Can you prove that you posted FMLA notice ‘Conspicuously’?

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in FMLA Guidelines,Human Resources

Ran in HR Weekly -- Sept. 11, 2007, and posted on home page that week

Employers must post a copy of the approved federal FMLA poster “conspicuously” in the workplace. Neglecting to do so opens the door for lawsuits if you discipline employees for absences that would have been covered by FMLA. Those employees may claim they didn’t ask for FMLA leave because they weren’t familiar with the law.

If an employee says he never saw the poster, could you show the court he couldn’t have missed it? If all you can show is that the poster is there now, that won’t necessarily be good enough.

Advice: Place workplace posters where employees can’t avoid them—by the time clock, employee entrance or even restrooms. Mount posters inside a locked glass case so employees can’t remove or tamper with them.

Finally, take a digital, time-stamped photo to provide clear and convincing evidence that the poster was up where and when you said.

Recent case: Rodney Barthalow, whose wife had a heart ailment and sometimes needed his care, was terminated for what his employer claimed was habitual absenteeism. Barthalow never provided any medical documentation explaining why he was absent or about his wife’s medical condition. He did claim that he told his supervisors that his wife was ill.

When Barthalow sued, he claimed he never knew about the FMLA, or he would have been more than happy to get medical forms filled out. The company told the court that it posted the required FMLA notice in the company garage. Barthalow admitted he had been in the garage many times, but said he didn’t remember ever seeing the notice.

The court said it was clear Barthalow should have seen the poster, based on the company’s description of its location and how long it had been there. Because the poster was in a conspicuous spot, the employer met its burden—making it irrelevant that Barthalow didn’t see it. (Barthalow v. David Martin Excavating, No. 1:05-CV-2593, MD PA, 2007)

Final note: The court let the case go forward anyway, ruling that the company should have let Barthalow know how to ask for FMLA leave after it learned about his wife’s illness.

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