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The Fmla Compendium, a Comprehensive Guide for Complying with the Amended Family & Medical Leave Act 2011-2012

The Fmla Compendium, a Comprehensive Guide for Complying with the Amended Family & Medical Leave Act 2011-2012

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The Fmla Compendium, a Comprehensive Guide for Complying with the Amended Family & Medical Leave Act 2011-2012

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330 página
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Publicado:
Sep 15, 2011
ISBN:
9781463440664
Formato:
Libro

Descripción

The FMLA Compendium is a comprehensive guide for complying with the Family and Medical Leave Act As Amended 2011-2012. When thinking about and addressing the impact of the FMLA on Human Resources and Business Management this much is clear: There is only one constant in the FMLA and that is.. It Never Stays The Same.

Court Interpretations alter our understanding of the law. Often the FMLA is amended. Many times its complex terminology and acompanying requirements are re-interpreted and revised. Sometimes these changes are made by the Courts, sometimes by the Congress, and sometimes by Bureaucrats. No matter what the source of these changes, what we know for certain is.. the FMLA does change and we have to comply with the law, changes and all.

The FMLA Compendium is designed and written to be the most reliable source, and a must have guide, for employers, human resources professionals; business consultants; service providers to employers; educators; executives; middle and first line managers and supervisors; and all others involved with managing "employment" in today's complex legal enviornment.
Editorial:
Publicado:
Sep 15, 2011
ISBN:
9781463440664
Formato:
Libro

Sobre el autor

Michael Murphy is a Professional Consultant with 30 + years of experience specializing in assisting business entities in all areas of compliance. The FMLA Compendium is Mike's third book on complying with the FMLA. Over the years Mike has accumulated vast experience with the FMLA as an author, as an HR professional, as a manager and supervisor, and as an Expert Witness in legal cases involving the FMLA. Educationally, Mike has an MS in Industrial/Organizational Psychology, and is the founder and principle officer of a consulting firm headquartered in Indianapolis Indiana.

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The Fmla Compendium, a Comprehensive Guide for Complying with the Amended Family & Medical Leave Act 2011-2012 - Terrence Michael Murphy

1-800-839-8640

© 2011 Terrance Michael Murphy. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

First published by AuthorHouse 09/09/2011

ISBN: 978-1-4634-4067-1 (sc)

ISBN: 978-1-4634-4066-4 (ebk)

Printed in the United States of America

Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

Certain stock imagery © Thinkstock.

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Contents

The FMLA Compendium:

The FMLA Compendium,—A Comprehensive Guide For Complying With The Amended Family & Medical Leave Act 2011-2012.

The FMLA Compendium, Section One: Part One

In Loco Parentis Clarified! DOL Wage and Hour Division (WHD) Administrator’s Interpretation No. 2010-3—June 22, 2010 Issued by DEPUTY ADMINISTRATOR NANCY J. LEPPINK. Below is an explanation and clarification of this administrative change to the FMLA.

The FMLA Compendium, Section Two

A Brief Review of How The FMLA Became Law.

Provided By Tracy Mallory.

The FMLA Compendium, Section Three

What Has Changed?

Provided By Tracy Mallory

The FMLA Compendium, Section Four

Why The Changes? Courtesy Of The D.O.L.

The FMLA Compendium, Section Five: Part One

Understanding The Family and Medical Leave Act As Amended, and The Military Family Leave Entitlements (MFLE).

Provided By Michael Murphy & Tracy Mallory.

FMLA Compendium: Section Five: Part Two

What You Must Know About Certifying A Request For FMLA Leave Because Of A Qualifying Exigency 29 CFR 825.309—Certification for leave taken because of a qualifying exigency. Section Number: 825.309 Section Name: Certification for leave taken because of a qualifying exigency. Provided By Mike Murphy.

The FMLA Compendium, Section Six

The Family and Medical Leave Act As Amended: Care Giver Leave Provided By Tracy Mallory.

The FMLA Compendium, Section Seven

A Review of Important Changes To The FMLA.

Courtesy Of The D.O.L.

The FMLA Compendium, Section Eight: Part One

A Review of Military Family Leave Entitlements (MFLE) & Employer Issues. Provided By Tracy Mallory.

The FMLA Compendium, Section Eight: Part Two

Everything You Must Know About MFLE & FMLA. Below Are FAQs—Q&A From The DOL. (Very Informative). Provided By Michael Murphy.

The FMLA Compendium, Section Nine

Review of Qualifying Exigency Leave: Requirements—Requests—Responses Provided By Tracy Mallory.

