All posts by stu

Compliance, Department of Labor, Disabilities, EEOC, FMLA, HR Compliance, Leave of Absence

What Employer Should Do When It Becomes Aware of a Possible FMLA-Qualifying Situation

The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of job-protected leave for certain family and medical reasons. While the rules seem straightforward, one of the most confusing moments for employers is the “initial trigger” and what to do when you first learn that an employee might need FMLA leave, even if they don’t specifically ask for it.

Under the law, employees don’t have to ask for “FMLA” by name. They only need to provide enough information for the employer to reasonably believe the situation may qualify. When that happens, the employer must take specific steps to evaluate eligibility, provide required notices, and document the process properly.  Here’s a step-by-step guide to what employers should do when a potential FMLA situation arises.

1. Recognize the Trigger: Notice Can Come from many Sources

FMLA obligations begin when an employer becomes aware of the possible need for leave, even indirectly. This may come from:

  • An employee calls out repeatedly for a medical issue
  • A supervisor hears about a serious health condition
  • A hospital note, doctor’s note, or medical restriction
  • An employee mentions a family member’s serious illness
  • An obvious situation, like a hospitalization

Employers cannot wait for an employee to use legal terminology. If the employer “should reasonably know,” the FMLA process must begin.  Employers should train supervisors on FMLA triggers.

2. Notify the Employee of Their Potential Rights

The employer must provide the DOL Notice of Eligibility and Rights & Responsibilities form within five business days of knowing of the employee need.  This form explains: (1) whether the employee is eligible for FMLA; (2) their obligations (e.g., completing certification); (3) their rights (job protection, continuation of benefits); and (4) expected documentation timelines.  This step is required even if the employer is unsure whether the reason truly qualifies.

3. Request Medical Certification (If Appropriate)

Employers may request that the employee return a completed DOL Healthcare Certification within 15 days. This is essential for employers to determine whether the condition meets the DOL definition of a “serious health condition.”  Employers should use the DOL model forms to ensure that they are compliant.  With the completed forms, the employer can confirm eligibility for an FMLA absence. If the employee does not return the completed form, and there is not sufficient information to know if the situation qualifies, FMLA leave can be denied or delayed.

4. Communicate With the Employee and Track Deadlines

Good communication prevents delays and reduces risk. Employers should be a regular communication with the employee to: (1) clarify incomplete or insufficient medical certifications (must allow 7 days to correct); (2) track the 15-day certification deadline for the medical certification form; (3) follow up if leave schedules are unclear; (4) keep supervisors informed only of what they need to know (not medical details).

5. Designate the Leave (or Deny It) Within 5 Business Days of Receiving Certification

Once the completed certification is received, the employer must issue the DOL FMLA Designation Notice form stating whether the leave has been approved, not approved or additional information is needed.   The Designation must be timely and supported by proper documentation.  Once leave is designated FMLA, the employer must track the usage (continuous or intermittent), maintain health insurance benefits, restore the employee if they return within 12 weeks and monitor any needed recertifications.

6. Maintain Confidentiality and Proper Recordkeeping

All FMLA documentation must be kept separate from the personnel file (i.e. medical file) and only shared on a strict need-to-know basis. Employers should maintain an FMLA folder to track the following matters: (1) eligibility notice date; (2) certification request date and return date; (2) designation of leave date; (3) leave dates and (4) emails and letters with the employee.  Keeping accurate records about the situation will be important if you are audited or challenged.

Final Thoughts

Handling possible FMLA situations correctly is essential to maintain compliance. The key is recognizing that the employer’s obligations begin as soon as there is enough information to reasonably believe the employee may need FMLA protected leave.  When the trigger occurs, the employer must follow a structured process of notice, documentation, communication, and tracking.  Having a proactive, consistent approach protects the company legally and builds trust with employees during challenging life events.

Consultstu provides fractional HR services to SMBs, including policies and forms for FMLA compliance. Consultstu has created an FMLA Compliance Manual to help small businesses (policy, forms, documents, resources) for compliance. Click here for more information.

