Q & A FLMA Leave Limitations

01-Oct-2016

Question Corner

FLMA Leave Limitations

By Jason R. Mau

Q: One of our employees recently learned her child was molested by her former boyfriend. He has been arrested in another county, and she will need to be off intermittently to attend hearings and the like. Although the leave wouldn’t specifically be to care for the child or for counseling/therapy appointments, could we consider this as protected leave under the Family and Medical Leave Act (FMLA)?

A: Undoubtedly this is a terrible situation, however, the attendance of hearings is not a qualifying event for leave under the FMLA, and thus the FMLA will not provide protection for your employee under these circumstances.  On the other hand, care for the child or accompanying the child at the counseling and therapy appointments could qualify for leave.  Qualifying circumstances for leave under the FMLA include the care of a child with a serious health condition.  A serious health condition includes illness, injuries, or impairments requiring inpatient care or the continuing treatment by a health care provider.  Court hearings are not considered part of the child’s health care treatment, so it cannot qualify for the leave.

Q: May we keep background check results filed in employees’ regular personnel files? If so, should the results be removed before an employee or supervisor views the file?

A: As long as the background check does not disclose any medical information required to be kept separate from the personnel file, the results may be stored in the employee’s file.  In addition, if the background check includes consumer information, federal law requires the employer to take reasonable measures to protect against unauthorized disclosure. Thus, it is recommended that this consumer information be kept separate of the personnel file, or at the very least, kept in a separate section of the personnel file.  As for review of the files, no law in Idaho requires background checks to be removed prior to viewing if no confidential information is included.  However, since there is potential liability in basing an employment decision on information such as a prior bankruptcy discharge, wage garnishment order, previous workers compensation claims, etc., a supervisor should be restricted to view only those materials in which there is a legitimate business need to access. 

Q: If an adjustment needs to be made to an employee’s paycheck (e.g., we failed to pay an employee for eight hours of vacation time), does the adjustment have to be made within a certain time period? Is it OK to have a policy that states if the adjustment is less than, say, $50, the update will be made on the following paycheck?

A: Under Idaho’s wage payment law, you may be liable for a civil penalty if the adjustment is not paid within fifteen days.  Accordingly, under certain circumstances, adopting a policy that an adjustment will be made on the following paycheck will further risk liability for undertaking a consistent pattern of untimely payment of wages, and is not recommended. 

Q: We are contemplating deleting the e-mails and e-mail accounts of employees who no longer work for our company. Are we required to keep former employees’ e-mails/e-mail accounts, or may we delete them as soon as employees are no longer employed by us?

A: Since there are implications for any emails related to matters that may end up in litigation, you should proceed carefully, and a company policy should definitely be adopted regarding deletion and/or archiving moving forward.  Primarily, it is recommended that you not delete any emails or accounts that might be involved in current or anticipated litigation.  Currently, since no policy has been adopted, if you are not sure what might end up in litigation, you should only delete accounts that have not been used for four years, considering the general statute of limitations.  Beyond that, your policy should have a consistent archival/deletion operation.  If deletion is preferred over archiving, it is recommended that at least a two year period be contemplated, unless the employee dealt with compensation, benefits, and/or leave decisions as the email may include records required to be kept for three years.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.