Category Archives: Family and Medical Leave Act (FMLA)

Americans with Disabilities Act, Disability discrimination, Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA): What Employers and Employees Need to Know

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Life happens—whether it’s the birth of a child, a seri­ous health con­di­tion, or the need to care for a sick fam­i­ly mem­ber. The Fam­i­ly and Med­ical Leave Act (FMLA) pro­vides eli­gi­ble employ­ees with the right to take unpaid, job-pro­tect­ed leave in these sit­u­a­tions. But FMLA can be tricky, and both employ­ers and employ­ees need to under­stand their rights and responsibilities.

What Is FMLA?

The FMLA is a fed­er­al law that requires cov­ered employ­ers to pro­vide eli­gi­ble employ­ees with up to 12 weeks of unpaid leave per year for spe­cif­ic med­ical and fam­i­ly-relat­ed rea­sons (29 U.S.C. §2612). Dur­ing this time, employ­ees’ jobs and health ben­e­fits are protected.

Cov­ered rea­sons for FMLA leave include:

  • The birth, adop­tion, or fos­ter place­ment of a child.
  • A seri­ous health con­di­tion that pre­vents an employ­ee from per­form­ing essen­tial job duties.
  • The need to care for a spouse, child, or par­ent with a seri­ous health condition.
  • Qual­i­fy­ing exi­gen­cies relat­ed to a fam­i­ly member’s mil­i­tary service.

Addi­tion­al­ly, the FMLA pro­vides up to 26 weeks of leave for employ­ees car­ing for a cov­ered ser­vice­mem­ber with a seri­ous injury or ill­ness (29 U.S.C. §2619).

Con­tin­ue read­ing The Fam­i­ly and Med­ical Leave Act (FMLA): What Employ­ers and Employ­ees Need to Know →
Artificial Intelligence, Employment policies, Equal Employment Opportunity Commission, Family and Medical Leave Act (FMLA), Independent Contractors, Non-compete agreements, Wage and Hour Issues

Evolving Landscape of Employment Law: Key Updates for 2025

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If you’re an employ­er or an employ­ee, keep­ing up with employ­ment law changes can feel like chas­ing a mov­ing tar­get. With new court deci­sions, leg­isla­tive updates, and evolv­ing work­place norms, it’s more impor­tant than ever to stay informed. As we set­tle into 2025, here are some of the most sig­nif­i­cant devel­op­ments shap­ing employ­ment law across the country—and par­tic­u­lar­ly in West Virginia.

1. Remote Work and Wage & Hour Compliance

The pan­dem­ic may be in the rearview mir­ror, but remote and hybrid work are here to stay. That shift has raised fresh legal ques­tions, par­tic­u­lar­ly when it comes to wage and hour compliance.

A major trend we’re see­ing is increased scruti­ny from the U.S. Depart­ment of Labor (DOL) regard­ing remote work­ers’ over­time eli­gi­bil­i­ty. The Fair Labor Stan­dards Act (FLSA) requires employ­ers to track hours worked accu­rate­ly, but when employ­ees are log­ging in from home, com­pli­ance gets tricky. Employ­ers must ensure that non-exempt employ­ees are prop­er­ly record­ing breaks, over­time, and any “off-the-clock” work.

West Vir­ginia busi­ness­es with remote employ­ees should take a close look at their time-track­ing poli­cies to avoid poten­tial wage claims. Even an hon­est mistake—like fail­ing to count time spent respond­ing to emails after hours—can lead to cost­ly litigation.

2. Noncompete Agreements Under Fire

Non­com­pete agree­ments have been a hot-but­ton issue in recent years, and 2025 is shap­ing up to be a turn­ing point. The Fed­er­al Trade Com­mis­sion (FTC) issued a rule (April 2024) with a near­ly com­pre­hen­sive nation­wide ban on most non­com­pete claus­es, argu­ing that they sti­fle job mobil­i­ty and wage growth. 

I will dis­cuss below the legal chal­lenges to the FTC rule, but employ­ers should review their exist­ing agree­ments and con­sid­er whether non­com­petes are still enforce­able (in light of applic­a­ble state law and the prospect of the FTC rule sur­viv­ing legal attacks) or if alter­na­tive protections—such as con­fi­den­tial­i­ty and non­so­lic­i­ta­tion clauses—are a bet­ter approach.

Sta­tus of the FTC rule

Con­tin­ue read­ing Evolv­ing Land­scape of Employ­ment Law: Key Updates for 2025 →
Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Seminars

Drew Capuder Will Be Speaking at Sterling Employment Law Seminar

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On March 29, 2017, I will be speak­ing and pre­sent­ing an arti­cle on “The Per­ilous Inter­sec­tion of FMLA and ADA,” at a sem­i­nar host­ed by Ster­ling Edu­ca­tion Ser­vices. The Sem­i­nar, “Employ­ment Law: Rights, Ben­e­fits, and Emerg­ing Issues,” will take place in Mor­gan­town, West Vir­ginia. If you would like to attend the sem­i­nar click here for more infor­ma­tion and a reg­is­tra­tion form.

