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HomeMy Public PortalAbout21-9918 Ratifying FMLA for John PateSponsored By: City Attorney RESOLUTION NO. 21-9918 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA- LOCKA, FLORIDA, RATIFYING FMLA LEAVE FOR JOHN PATE, CITY MANAGER; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, The Family and Medical Leave Act of 1993 is a United States labor law requiring covered employers to provide employees with job -protected and unpaid leave for qualified medical and family reasons; and WHEREAS, in a letter dated January 28, 2021, Ms. Kierra Ward, Opa-Locka's HR Director, granted John Pate, City Manager FMLA leave approval. The letter stated, in part, Mr. Pate is "required to use sick, vacation, and personal accrued time concurrent with FMLA"; and WHEREAS, over time, Mr. Pate's approval for leave has been interpreted as "intermittent" leave. Intermittent FMLA leave is taken pursuant to the Family Medical Leave Act (FMLA) for a single injury, taken in separate, non-consecutive time periods rather than a single span of time. WHEREAS, for employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee would agree on the employees normal schedule or average hours to be worked each week and reduce their agreement to a written record to be maintained by the City; and WHEREAS, in an e-mail dated April 23, 2021, the City Manager made it widely known to all elected officials, directors, his executive assistant, the assistant city manager, police department personnel and certain persons involved with State of Florida Oversight Board that multiple conditions have caused him to be on FMLA; and WHEREAS, Mr. Pate is now represented by an attorney who has since requested that his January leave request be ratified by the City Commission. This matter was initially brought to the City Commission at its September 8, 2021 meeting, however, the issue was not accompanied by a resolution and the majority of the City Commission desired more concrete information and documentation as to the amount of all leave that has been utilized by Mr. Pate to date; and WHEREAS, the attorney for Mr. Pate has cautioned the City that it is "the employer's obligation to keep track of Mr. Pate's FMLA leave, not Mr. Pate." This representation is accurate and rightfully supported by 29 CFR 825.500 which provides, in part, that: Covered employers who have eligible employees must maintain records that must disclose: (1) Basic payroll and identifying employee data, including name, address, and Resolution No. 21-9918 occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid; (2) Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA; (3) If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave; (4) Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all written notices given to employees as required under FMLA and these regulations; (5) Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves; (6) Premium payments of employee benefits; (7) Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement; and WHEREAS, John Pate previously produced a document entitled "John Pate Time Off Report -10/15/2019 - 04/15/2021" but such report did not include FMLA leave that started 1/28/21; and WHEREAS, a system and process for documenting City Manager Pate's leave has now been established, as set forth in Composite Exhibit "A"; and WHEREAS, the City Attorney recommends ratification of FMLA approval that was initially made by the HR Director. The City Attorney takes no position as to whether the documents maintained by the city are accurate; and WHEREAS, the City Commission finds that it is in the best interest of the City to ratify the January 28, 2021 leave approval of City Manager Pate. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA- LOCKA, FLORIDA: SECTION 1. The recitals to the preamble herein are incorporated by reference. SECTION 2. RATIFICATION OF FMLA LEAVE The City Commission of the City of Opa-Locka, Florida hereby ratifies FMLA leave for John Pate, City Manager, beginning January 28, 2021. 