Whether the Family & Medical Leave Act applies to tribes is an open question with an argument that it applies and an argument it does not apply.  Many tribal employers provide job protected leave which is similar to or the same as the FMLA.  The federal Department of Labor enforces the FMLA and its work includes the publication of forms frequently used by employers to comply with the FMLA.  Those forms just changed and I [...]

Will the recent U.S. Supreme Court decisions impact tribal employers?

Yes. Let's discuss three United States Supreme Court decisions which generated lots of press and may have an impact on your work as a tribal employer. Same Sex Marriage In United States v. Windsor the Supreme Court struck down or invalidated a portion of the Defense of Marriage Act.  DOMA declared that marriage for federal government purposes was a union between a man and a woman.  The Supreme Court ruled that a portion of [...]

Managing FMLA

Whether the Family & Medical Leave Act applies to tribal employers is an open question, but if a tribal employer applies the law, or adopts a law or policy which is similar to the FMLA, here are some management recommendations from FMLA Insights the blog authored by Jeff Nowak. Under the FMLA, employees are not required to specific words in requesting job protected leave, but instead the law requires employees to provide sufficient information for [...]

FMLA Recommendations

I like a blog called FMLA Insights published by the law firm Franczek Redelet and a recent post included recommendations for reviewing an employer's FMLA practices. Some of the following is based on recommendations from that blog. Employers should evaluate whether to follow the FMLA Since there is an argument that the FMLA applies to tribal employers and an argument it does not, whether the FMLA applies to tribal employers is an open question.  This [...]

What’s up with the FMLA?

The Family and Medical Leave Act is a difficult law to apply for any employer and the complexity increases for tribal employers.  There is more complexity for tribal employers for at least two reasons.  First, whether the FMLA applies to tribal employers is an open question. There is an argument the FMLA applies and there is an argument the FMLA does not apply.  Second the definition of family in the FMLA is more restrictive [...]

Controlling FMLA Abuse

Most employees using the myriad benefits of the Family & Medical Leave Act are honest, deserving and exercising good faith.  On the other hand, some employees are abusing FMLA.  Are there some techniques tribal employers can implement to minimize FMLA abuse by those employees who may be tempted to cut some corners? Yes. Permission Get employees to complete a leave request for any and all kinds of leave requested. Employees can provide verbal notice [...]

Should Employees Work While Out on FMLA?

No. If tribal employers follow the Family & Medical Leave Act (FMLA) or meet its minimum standards, does it violate the law if an employee is working while out on job protected leave?  The law does not explicitly prohibit employees working while out on job protected leave, but the employee could argue that the employer, overtly or not, expected the employee to continue to perform some work.  From there the employee will argue that [...]

Do employees lose ground when they take time off for childbirth?

When female employees take time off to recover from giving birth to a child and bonding with the newborn, is there potential liability if the employee does not receive a bonus or is penalized for failing to be as productive as other employees?  I have at least three lines of thought in response to this question.  First, beyond what the law requires, tribal employers should take the steps necessary to ensure that policies and practices reduce [...]

Does the FMLA extend job protected leave for the care of an employee’s adult child?

Under a recent Department of Labor interpretation of the Family and Medical Leave Act, the DOL interpreted the law to provide job protected leave to employees for the care of the employee's adult child.  Whether the FMLA applies to tribal employers is an open question, but if it does, the circumstances giving cause for leave is an important aspect of the law. The FMLA entitles an eligible employee to job protected leave to care [...]