Compliance, Independent Contractor, Risk Management, Unemployment, Wage and Hour, Workers Compensation

Florida Employers Have a New Independent Contractor Test in 2025

The recent Eleventh Circuit decision in Galarza v. One Call Claims, LLC marks a significant shift in how employers in Alabama, Florida and Georgia should assess whether workers are properly classified as independent contractors under the Fair Labor Standards Act (FLSA). In that case, a group of insurance adjusters who had been deemed independent contractors challenged the classification and sought overtime pay. The court reversed summary judgment for the employer and remanded the case for trial, holding that a reasonable jury could find the workers were employees.

At the heart of the case is the reaffirmation of the so-called “economic reality” test. The court still uses a six-factor framework (control over work, opportunity for profit or loss, investment in equipment, skill required, permanence of the relationship, and integral part of the business) derived from an earlier case. None of the factors are dispositive. Instead, the key question is whether the worker is economically dependent on the company or instead in business for him or herself.

In the new Galarza case, the court found that five of the six factors favored finding employment, not independent contracting – so the employees should get their day in court, in front of a jury.

For employers—especially those in industries such as construction, staffing, field services or where gig-type labor is used—this ruling has immediate significance. Labels and titles matter far less than actual practice. Even if a contract calls someone a “contractor,” if scheduling, supervision, equipment provision, exclusivity and permanence mirror an employment relationship, the contractor label won’t hold up in court.

Employers should review arrangements where individuals work full-time or exclusively, perform work integral to the business, use company-provided equipment, have little opportunity for independent profit or loss, and are subject to company oversight and schedule control. That kind of relationship now triggers a high risk of employee status under the FLSA in the Eleventh Circuit.

In summary, the Galarza decision underlines that the key issue is economic dependence, is not just contractual language. For HR professionals in Florida, the new ruling underscores the need for proactive review of all contractor arrangements. This means creating clear documentation of independent contracting relationships and ensuring that written contracts and operational practices match. Misclassification can lead to significant liability for unpaid wages, overtime and statutory penalties (workers’ compensation and unemployment). The Florida Department of Revenue notes that an intentional misclassification of a worker as an independent contractor when they are in fact an employee may be a felony under Chapter 443 of the Florida Statutes (unemployment).

HR Compliance, Immigration, USCIS

Big Change! DHS Ends Automatic Extensions of Employment Authorization Documents (EADs)

On Oct. 29, 2025, the U.S. Department of Homeland Security (DHS) announced an Interim Final Rule (IFR) to end the practice of automatically extending the validity of certain Form I-766, Employment Authorization Documents (EADs), when a renewal Form I-765, Application for Employment Authorization, was timely filed. According to the DHS, this will result in more frequent vetting of aliens who apply for employment authorization to work in the United States. Renewal EAD applicants who file Form I-765 on or after Oct. 30, 2025, will no longer receive an up to 540-day automatic extension of their EAD and/or employment authorization.

This rule change does not impact EADs that were automatically extended due to a Form I-765 renewal application being timely filed prior to Oct. 30, 2025.  Those employees (in certain categories) may present their Form I-797C receipt notice for their renewal EAD application to their employer to show that the validity of the eligible EAD has been automatically extended as evidence of continued employment authorization. Read more.

USCIS recommends aliens seek a timely renewal of their EAD by properly filing a renewal application up to 180 days before their EAD expires.

Consultstu provides fractional HR services to small/mid businesses.

Compliance, E-Verify, HR Compliance, I9 Form, Immigration

Handling Employee Mismatch, Non-Confirmation in the E-Verify System

E-Verify is a key tool for employers in the United States, allowing them to verify the eligibility of their employees to work legally. However, there are instances when the E-Verify system may return a mismatch or non-confirmation status for an employee’s information. Employers need to understand how to handle these situations to ensure they maintain compliance with immigration laws and ensuring a smooth employment process. In Florida, E-verify is mandatory for employers with 25 or more employees.
E-Verify is a free online system managed by the U.S. Citizenship and Immigration Services (USCIS) that allows employers to confirm the work authorization of their employees. After entering an employee’s information, the system compares the data against records from the Social Security Administration (SSA) and the Department of Homeland Security (DHS). If the information matches, the employee is confirmed as eligible to work “employment authorized”. However, if there is a discrepancy, the employer receives a mismatch or non-confirmation notice. Here are the steps to Handle Mismatches or Non-Confirmations in E-verify.

