying to help. This could potentially give the GOP more ammunition to use on the campaign battlefield.

On the other hand, if public opinion polls reveal that the rule changes are something the voting public wants and views as beneficial, the Democrats may try to push the final rules through prior to the election to give their political campaigns a shot in the arm.

Time will tell which scenario will play out — but a lot of it likely depends on how Democrats feel the voting public will react to the rule changes once they’re finalized.

One final thing to consider: Since the entire rulemaking effort was spurred by the Obama administration, and heavily backed by Democrats, it’s entirely possible any finalized rule changes will be repealed should a Republican win the White House next fall.

2 benefits never to put on the chopping block

With healthcare costs continuing to skyrocket — along with fears of triggering the “Cadillac” tax in 2018 — employers are looking into what kinds of benefits they can cut. 

But there are two benefits that should remain a last resort for cuts: dental and vision benefits.

Three reasons for this:

  • When structured correctly (as stand-alone options) key ACA regulations don’t apply to these benefits. In other words, the coverage won’t count toward your Cadillac tax thresholds. Remember, the 40% excise tax will kick in for any health plans for which premiums exceed $10,200 for individuals and $27,500 for family coverage. If you create dental and vision plans separately from health plans, you can avoid having their premiums count toward those thresholds.
  • Routine eye and dental exams can be instrumental in diagnosing underlying health issues before they spiral into long-term problems. Examples: Vision checkups can help employees detect diabetes or hypertension earlier (and more cheaply) than they would through a primary care physician. The same is true of dental check-ups, which can often help uncover early warning signs of heart disease.
  • When employees have vision and dental coverage, emergency room visits for such problems can be significantly reduced, saving health plans a ton on ER visits.

What workers want

Another reason dental and vision should become (or remain) a core part of your benefits package: Employees’ interest in these offerings is increasing.

Case in point: A 2014 SHRM study found that 83% of the workers who were offered vision coverage enrolled in the plan, compared to the 78% who did so the prior year.

A separate study by MetLife also found that 76% of employees would be interested in voluntary dental coverage if it was offered by their employer.