2 Resolution No. 21-9918 SECTION 3. EFFECTIVE DATE This Resolution shall take effect upon the adoption and is subject to the approval of the Governor or Governor's Designee. PASSED and ADOPTED this 22nd day of September, 2021. ATTEST: J a Flores, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Burnadette Norris- h'eeks, P.A. Moved by: Commissioner Taylor Seconded by: Commissioner Davis VOTE: 5-0 Commissioner Bass YES Commissioner Davis YES Commissioner Taylor YES Vice -Mayor Williams YES Mayor Pigatt YES 3 Matthew A. Pigatt, Mayor COMPOSITE EXHIBIT A City of Opa-locka Kierra Ward, MBA Human Resources Director MEMORANDUM Office: 305-953-2815 Email: kward@opalockafl.gov To: Burnadette Norris -Weeks Esq, City Attorney From: Kierra Ward, Human Resources Director , Re: Request for Reasonable Accommodation/ FMLA leave reporting Date: September 2, 2021 Please be advised that City Manager, Mr. Pate requested reasonable accommodations be made for him in concurrence with his intermittent FMLA/ medical leave in which would enable him to work remotely during the times that his health condition prevents him from physically commuting to the office. The Executive Secretary, Ms. Lawson of the Manager's office is assigned to approve all time cards for the manager's office staff. Mrs. Lawson has been notified that Mr. Pate has been approved for FMLA leave and to document his time accordingly as reported as applicable. See attached: (1) FMLA Policy, (2) FMLA time report taken for Mr. Pate, (3) FMLA approval letter. ********x************END OF MEMORANDUM*********:k***************** Human Resources Department •780 Fisherman Street 4th floor, Opa-locka, FL 33054 • (305)953-2815 CITY OF OPA-LOCKA PERSONNEL BENEFITS SUBJECT: FAMILY AND MEDICAL LEAVE 3-304 The City has adopted an FMLA policy in accordance with applicable law and regulations, as follows: 1. Employees who have been employed by the City for one year and have worked at least 1,250 hours during the twelve months before the start of the FMLA leave can take up to 12 weeks of unpaid leave in a 12 month period for: a. The birth or adoption of a child; b. Acquiring a foster child; c.. The serious health condition of a child, spouse, or parent; and d. The serious health condition of the employee. 2. The City uses a rolling twelve month period in calculating FMLA leave. This means that each time an employee takes FMLA leave, the amount of leave available would be the difference between any leave already used in the immediately preceding twelve months and the full twelve week allotment. 3. The right to FMLA leave applies to male and female workers. 4. An employee must use his/her sick leave benefit for any part of the 12 -week period. If the employee's sick leave is exhausted, the employee may request permission to convert annual leave to sick leave. 5. The City will maintain any pre-existing health insurance for the duration of the leave and at the level and under the same conditions and coverage as was provided prior to the commencement of the leave. It is the employee' s responsibility to pay his or her portion of the insurance cost, if applicable. 6. An employee returning from FMLA will be restored to the original or an equivalent position with equivalent benefits, pay and all other terms and conditions of employment. 7. When husband and wife both work for the City, the total amount of leave that they may take is limited to 12 weeks if they are taking leave for the birth or adoption of a child or to care for a sick parent. 8. When foreseeable, requests for a leave of absence or any extension of a leave of absence should be submitted in writing to the Human Resources Director. Employees on approved leave are expected to report any change of status in their needs for leave or their intentions to return to work to the Human Resources Director. In addition, employees requesting leave due to their own serious health condition or the serious health condition of a family member 86 must provide medical certification of the serious health condition; and when the leave is a result of the employee's own serious health condition, a fitness for duty report to return to work. The City may deny leave to employees who do not provide proper advance leave notice or medical certification. 9. If an employee fails to return to work at the conclusion of an approved leave of absence, including any extension of such leave, the employee will be considered to have voluntarily resigned from employment. 