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U.S. Department of Labor Marks the 20-Year Anniversary of the FMLA with A Report Entitled: "FMLA is Working" - Really?

March 2013

By: James B. Sherman, Esq.

On February 4, 2013 the U.S. Department of Labor (DOL) published a report to summarize the first 20 years of the Family and Medical Leave Act, entitled "FMLA is Working." The report ostensibly summarizes feedback from employers across the country. However, judging from the conclusions drawn by the DOL none of the employers who apparently contributed to its survey are among those we at Wessels Sherman have consulted with on a daily basis for the past 20 years over a variety of complex issues under the FMLA.

Among the many hard to believe conclusions reached in the DOL's "FMLA is Working" survey:

  • "91% of employers report that complying with the FMLA has had either a positive effect or no noticeable effect on employee absenteeism, turnover and morale."
  • "85% of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect."
  • "24% A relatively small portion of leave taken for FMLA reasons is intermittent leave."
  • "Fewer than 3% of covered worksites reported suspicion of FMLA misuse."

These survey results contrast starkly with surveys taken by business organizations and notably do not reflect the experiences of Wessels Sherman's attorneys since the inception of the FMLA 20 years ago. Employers familiar with our firm's unique phone consultation program call attorneys in any of our five offices throughout the Upper Midwest daily for legal advice on a wide variety of problems and issues involved with the FMLA. Examples of calls frequently made include suspected abuse of intermittent leave, proper handling of the certification process and how to address an employee's health care provider. Additionally, our attorneys regularly speak at seminars where employers express their frustration with difficulties administering the FMLA. Most recently in February and on March 7th Attorneys James Sherman presented an all day in-depth FMLA seminar for Lorman Educational Services. To date we have yet to identify any employers who took part in the DOL's FMLA survey nor have we found one employer who agrees with its survey results or the conclusion that "FMLA is working."

Contrary to the DOL, based on daily conversations with business owners and human resources personnel, lawyers find that most employers do find the FMLA hard to administer/understand, that employees do abuse the FMLA and, contrary to the DOL's assertion, 24% of FMLA leave being intermittent is a high percentage. In sum, we believe that over the course of the past 20 years the FMLA has been and continues to be a difficult and complex law for employers to administer.

If you are among the vast majority of employers whose experiences administering the FMLA differ from the DOL's published survey, we at Wessels Sherman would be happy to answer your FMLA questions and assist you with a protocol for better administration of its intricate provisions. You might also consider attending Wessels Sherman's latest Breakfast Series seminar Solutions for the Most Common FMLA Issues for a quick down and dirty one hour tour of what is new under the FMLA. The seminar is at 8:00 a.m. on April 24, 2013 and will take place at Wessels Sherman's Minneapolis office. (A webinar option is available for this seminar.) Contact Julie Kruse at (952) 746-1700, or email jukruse@wesselssherman.com for more information or to register. You may also register online here.