  1. Re-verify results: Carefully review the details to understand the nature of the mismatch. Common causes include typographical errors, name changes, or discrepancies in Social Security numbers. Use the employee’s full legal name from his/her documents.
  2. Notify the Employee: Give the employee an opportunity to resolve the discrepancy. They may need to contact the SSA or DHS to correct their records. Employers should notify the employee within 10 federal working days.
  3. Provide Notice of Action letter: Gve your employee a copy of the Further Action Notice from E-verify. Review the Further Action Notice with your employee in private and have them confirm whether the information listed at the top is correct. If information is correct, tell the employee they have 10 federal working days from the date of the mismatch letter to notify you whether they will take action to resolve the mismatch.
  4. Close the E-verify Case: If your employee does not give you their decision by the end of the 10th federal government working day after E-Verify issued the mismatch, then you close the case.  Please see E-Verify User Manual for more information on closing cases in E-Verify. If an employee is unable to resolve the conflict, termination of employment should occur.

Read more about these steps on E-verify, including common FAQs and related Resources for Employers. Remember, employers are not allowed to complete E-verify checks before the employee is hired. Consultstu provides fractional HR services to small/mid businesses.

Commercial Motor Vehicle Driver, Compliance, DOT, Drivers, Drug and Alcohol, Drug Free Workplace, FMCSA, HR Compliance, Risk Management, Safety

FMCSA Supervisor Drug & Alcohol Training: What Employers Need to Know

If your company employs CDL drivers who operate commercial motor vehicles (CMVs) on public roads, the Federal Motor Carrier Safety Administration (FMCSA) requires supervisors to complete specific drug and alcohol training under 49 CFR §382.603. Without properly trained supervisors, companies risk: (1) failing to detect impairment before accidents happen; (2) FMCSA compliance violations and penalties; and (3) increased legal exposure.

Who Needs the Training?

All supervisors of CDL drivers must complete the training — this includes fleet managers, dispatchers, and anyone responsible for overseeing drivers.
Owner-operators with no other drivers are exempt.

Training Requirements

Supervisors must receive: 60 minutes of alcohol training, and 60 minutes of controlled substances training for a total of at least two hours. The training focuses on identifying behavioral, physical, speech, and performance indicators of alcohol misuse and drug use to help supervisors make reasonable-suspicion testing decisions. Video training course is available from the DOT – click here for the 2 hour course.

Frequency and Documentation

  • Training is required once, though refreshers are strongly recommended every 1–2 years.
  • Employers must keep records showing who completed the training, the date, and the content covered. Records should be retained while the person is a supervisor and for two years afterward.

Compliance Tips for Employers

  • Use an FMCSA-compliant program (2 hours minimum).
  • Train new supervisors before they begin overseeing CDL drivers.
  • Keep completion certificates on file.
  • Reinforce awareness with periodic refreshers.
Chatgpt, Fractional HR, HR Compliance, HR Costs, HR Resources, HR software, Human Resources, Recruiting

10 Ways ChatGPT’s Paid Version Can Improve Your HR Department

Human Resources professionals are expected to juggle recruiting, onboarding, compliance, training, and employee relations—often with limited time and staff. Discover how ChatGPT’s paid version can transform Human Resources efficiency—helping HR teams automate routine tasks, improve communication and focus on people-first activities.

Here are 10 practical ways paid ChatGPT can help your HR team work better.

1. Draft and Refine HR Documents Quickly

Policy updates, job descriptions, performance forms and internal HR memos can be created by ChatGPT. Quickly draft professional documents, then fine-tune the tone and content—cutting hours off writing and formatting time.

2. Streamline Recruitment and Job Postings

ChatGPT can help craft compelling job ads, screening questions, and follow-up emails. It ensures consistent messaging to candidates and helps HR teams respond faster, creating a smoother applicant experience.

3. Simplify Employee Communications

Need to send a policy reminder, disciplinary notice, or all-staff announcement? ChatGPT can write clear, respectful, and compliant messages that maintain the right tone for sensitive topics.

4. Develop Training and Onboarding Materials

The tool can outline orientation checklists, training presentations, and learning content tailored to different roles. HR can easily adapt materials for field staff, office employees, or leadership teams.

5. Summarize Complex Policies

Handbooks, benefit booklets and compliance documents can overwhelm employees. ChatGPT can summarize dense documents into short, plain-language explanations, making information easier to understand and apply.