87 John E. Pate FMLA January 2021 - August 2021 TIME OFF POLICY Annua l Banked Grandfathered Vacation 0 0 Personal Sick Vacation 274 .27 12 AV AILABLE TAKEN 8 172 .7 8 68 FM LA Hours 480 88 392 hours remai ning "THE GREAT CITY" Matthew Pipit Mayor Veronica Wilila►ns Vice Mayor Sherelean Bass Commissioner Alvin Burke Conmtissioner Joseph Kelley Commissioner John E. Pate City ►1/anager Joanna Flores City Clerk B► ruadelle Norris -Weeks City Attorney January 28, 2021 John Pate Dear Mr. Pate, Please accept this letter as an official approval of your request for intermittent Family and Medical Leave (FMLA). FMLA permits a total of 480 hours within a 12 month period. Your current eligible balance of leave for FMLA is 480 hours. As previously discussed, you are required to use your sick, vacation, and personal accrued time concurrent with the FMLA. If you have any questions, feel free to contact the Human Resources department. Kierra Ward MBA, HR Director Human Resources Department 1 780 Fisherman Street, 4' FI. I Opa-locka, FL 33054 1 Phone 305-953-2815 ---- Original message From: "John E. Pate" <jpate@Opalockafl.gov> Date: 4/23/21 7:57 PM (GMT -05:00) To: Elected Officials<ElectedOlficials@Opalockafl.gov>, Directors <Directors@Opalockafl.gov>, Sha'mecca Lawson <slawsonia Opalockafl.gov>, "George Ellis Jr." <gellis(i Opalockafl.gov>, "Miguel, Melinda M." <` lelinda.M.Miguel@eog.mvflorida.com>, "Hunter, Brian" <Brian.Hunter@eog.mvllorida.com>, Andrew Axelrad <Andrew(dcpba.org>, Hip Rock Star <jgm4hiprockstar.com>, lholborow@opalockapd.com, "Sergio Perez (OLPD)" <sperez@opalockapd.eom> Subject: My Future in Opa-locka - Potential Termination Good Evening Everyone, It has come to my attention that Mayor Pigatt is polling the City Commission to call a Special Meeting to obtain a census to conduct my annual evaluation and terminate my employment with the City. I have given this city my full undivided attention, even when I am ill and/or in the hospital. I have multiple medical conditions that has caused me to be on FMLA and certain accommodations made related to my health issues. Due to HIPPA, I am unable to disclose my medical conditions. The Mayor has not had any conversations with me regarding my employment or my performance. There are no evaluations on file describing my performance as poor or subpar. There are no employment improvement plans in my file to address any areas of concern nor has the Mayor provided me any opportunities to address any concerns, if they exist. I have taken this city next level and we have improved and excelled in many areas during my tenure as City Manager. When I came to Opa-locka, the wellness of the city was greatly off kilter and I came in a made dynamic changes in a short period of time. I do believe that my relationship with the interactive conversations with me. I have Meeting that he is calling and address his ready and willing to speak to the Mayor. I City Manager, while we are in the middle financial audits. Mayor can and will improve, if he is willing to take the time and have no ill feelings towards the Mayor and it is my hopes that he cancels this Special concerns with me in a way that is substantive and progressive in nature. I am do not want the citizens of Opa-locka to suffer through the search for a new of addressing the operational audit, the four major challenges, and our yearly At the end of the day, I sincerely love each and every one of you in a genuine way and I ask for you continued and unwavering support. I love the Great City of Opa-Iocka and I ask for your continued confidence in my performance as your City Manager. I ask for your prayers because this too shall pass. Kindest Regards, John E. Pate, MS, CM City Manager City of Opa-locka 780 Fisherman Street, 4th Floor Opa-locka, FL 33054 Office Phone - (786) 338-6598 Cell Phone - (786) 829-0739 E -Mail: jpate(a opalockafl.gov i NWU EMP# 44 NWU SPSC# 361 ILETSB-El PER21C# M-221 ILETSB-EI ESTLE21C# E-314 E-MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient(s) only. This e-mail and any attachments might contain information that is confidential, legally privileged, contains law enforcement database information, or otherwise protected or exempt from disclosure under applicable law. If you are not a named recipient, or if you are named but believe that you received this e-mail in error, please notify the sender immediately by telephone or return e-mail and promptly delete this e-mail and any attachments and copies thereof from your system. If you are not the intended recipient or are otherwise not authorized to further disclose this message and its contents, please be aware that any copying, distribution, dissemination, disclosure or other use of this e-mail and any attachments is unauthorized and prohibited. This e-mail and any attached documents may contain Law Enforcement Sensitive material and should not be disseminated outside of official law enforcement channels. The information contained in this message as well as any attachments shall not be released to the media or the general public. Your receipt of this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized disclosure is not binding on the sender or the City of Opa-locka. Public Records Notice: Under Florida Law, email addresses and electronic communications are public records. If you do not want your email address or the content of your electronic communication released in response to a public records request, do not send electronic mail to this entity. 