From Nevada
Question: We have members that have FMLA leave. Recently it has come up about FMLA and calling in sick. The department has a policy that if you are calling in sick it has to be done at least two hours prior to the start of your shift. The question is, if a member calls in under the two hours using FMLA as the excuse, are they exempt from the department policy and is that action exempt from any disciplinary action or counseling?
Answer: The general rule under the FMLA is that an employee should give 30 days’ notice of the intent to use FMLA leave. However, if the giving of this notice is “impracticable” (for example, if the employee quickly suffers a serious health condition), then notice by the employee has to be given as soon as reasonably practicable. As you can imagine, this produces a case-by-case standard. In some situations, the employee would not be able to give two hours’ notice – for example, if the employee breaks her arm just before the shift starts. In other cases, it will be practicable for the employee to give the additional notice.
From Connecticut
Question: Our police contract expires June 30, 2010. Several officers have expressed an interest in retirement. Standard practice was to retire prior to the end of the contract. If you chose to stay until July 1, 2010, you would then fall under the provisions of the new contract no matter when it is finalized, even if it is a two-year process and you retire prior to the ratification of this new contract. Some union members don’t think so and feel they can stay beyond the expiration date and still fall under the old contract as long as they retire prior to the ratification of the new one. Any case law or labor law on the subject?
Answer: The usual rules are these:
1. The new contract controls which provisions of the new contract, if any, are retroactive.
2. Absent a reference to retroactivity in a new contract, a provision is presumed to be non-retroactive.
3. If an officer has already retired, it would be extraordinarily unlikely that a new contract could alter the terms of retirement without violating the officer’s vested contract rights.
That said, there is a huge variation from state to state on these rules, which makes it imperative you get advice from a Connecticut lawyer on this.
For example, a Pennsylvania court recently bucked what we see to be the general trend on Number 3 and upheld an arbitrator’s decision that changed the retirement benefits of retired employees.
From California
Question: If your employer requires you to have a certification, does it have to provide the training for getting the CEUs to keep the certification? It is my understanding that if it is required then they have to provide the training or pay overtime if it isn’t provided on duty.
Answer: Since you’re in a collective bargaining environment, it’s most likely that your contract covers the issue of compensation for such work. In the absence of any coverage under the contract, and assuming there are no state wage and hour laws that apply to your situation, that would leave the FLSA as the relevant law. The Department of Labor has interpreted the FLSA to contain an exception to the usual rule that training time must be compensated. Under that exception, if training is mandated by a higher form of government as a precondition of obtaining or maintaining a certificate required by the employer for the job, then the time spent in the training need not be compensated.