Management Update

Department of Labor Issues Opinion Letter That Parental Attendance at Child's IEP Meeting Is Covered by FMLA

In August, the DOL issued an opinion letter indicating that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.

The child in question received “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.” Periodically, the parents, school administrators and the child’s speech pathologist, school psychologist, and therapists had IEP meetings to “review the child’s educational and medical needs, well-being, and progress.”

The DOL determined that the employee’s attendance at the IEP meetings constituted “care for a family member … with a serious health condition.” Care for a family member includes both physical and psychological care. As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b)

Takeaways:

This is not a radical expansion of the FMLA and in fact, follows a sparse but consistent line of cases and prior opinion letters protecting leave for meetings with caregivers.
Employers must train their supervisors to spot this type of FMLA leave request. It would be easy for a supervisor to reject this request out of hand.
Employers should require proper FMLA certification so that they can confirm that the leave is protected.

NLRB Rules in Favor of Employment Arbitration

In August, the National Labor Relations Board issued a significant ruling in the case of Cordúa Restaurants. Specifically, the Board held that:

The NLRA does not prohibit employers from telling employees that failing or refusing to sign an arbitration agreement will result in their discipline or discharge.
The NLRA does not prohibit employers from promulgating mandatory arbitration agreements after employees have opted in to a collective action under the FLSA or state law.
The NLRA does prohibit employers from taking adverse action against employees for engaging in concerted activity by filing a class or collective action.

The nuance of this decision is apparent. An employer may require employees to sign an arbitration agreement after they have opted into a class or collective FLSA action, but the employer may not take adverse action its employees because they opted into the class or collective action.

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NLRB Issues a Common Sense Memo

Employers recently caught another break from the NLRB. In August the Board issued a Memorandum declaring that nine standard employer policies that have in the past been “presumed to be unlawful” will now be presumed lawful. Under the Obama administration, the Board took the position that these nine policies could have an unlawful "chilling effect" on employees' exercise of their rights to engage in "protected concerted activity" under Section 7 of the NLRA. Apparently, that position has changed.

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