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"FMLA" -USED OR ABUSED?"

Dear Kathryn:

I think it's wonderful that employees have an avenue so that they can take off time from work for illness, surgery and family issues and have the protection of the Family and Medical Leave Act. The problem is that some less-than-honest employees have figured out that the Family Medical Leave Act path is an easy way to take off a few extra days when they desire. It's become a trend for people to call me and say "I'm using my FMLA", especially before the weekend and holidays."

My question is simple:-Is there a time when an employer can question the legitimacy of an FMLA claim, regardless of a Doctor's approval?

Employees have us employers over the barrel these days with the laws protecting them and I'm sick of it. I'm either responding to the Labor Board regarding some crazy, imagined slight an employee's endured or absences from an FMLA employee that just always happen to surround a weekend. An employer should have some rights, too.

ROXANNE D., Terryville, CT

Dear Roxanne:

You're not the only employer out there aggravated with the advantage some employee's take with laws in their favor. In fact, a recent survey my company conducted of over 1000 employers showed that the number-one concern with employers was the litigious nature that's become so prevalent during the last five years.

Their concern doesn't go unfounded-employee's claims against employers have increased over 30% in the last two years alone! Why? It seems employees, just like many people these days, tend to be more litigious and are out to get a free ride. If they feel or imagine they've been done an injustice, they feel much more motivated to act on it. The outrageous settlements from claims people read about only add fuel to the fire.

I investigated your particular dilemma with Attorney Henry Zaccardi of Shipman & Goodwin and he says you do have an option. Federal regulations regarding the Family Medical and Leave Act permit an employer to authenticate the employee's FMLA condition should they have concern about the employee's claim. You can request the employee visit a doctor of your choice to support the condition they claim under FMLA. Let's say your chosen doc's finding differs from the employee's doctor. A "tie-breaking doc" is what's needed to provide the final conclusion, and it must be one both you and the employee agree upon.

Employers face difficult times these days and it takes dedicated effort to stay on top of all of the changing laws and your liability under them. Good luck.

Dear Kathryn:

I have had some financial problems and my pay has been attached by creditors. I'm changing jobs and don't want my new employers to know about this. What can I do about this other then pay off my bills in full? I certainly don't have the money to do that. Does my current employer have to tell the creditors where I've gone to work? Can the creditors attach my 401k or IRA? I feel like I'm being hounded to death!

SUE R., New Haven, CT

Dear Sue:

Good news and bad.

The good news is that your 401k plan and your IRA will remain protected. The court allows the creditors a "wage execution", which implies precisely that-only your wages can be attached. Now here's the bad news.

While your current employer is not obligated to tell the creditors where you've gone, they'll figure out soon enough you're no longer employed at your current place when they stop receiving payments from your employer. It won't be tough for them to track you down. You can renegotiate with them and make a new arrangement instead of holding your breath waiting for the same wage execution to dog you at your new employer.

Call the law firm that issued the wage execution, explain you're leaving your employer but want to continue the payments. Hopefully the creditors will take your contacting them as earnestness in getting this resolved instead of temporarily skipping out on them. Make the payments like you've agreed no matter how tough. The last impression a new employer needs is that you're not responsible, personally or otherwise--and a wage execution could certainly give that impression.

Dear Kathryn:

I work in a busy physician's office and my employer runs this place like a prison. My employer instituted a policy last year that prohibited employees from being able to have our cell phones on at work. My beeper was my other method allowing my kids to send me text messages but my employer's vetoed that as well. As this place is a zoo, getting a personal call through the switchboard is impossible. The issue is that if one of my kids call, I expect that I'll be notified by the front desk immediately. I am always with patients in rooms getting them started before the doc sees them, and messages are held at the front desk.

Generally, I don't get a chance to check messages until lunch or at day's end. Even when my kids call and claim it's an emergency, the calls still get held. Isn't there some regulation that should allow important phone calls to get through to me?

When I complained to the office manager she said that if I hadn't taken advantage of their lenient policy in the past, this stipulation wouldn't be necessary. She also said that I should have someone else listed for my kids to call when there is an emergency, and not just me. I'm their mother! What are my rights here?

Sandra R., Manchester, CT

Dear Sandra:

I can appreciate the difficult and vulnerable position your employer has you in, however there is a limit to what an employer is mandated to do. The employer can call the shots when it comes to cell phone and beeper usage.

An employer is obligated, under CT State law, Section 31-5-jj to apprise an employee of genuine emergency calls. What's a "genuine emergency call?" According to the statute, an emergency is defined as an "a serious physical injury, death, or illness that requires medical attention." An employer would be risking a serious law suit should they not apprise their employee of a call of such an urgent nature. My suggestion in dealing with your employer is this:

Arrange for a relative, friend, or even have someone on call and pay them to be available to take your children's calls that are important, but not emergencies. Let that person determine the "emergency nature" of the call and have the adult place the call to you. Tell your employer of this arrangement you've made, as well as the fact you would expect that the any call coming in indicating it was an emergency; would be promptly passed to you. Gently, let your employer know that you're aware of your responsibility to your job and their responsibility to letting these true "emergency" calls through to you.

I understand your frustration at having to have your personal calls handled in this manner; however employers constantly gripe to me that the majority of their employees have kids, and kids can't differentiate between emergency situation and one that's not.

School vacations and breaks, the calls can run rampant and they can't put up with it. Try to meet halfway with your employer as you'll most likely run into this with other employers as well. Good luck.