Heard on the Employer’s Hotline – Part One

Thank you to all members and friends who attended MEA’s HR & Employment Law Conference, held on May 2, 2019. As part of the conference, we circulated several questions that have been “Heard on the MEA Hotline” over the past several months. These are real questions (some details may have been changed to protect privacy), and the Hotline’s real responses. While we discussed these questions briefly at the Conference, we share more detailed responses here, as they may be helpful to our members. As always, feel free to contact the Hotline and/or Member Legal Services with any human resources and employment law issues that arise in your business.

1. Using PTO instead of FMLA leave

Question: An employee (union member) is going out for surgery and expects to be out for 2 – 3 weeks. Company policy requires employees to use all of their PTO before the unpaid portion of the leave kicks in. The employee has asked to use PTO instead of taking leave under the Family and Medical Leave Act (FMLA). Can he do that?

MEA Response: The employer has the right to say no under these circumstances. According to the regulations interpreting the FMLA (29 CFR 300(d)), as soon as the employer has enough information to determine whether an employee leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave. Employees do not have the right to choose when leave will be designated as FMLA leave by the employer. As soon as the leave of absence qualifies as FMLA leave, it should be designated as such by the employer — regardless of whether the employee wants FMLA to apply.

2. I9 best practices after company merger

Question: When two companies merge and become one entity but have the same ownership, do they need to have employees complete new I9s?

MEA Response: The employer can choose to have new I9s completed or the new entity can use the previously completed I9s. if the employer chooses to have new I9s completed, they must be completed within three (3) business days of the transaction effective (close) date to remain compliant with I9 regulations.

3. Poster compliance and remote employees

Question: A company has remote employees in multiple states. Will posting links to the relevant state posters make them compliant?

MEA Response: While there does not appear to be any law or regulation requiring employers to provide remote workers with labor law postings, employers are required to communicate the information included in the employee postings to all employees, including those who work remotely. A best practice is to provide remote workers with easy access to alternative formats for viewing posting notices. These could include posting them on an organizational intranet (and regularly sending links to the remote employees) and/or regularly providing an electronic version of the postings via PDF that the employees can download, view and acknowledge receipt of. These efforts demonstrate a “good faith” effort to inform employees of their rights, which is especially important in employee disputes. The employer therefore should post the links, with regular notice to remote employees, and the employer should obtain written acknowledgement of receipt from the remote employees.

About the Author

Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.