Lessons in Ignorance: The Intersection of FMLA and Workers' Comp

I had the good fortune to attend a legal update hosted by the Atlanta Law firm of Drew Eckl & Farnham. The afternoon session on employment law was moderated by attorney Joe Chancey (a very well spoken attorney). Joe used a verison of the Socratic Method and posed several scenarios to the audience and solicited answers from them. He then had a panel attorney give the correct answer. The session was very good, but in listening to the answers that the HR people in the audience give I was dismayed at the lack of knowledge displayed. (Guess that is why they were there for education.) I of course knew all the correct answers. (He says with great humility!)

One scenario posed dealt with a workers' compensation situation and FMLA. There was a lot of confusion about this scenario. Many people did NOT know that you can run Family and Medical Leave time concurrently with someone being out of work for Workers' Comp. Not only can you do that, you SHOULD do that. Otherwise you run the risk of extending considerably the amount of time someone can be away from work. Many audience members thought that Workers' Comp time had to play out entirely before someone could be charged with FMLA time. One audience member was even unaware that FMLA could be used for your PERSONAL illness. She thought it was for family only. (I sighed heavily at that.)

This session pointed out that there is a great deal of lack of education or knowledge in many areas of HR, but particularly in the arena of intersection of FMLA, ADA and Workers' Compensation. I do not have the space here to cover that topic, other than the lesson mentioned above about running concurrent calendars on FMLA and Workers' Comp time. But if you have to deal with this it is critical you understand this. The mistakes can be very expensive. In fact I may develop an E-book on this topic. So stay tuned.

Ledbetter: The Perpetual Paperwork Act

On Thursday the 19th of March I attended a good seminar at at great venue. The seminar was hosted by the lawfirm of Drew Eckl & Farnham and was held at the Georgia Aquarium in Atlanta. One of the sessions was lead by a long time aquaintence, Joe Chancey. The format for this session was different any other session I have attended. Joe and his fellow attorneys used a scenario presentation that brought home the point they were trying to cover. The scenario that really caught my eye was the following:

• Ten years ago, my supervisor game me a bad review because I had complained about him sexually harassing me. I received no raise that year, as a result. He was fired shortly after that, and I've gotten good raises since then, but I don't think I've ever caught up. Can I do anything to recover the difference?

How do you answer this? What do you think? Well prior to the Lily Ledbetter Act the answer would have been "no." The statute of limitations for reporting the act of discrimination, 180 days, would have long been passed. But now, with the passage of the Ledbetter Fair Pay Act the answer would be different. As Joe and his collegues responded "Every new paycheck tainted by the discrimination is a new violation and restarts the statute of limitations clock." Thus our employee in the above scenario would now be able to go claim sex and pay discrimination and recover some of the money she feels she had missed out on. I say some, because the law only allows retroactive claims back to May 28, 2007.

To make a further point, if this woman had already retired, and was receiving a pension check based upon the amount of her income, then potentially she may still have a claim, since each pension check is a repeat of the act of discrimination and thus resets the statute of limitations clock.

What does this mean for HR? You:

• Must make sure that pay and promotional decisions are documented and are business related, including the business justification for having made that decision.


• May not be able to purge paperwork files for much longer periods of time. If you have someone receiving wage or pension payments in any way shape or form you must retain that paperwork in case someone decides to file a claim. Thus, my title of The Perpetual Paperwork Act


• You need to review any possible such situation you may currently have and see what paperwork or justification you have in the file.

So get to it. Get that work done now before someone files against you. Besides, we have more laws coming later in the year and if you don't do this now you may not have the time.