6. Automate Routine HR Messages

Set up ChatGPT templates for repetitive messages—such as interview scheduling, attendance reminders, or payroll updates—so HR teams can focus on higher-value work.

7. Support Performance Review Writing

ChatGPT helps managers and HR write thoughtful, balanced performance comments. It can suggest phrasing that emphasizes improvement and alignment with company goals, while keeping language professional, constructive and fair.

8. Generate Ideas for Employee Engagement

From recognition programs and wellness challenges to newsletter content, ChatGPT can brainstorm creative engagement ideas to keep workplace culture strong and employees connected.

9. Organize Compliance and Documentation Tasks

While not a substitute for compliance and legal advice, ChatGPT can provide checklists for compliance processes, track onboarding forms, or help prepare summaries of regulatory requirements—keeping your HR files consistent and audit-ready.

10. Assist with HR Data Reporting

Using data exported from HR systems, ChatGPT can help summarize turnover trends, training completion rates, or recruiting metrics, and even suggest ways to visualize them in reports or presentations.

The Bottom Line

The paid version of ChatGPT is more than a writing assistant—it can be a very effective HR team member. By automating routine communication and document creation, it allows the HR team to dedicate more time to supporting employees, enhancing engagement, and analyzing HR related data and trends for the business.

Americans with Disabilities Act, EEOC, Employee Illness, Employee Injury, Employee Policies, Return to Work

Can an Employer Require a “Full Release” to Return from Medical Leave?

When an employee takes a medical leave of absence—whether for surgery, illness, or another health condition—employers often ask for a doctor’s note before the employee returns. But what about requiring a “full release” or “100% healed” certification? Is that legal? The short answer: not usually. A national Property management company recently settled a federal EEOC lawsuit charging it retaliated against an employee with a disability and screened out disabled workers.  Prohibiting employees from returning from a medical leave of absence without a full-duty release note from their physician and a physician-signed copy of their job description was not legal because it prohibited disabled employees from returning to work if they needed an accommodation.

Understanding the Law

Under federal law—primarily the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA)—employers must be careful not to impose overly broad medical restrictions when bringing employees back from leave.

The ADA protects qualified employees with disabilities from discrimination and requires employers to provide reasonable accommodations that allow employees to perform their essential job duties. A blanket policy requiring all employees to be “fully released” to return to work may violate the ADA because it ignores an employee’s right to return with accommodations.

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave for serious health conditions. At the end of FMLA leave, employers may require a fitness-for-duty certification related to the employee’s ability to perform the job’s essential functions—but the certification cannot demand that the employee be 100% recovered if they can still do the job with or without accommodation.

What Employers Can Require

Employers can legally:

  • Ask for a fitness-for-duty certification that specifically addresses whether the employee can perform the essential job functions listed in their job description.
  • Require a release that confirms the employee’s ability to safely perform work duties, with or without accommodations.
  • Engage in an interactive process with the employee and their healthcare provider to identify any needed accommodations.

What Employers Cannot Require

Employers should not:

  • Enforce a blanket “no restrictions” or “100% healed” policy.
  • Refuse to reinstate an employee who can perform essential duties with reasonable accommodations.
  • Ask for unrelated medical information or condition details beyond what is necessary to determine fitness for duty.

Best Practices

To stay compliant and support a smooth return-to-work process:

  1. Update job descriptions to clearly identify essential job functions.
  2. Develop a consistent fitness-for-duty process that focuses on abilities, not medical labels.
  3. Train supervisors and HR staff on ADA and FMLA return-to-work rules.
  4. Engage in the interactive process early to explore accommodations such as modified duties, schedules, or temporary restrictions.
  5. Document any communications with the employee and healthcare provider.

Bottom Line

Requiring a “full release” to return from medical leave may seem like a way to protect safety and productivity—but it can easily cross into a violation of the ADA or FMLA. The safest approach is to focus on whether the employee can perform the essential job functions, with or without reasonable accommodation, rather than insisting on complete recovery.

By balancing legal compliance with employee support, employers can reduce risk, improve retention, and create an effective return-to-work process.