Here is the agen­da for my speech and article:

  1. FMLA updates
  2. ADA updates and EEOC guidelines 
    1. Expan­sion of what can be con­sid­ered a “dis­abil­i­ty”
    2. What con­sti­tutes “rea­son­able accom­mo­da­tion” accord­ing to the EEOC
    3. Dis­crim­i­na­tion and violations
    4. Review and update writ­ten poli­cies and job descriptions
  3. Over­lap of FMLA and ADA: find­ing the right balance
Family and Medical Leave Act (FMLA), Labor Unions, Pending legislation, WV Legislation

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

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House Bill 2770, which was recent­ly intro­duced into the West Vir­ginia House of Del­e­gates, would cre­ate the “Flex­i­ble Leave Act” to allow employ­ees to take already earned paid leave, and to use that leave for paid time off for an ill­ness of the employ­ee or the employee’s “imme­di­ate fam­i­ly”. The bill does not give employ­ees any addi­tion­al paid leave—it only allows them to take their paid leave that they have already earned under their employ­ers’ poli­cies, and allows the flex­i­bil­i­ty (hence the name, “Flex­i­ble Leave Act”) to take leave that may have been intend­ed for anoth­er pur­pose, such as earned vaca­tion time, and apply it for the dif­fer­ent pur­pose of their own or an imme­di­ate fam­i­ly member’s illness.

On Jan­u­ary 24, 2011, Del­e­gates Caputo, Fra­gale, Hat­field, Mar­tin, and Moye intro­duced House Bill 2770, which is being referred to the Com­mit­tee on Ener­gy, Indus­try and Labor, Eco­nom­ic Devel­op­ment and Small Busi­ness then Finance. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 2770 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any oth­er mem­bers of the Sen­ate, you can go to the House Mem­bers page and pick the mem­ber from a drop-down list. For those of you who are inter­est­ed in find­ing out more about the leg­isla­tive process, the Leg­is­la­ture has a “How a Bill Becomes Law” page.  The Leg­is­la­ture also has a very nice pho­to gallery of the Capi­tol Build­ing.

Con­tin­ue read­ing Leg­isla­tive Update: Pend­ing bill would expand sick leave rights for West Vir­ginia employ­ees →
Family and Medical Leave Act (FMLA), Fourth Circuit, Interest, Liquidated damages, Result for Employee

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

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Retal­i­a­tion law is one of the most devel­op­ing (and dan­ger­ous) areas of employ­ment law. I recent­ly spoke at the West Vir­ginia Employ­ment Lawyers Association’s annu­al con­fer­ence on retal­i­a­tion law, and I want­ed to go back and dis­cuss an impor­tant Fourth Cir­cuit deci­sion on the Fam­i­ly and Med­ical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dotson v. Pfizer: Adoption and the FMLA

The deci­sion is Dot­son v. Pfiz­er Inc., 558 F.3d 284 (2009), and involved alle­ga­tions of retal­i­a­tion stem­ming from leave tak­en for an inter­na­tion­al adop­tion from Russia.

The jury award­ed $1,876 in dam­ages on the FMLA inter­fer­ence claim and $331,429.25 on FMLA retal­i­a­tion claim. The judge then award­ed $333,305.25 in statu­to­ry liq­ui­dat­ed dam­ages, $375,000 in attor­neys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Cir­cuit reject­ed all aspects of the employer’s appeal, but found the tri­al court made a mis­take in refus­ing to award the plain­tiff pre-judg­ment interest.

Con­tin­ue read­ing Back from the USSR: FMLA Retal­i­a­tion, 4th Cir­cuit Deci­sion in Dot­son v Pfiz­er →
Family and Medical Leave Act (FMLA), Sexual orientation

FMLA now applies to leave for care of children by same-sex couples

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The Unit­ed States Depart­ment of Labor recent­ly issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­i­ly and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In oth­er words, employ­ees in same-sex rela­tion­ships who qual­i­fy for leave under the FMLA will be enti­tled to pro­tect­ed leave for the qual­i­fy­ing care of their children.

As the DOL’s press release suc­cinct­ly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month peri­od to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employ­ee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­to­ry lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Interpretation:

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) — ©; 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©, 825.800.

(empha­sis added).

Con­tin­ue read­ing FMLA now applies to leave for care of chil­dren by same-sex cou­ples →
Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Hostile work environment, Sexual harassment

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

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I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­u­al, Racial, and Oth­er Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agen­da, and here is the fac­ul­ty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion cred­it for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.