The FMLA Compendium, Section Ten

The Family and Medical Leave Act As Amended, Changes and Clarifications Provided By Mike Murphy.

The FMLA Compendium, Section Eleven

The Family and Medical Leave Act As Amended Other Changes—Clarifications and Definitions

Provided By Mike Murphy.

The FMLA Compendium, Section Twelve

The FMLA Now! An Overview.

Provided By Mike Murphy

The FMLA Compendium, Section Thirteen

FMLA Fact Sheet Provided By Tracy Mallory.

The FMLA Compendium, Section 13: U.S. Department of Labor: Wage and Hour Division Fact Sheet #28 The Family and Medical Leave Act of 1993. Below you will find DOL’s Fact Sheet #28 on the FMLA, for your review and information.

The FMLA Compendium, Section Fourteen.

A Glossary of FMLA Terminology and Related Terms: Provided By Mike Murphy

The FMLA Compendium, Section Fifteen

FMLA Special Rules For Returning Reservists (USERRA). Provided by Tracy Mallory

The FMLA Compendium, Section Sixteen

The Effects Of The Uniformed Services Employment And Reemployment Rights Act On Leave Eligibility Under The Family and Medical Leave Act—USERRA-FMLA-FAQs.

The FMLA Compendium, Section Seventeen

What You Must Understand About The Definition Of A Serious Health Condition . . . The Seven Day Rule and a Chronic Serious Health Condition.

Provided By Mike Murphy.

The FMLA Compendium. Section Eighteen

What You Must Know About Having The Employee On FMLA Leave, Periodically Affirm Their Intent To Return To Work Upon Completion Of Their FMLA Leave.

The FMLA Compendium, Section Nineteen

What You Must Know About Failure Of The Employee Requesting FMLA Leave To Provide Certification.

Provided By Mike Murphy.

The FMLA Compendium, Section Twenty

What You Must Know About Recertification of An Employee’s Own Serious Health Condition.

Provided By Mike Murphy.

The FMLA Compendium, Section Twenty-One

Everything You Must Know About Fitness-For-Duty Certifications. Provided By Mike Murphy.

The FMLA Compendium, Section Twenty-Two

Overlap Between The ADAAA and the FMLA; and State Worker’s Compensation Laws. Provided By Mike & Tracy.

The FMLA Compendium, Section Twenty Three

Overlap Between The ADAAA and the FMLA and State Worker’s Compensation Laws.

The FMLA Compendium, Section Twenty-Four

Clarifying How To Deal With An Employee On FMLA Who Fails To Pay His/Her Share of Health Plan

Premium Payments.

The FMLA Compendium, Section Twenty-Five

What You Must Know About The Recovery of Employer Paid Benefit Costs. 29 CFR 825.213—

The FMLA Compendium, Section Twenty-Six

What You Must Know About An Equivalent Position

29 CFR 825.215—Equivalent position.

The FMLA Compendium: Section Twenty-Seven

What You Must Know About FMLA Leave And Time Worked On-Call. Provided By Michael Murphy.

The FMLA Compendium: Section Twenty-Eight

Sample FMLA Policy: COMPLIANCE WITH THE FEDERAL FAMILY AND MEDICAL LEAVE ACT

Provided By: Mike Murphy

The FMLA Compendium: Section Twenty-Nine

Employee Rights and Responsibilities Under The Family and Medical Leave Act.

The FMLA Compendium: Section Thirty

Seccion Threnty: Employee Rights and Responsibilities Under The Family and Medical Leave Act, En Espanol. Derechos Básicos de Ausencia.

The FMLA Compendium: Section Thirty One

Sample Moonlighting Policy XYZ Company.

Provided By Mike Murphy and Tracy Mallory.

The FMLA Compendium: Section Thirty-Two: Part One

Every Thing You Must Know About Certification

For Leave Taken To Care For A Covered Service Member (Military Caregiver Leave).

The FMLA Compendium, Section Thirty-Two: Part Two

29 CFR 825.309—Everything You Must Know

About Certification For Leave Taken Because

Of A Qualifying Exigency.

The FMLA Compendium: Section Thirty-Three

The Employer’s Checklist For FMLA Leave Request

And Response.

The FMLA Compendium, Section Thirty-Four

A Review Of Significant Legal Cases Brought Under The FMLA And How The Courts Ruled.

Provided By Michael Murphy.

The FMLA Compendium, Section Thirty-Five

Another Legal Case For Your Enlightenment!!

