FMLA, FLSA Lawsuits Surge, Exposing Employers to Large Awards

The number of employee lawsuits against employers for Family Medical Leave Act (FMLA) and wage and hour violations has skyrocketed in the last five years and your firm could be the next target even for a small misstep, which can be costly.
The Department of Labor has increased its budget and the number of investigators pursuing employers who violate the Fair Labor Standards Act (FLSA), which covers wage and hour complaints, including exempt and non-exempt employee violations, overtime violations and similar issues.
Employment law attorneys say that the surge in FMLA complaints is a result of more people knowing about the law as the DOL has expanded its reach and publicized the act in press releases about actions it has taken against various employers.
Also, they say, the term “serious health condition” is broadly defined, making it easy for employees to satisfy.
Here we take a look at the problem and what you can do to avoid being sued.

Wage and hour lawsuits are typically filed under the Fair Labor Standards Act, and they’ve been creeping up, a trend employment lawyers attribute to more people working from home and technology, which has blurred the lines between when workers are on or off the clock.

FLSA cases filed:
Fiscal 2015: 8,160
Fiscal 2014: 7,500

Notable FLSA settlements from last decade:
Walgreens – $23 million
Wells Fargo – $15 million
Roto-Rooter – $14.2 million

What you need to know:
• There are four main areas you need to be concerned with: minimum wage, overtime pay, record-keeping and youth employment.
• Make sure you properly classify your employees as non-exempt or exempt (the minimum salary to be classified as exempt is currently $47,476 a year).
• There are six exempt positions: executive, administrative, learned professional, creative professional, computer professional and outside sales staff.
• Track exempt employees’ hours just in case.
• Compute overtime properly.
• Telecommuting can expose you to FLSA liability when employees work or send work-related e-mails outside normal working hours.
• Employees must be compensated for time spent answering e-mails during off hours, including vacation.

Qualifying reasons for FMLA leave, according to the DOL, include: birth of a child; a serious health condition that makes the employee unable to perform their work functions; and to care for a spouse, child or parent with a serious health condition.
The rapid rise in FMLA lawsuits is a direct result of the law becoming increasingly complex for employers to navigate, and its increased enforcement. The number of FMLA cases filed last year hit 1,108, almost a fourfold increase from the 280 that were filed in 2012.

FLMA cases filed:
2014: 1,108
2013: 877

Notable settlements or awards:
Staples Inc. – $275,000
Solvay Chemical – $1.5 million
Christ Hospital and Medical Center – $11.6 million

What you need to know
• Post and distribute information about employees’ FMLA rights and include it in your employee handbook.
• Don’t retaliate against someone seeking FMLA leave.
• Develop an internal process for employees to use when applying for FMLA leave.
• Make sure managers and supervisors apply your FMLA process consistently.
• Be careful to balance any pushback against the employee, but you have the right to ask for more information from the employee and their doctor. And you can monitor the use of FMLA days.