Compliance, Department of Labor, Fair Labor Standards Act, HR Compliance, Minimum Wage, Wage and Hour

US Department of Labor Ends Practice of Seeking Liquidated Damages during Investigations

In June 2025, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced a major policy change when it issued a field assistance bulletin clarifying that it may not seek or collect the payment of liquidated damages in any administrative matter under the Fair Labor Standards Act. Section 216(c) of the FLSA authorizes the Wage and Hour Division to “supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee.” The statute does not authorize the Department to compromise claims for or recover liquidated damages except where an enforcement action is brought in litigation. Congress made clear that such damages are reserved for judicial proceedings and responsibility falls to the courts of law – not the Department of Labor. However, in 2010, under the Obama administration and again under the Biden administration, the WHD was directed to seek liquidated damages in the administrative investigation stage—prior to referral for litigation. This policy has now been reversed. Read the FAB 2025-3.

What are liquidated damages? Under the FLSA, liquidated damages are authorized for employees who bring private lawsuits to recover unpaid minimum wages or overtime compensation. Liquidated damages are an additional equal amount of wages to the alleged unpaid wages. These damages mean the employer would pay double damages to an employee who is successful in bringing an unpaid wage lawsuit.

Liquidated damages are reserved only for judicial proceedings. The FLSA provides that a court may decline to award liquidated damages if it determines that the employer acted in good faith and had reasonable grounds for believing its conduct was not in violation of the Act. This statutory language expressly vests the authority to evaluate an employer’s good faith defense—and to determine whether liquidated damages are appropriate—with courts, not WHD.

What does this mean? Going forward, it should be easier and quicker to resolve wage disputes with employees, which is good for all parties involved.

Employee Injury, HR Costs, Injury Statistics, Insurance, Workers Compensation

Florida Work Comp Rates Heading Down in 2026 – 6.9% Cut Recommended

The National Council on Compensation Insurance (NCCI) is recommending that the Florida Office of Insurance Regulation reduce workers’ compensation rates by an average of 6.9%, starting Jan. 1, 2026. NCCI is the nation’s most comprehensive source for workers’ compensation data, insights and solutions. It is a licensed rating organization authorized to make recommended rate filings on behalf of workers’ compensation insurance companies in Florida.

Reducing rates is being recommended because of improved loss experiences at Florida companies between 2022 and 2024. In addition, the claim frequency in 2024 decreased faster than the average long-term rate of decline. Inflation drove the average medical and indemnity claim severity up in 2024, but the main driver for the increased cost was increased utilization of medical services by injured workers. Indemnity claims also increased due to wage increases.

In November, the Florida Insurance Commissioner will issue a Final Order and either grant approval of the NCCI Recommendation or take another action. Last year, the Commissioner granted a 1.0% decrease in statewide overall workers’ compensation insurance rates in 2025.

If your business needs assistance understanding the specific classification codes affecting your industry, or how claims impact your experience modification rate (EMR), give us a call. Consultstu works with many companies to bring down the cost of workers’ compensation, handle questions related to specific claims and implement company-wide strategies that keep WC costs as low as possible.

Compensation, Employment Poster, HR Compliance, Minimum Wage, Posters, Wage and Hour

Florida Minimum Wage Increasing to $14/hour on Sept 30th

On September 30, 2025, the Florida minimum wage will increase to $14 per hour. The tipped minimum wage in Florida will increase to $10.98 because Florida employers are permitted to take a tip credit of up to $3.02 per hour for tipped employees. An employer that claims a tip credit must ensure that the employee receives enough tips from customers, and direct (or cash) wages per workweek to equal at least the minimum wage and overtime compensation required under the FLSA.

Why is it increasing? On November 3, 2020, Florida voters approved a constitutional amendment to gradually increase the state’s minimum wage each year until reaching $15.00 per hour in September 2026.

Poster Requirement. Section 448.109, Florida Statutes, requires employers who must pay their employees the Florida minimum wage to post a minimum wage notice in a conspicuous and accessible place in each establishment where these employees work. Florida’s minimum wage notice is available for downloading in English, Spanish, and Creole from the Florida Department of Commerce’s website at https://www.floridajobs.org/business-growth-and-partnerships/for-employers/display-posters-andrequired-notices. The latest 2025 minimum wage poster should be available in the next week.

Want to know what the minimum wage is for a different state? Check out the Wage and Hour – State Minimum Wage Laws map and table.

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