The FMLA Compendium, Section Thirty-Six

FMLA Intermittent Leave and Job Performance Goals . . . Walking the Tightrope.

The FMLA Compendium, Section Thirty Seven

D.O.L. U.S. Department of Labor

Employment Standards Administration Wage and Hour Division Washington, D.C. 20210.

The FMLA Compendium, Section Thirty Eight

D.O.L. U.S. Department of Labor

Employment Standards Administration Wage and Hour Division Washington, D.C. 20210. November 17, 2005.

The FMLA Compendium, Section Thirty-Nine

D.O.L. U.S. Department of Labor

Employment Standards Administration Wage and Hour Division Washington, D.C. 20210, October 5, 2006 FMLA2006-6-A. Issue: Eligibility For FMLA Leave For Teachers Over Summer Vacation And Is Dental/Vision Plan A Group Health Plan As Defined IN The FMLA?

The FMLA Compendium: Section Forty

D.O.L. Provided Forms And Other Information For Complying With The Family and Medical Leave Act As Amended. Provided By Tracy Mallory.

With Humility And Gratitude This Book Is Dedicated To The Fond Memories I Have Of The Attorneys And Staff At . . . .

Dann Pecar Newman & Klienman.

"Just What You Would Expect A

Law Firm To Be."

Michael Murphy

The FMLA Compendium:

A Comprehensive Guide For Complying With The Amended

Family And Medical Leave Act: 2011-2012

When Looking At The Impact of The FMLA On Human Resources and Business Management This Much Is Clear: There Is One Constant In The FMLA

It Never Stays The Same.

Court Interpretations Alter Our Understanding of This Law. Often, The FMLA is Amended. Many Times Its Complex Terms And Requirements Are Re-Interpreted, And Revised. This Is Done Sometimes, By The Courts, and Sometimes By The Congress, and Sometimes by Bureaucrats. No Matter The SourceWhat We Know For Sure . . .

The FMLA Does Change And We Have To Comply.

The FMLA Compendium: Is Designed And Written To Be:

The Most Reliable Source, AND A Must Have Guide For Employers; Human Resources Professionals; Business Professionals; Their Legal Counsel; Employment Consultants; Service Providers To Employers; Educators; Executives; Middle Managers; First Line Managers and Supervisors; And All Others Involved With Managing Employment In Today’s Complex Legal Environment!!

The FMLA Compendium,—A Comprehensive Guide For Complying With The Amended Family & Medical Leave Act 2011-2012.

a.   Preamble: First and foremost allow us to express out thanks to you for purchasing The FMLA Compendium. The FMLA Compendium employs a comprehensive approach to addressing the various and multiple, complex issues presented to employers in their efforts to comply with the FMLA. Our intent is to explain; provide guidance; answer questions, and provide you with a ready source of reliable FMLA information. Our hope is, by so doing, the FMLA becomes a little less intimidating, and a lot easier to understand and comply. Tracy and I respect, value, and appreciate the confidence you have placed in us.

b.   About the Compendium: The FMLA Compendium, is not like any other book or guide on the FMLA with which you may be familiar. It is a Compendium (an encyclopedia if you will) of all things FMLA. We have tried to be thorough and comprehensive. For example, we have provided separate FAQ sections. One addressing general FMLA issues. One specifically addressing Military Family Leave Entitlements, (with focus on Qualifying Exigency Leave and Care Giver Leave), and another section providing answers to your questions concerning the FMLA and USERRA, how one affects the other, and how you have to do to live with both laws.

c.   We have paid particular attention to the overlap between FMLA and ADAAA and Worker’s Compensation Law. We have included a section on the overlap between these three laws addressing issues in common with the FMLA, the ADAAA and Worker’s Compensation. Additionally we addressed the sudden mysterious appearance of a new definition and interpretation of the terms, In Loco Parentis and Son and Daughter. In summary, The FMLA Compendium is exactly what the name implies. A one stop source for relevant and accurate information for all things FMLA. We hope you find it useful. We found it challenging, to research, write, and publish.

d.   We plan to update the Compendium on a quarterly basis. The updates will be available to you at no charge through our web site. To view the updates and download them please go to tmmenterprises.com and click on the FMLA updates link. Feel free to download what you need, to stay in full compliance with the FMLA.

e.   Throughout this undertaking our aim has been to explain and present the material in a manner designed to support learning and improve understanding. Our goal is to provide you with what you need to comply with the FMLA. You will judge how well we did.

f.   Fair Warning: The revised and amended FMLA is very complex. Full understanding will require significant effort on the part of each reader. When in Doubt . . . Get Legal Counsel as to how to proceed. (The Preceding Statement Is The Disclaimer!!) Throughout the FMLA Compendium, we have stated and emphasized the need for good legal counsel to help and support the employer’s FMLA/MFLE compliance efforts. We restate that advice here. As you go forward with your compliance efforts, if you are not sure, if you are uncertain, please, get good competent legal advice and counsel. The FMLA Compendium is not a substitute for legal counsel and advice. Because these laws are complex and because situations vary, one from another, Michael Murphy and Tracy Mallory, both contributors to The FMLA Compendium, cannot, and do not, assume any responsibility for your actions based on what we have provided in The FMLA Compendium.

g.   About The Authors. This is the third book on the FMLA with participation by Michael Murphy, (MS I/O Psychology Purdue University at Indianapolis Indiana), as the Primary Author. Much of Mike’s job experience has been in Hands-on business management coupled with significant emphasis on Human Resources. Since completing his formal education Mike has provided services to employers throughout the United States on management and human resources issues. In addition to his work as a human resources and management consultant, Mike has co-authored several other books on HR related issues.

h.   Additionally Mike has provided Expert Witness support on a number of employment related legal challenges. (Yes. That includes the FMLA). Currently Mike serves as President and founder of TMM Enterprises Inc, a Business and Human Resources Consulting firm, with offices in Indianapolis Indiana. Michael can be reached by e-mail at terrance.murphy547@gmail.com Yes this means that Mike’s first name is Terrance but he prefers to be called by his middle name.

Mike is also the principal author of:

1)   Understanding HIPAA: The Employer’s Guide to Compliance. 2003.

2)   The Family and Medical Leave Act: A Dozen Years of Confusion—A Compliance Guide for Employers. 2005.

3)   Understanding the Fair Labor Standards Act—A Compliance Guide for Employers. 2006.

4)   The New HIPAA Guide for 2010 Your Resource Guide to the New Security & Privacy Requirements. 2010. The HIPAA Guide To Compliance is currently being revised and will be available in the up dated version Fall of 2011.

5)   The FMLA Compendium,—A Comprehensive Guide For Complying With The Amended Family And Medical Leave Act. 2011 (In Press).

k.   Remember, if you are a covered employer under the FMLA; MFLE; USERRA; ADAAA; or Worker’s Compensation: Non-compliance is not an option. These are the laws of the land. Our advice is always, and we mean ALWAYS, make a genuine good faith effort to comply. We believe The FMLA Compendium, will simplify your FMLA compliance process and make it more understandable for you.

l.   Another writer joins in the process. In an effort to keep up with the demands on my time, I needed to bring on board another writer to assist me in the preparation of this most recent book on the FMLA. I am pleased to inform you that Tracy Mallory has joined with me, and worked with me as a contributor to The FMLA Compendium.

The FMLA Compendium, Section One: Part One

 In Loco Parentis Clarified! DOL Wage and Hour Division (WHD) Administrator’s Interpretation No. 2010-3—June 22, 2010 Issued by DEPUTY ADMINISTRATOR NANCY J. LEPPINK. Below is an explanation and clarification of this administrative change to the FMLA.

Subject: Clarification of the definition of son or daughter under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing in loco parentis to a child.

1.   The Administrator has determined: that additional clarification is needed on the definition of son or daughter as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. Based on the Wage and Hour Division’s experience in administering the FMLA, it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship. The Administrator is issuing this interpretation to provide needed guidance on this important area of law.

1.1   Background: The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, [b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter, [b]ecause of the placement of a son or daughter with the employee for adoption or foster care, and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)—(C); 29 C.F.R. § 825.200. The FMLA defines a son or daughter as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability." 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.[1]

1.2   The Wage and Hour Division has received several requests for additional guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.

1.3    The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2612(a)(1)(A)—(C). The definition of son or daughter under the FMLA includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.80

1.4   Congress intended the definition of son or daughter to reflect "the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults." See S. Rep. No. 103-3, at 22. Congress stated that the definition was intended to be construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to [FMLA] leave even if the employee does not have a biological or legal relationship to that child." Id.

1.5   "In loco parentis is commonly understood to refer to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties." Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted). "The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties."

1.6   Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors. Courts have enumerated factors to be considered in determining in loco parentis status; these factors include the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.

1.7   The FMLA regulations define "in

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