2 off. MEMORANDUM To: Burnadette Norris Weeks, City Attorney Cc: John E. Pate, City Manager From: Sha'mecca Lawson, Executive Assistant to the City Managern, Date: September 7, 2021 Re: Accounting of Leave Time Please be advised, I am the designated approver for the timecards of eighteen employees in the City's ADP system. Included in the employees whose timecards I manage are the City Manager and City Clerk. Whenever the City Manager request leave time (sick, vacation, personal, etc.), I document his time accordingly. I was informed by the Human Resources Department that Mr. Pate was approved for (FMLA) medical leave, therefore when he is out of the office due to an illness I am advised and his time is documented as sick leave. Once Mr. Pate exhausted all accrued sick time I was instructed by Human Resources to utilize his accrued vacation time as this is a common practice used for all City employees. If the City Manager does not physically come to the office and works from home for the day, his accrued time is not used and he receives regular time for that day. In closing, I would like to add that Mr. Pate notifies me daily on his status. *** END OF MEMORANDUM*** Regulations > Title 29 > Chapter V Part 825 Subpart E § 825.500 LI View all text of Subpart E [§ 825.500 - § 825.500] § 825.500 - Recordkeeping requirements. (a) FMLA provides that covered employers shall make, keep, and preserve records pertaining to their obligations under the Act in accordance with the recordkeeping requirements of section 11(c) of the Fair Labor Standards Act (FLSA) and in accordance with these regulations. FMLA also restricts the authority of the Department of Labor to require any employer or plan, fund, or program to submit books or records more than once during any 12 -month period unless the Department has reasonable cause to believe a violation of FMLA exists or the Department is investigating a complaint. These regulations establish no requirement for the submission of any records unless specifically requested by a Departmental official. (b) No particular order or form of records is required. These regulations establish no requirement that any employer revise its computerized payroll or personnel records systems to comply. However, employers must keep the records specified by these regulations for no less than three years and make them available for inspection, copying, and transcription by representatives of the Department of Labor upon request. The records may be maintained and preserved on microfilm or other basic source document of an automated data processing memory provided that adequate projection or viewing equipment is available, that the reproductions are clear and identifiable by date or pay period, and that extensions or transcriptions of the information required herein can be and are made available upon request. Records kept in computer form must be made available for transcription or copying. (c) Covered employers who have eligible employees must maintain records that must disclose the following: (1) Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid. (2) Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA. (3) If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave. (4) Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all written notices given to employees as required under FMLA and these regulations See § 825.300(b) -(c). Copies may be maintained in employee personnel files. (5) Any documents (including written and electronic records) describing employee benefits or employer policies and nrartirne ronarrlinn tho takinn of nairl anal , innairl loa‘ine bo-,,,inL ad the GovRegs apo' (7) Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement. (d) Covered employers with no eligible employees must maintain the records set forth in paragraph (c)(1) of this section. (e) Covered employers in a joint employment situation (see § 825.106) must keep all the records required by paragraph (c) of this section with respect to any primary employees, and must keep the records required by paragraph (c)(1) with respect to any secondary employees. (f) If FMLA-eligible employees are not subject to FLSA's recordkeeping regulations for purposes of minimum wage or overtime compliance (i.e., not covered by or exempt from FLSA), an employer need not keep a record of actual hours worked (as otherwise required under FLSA, 29 CFR 516.2(a)(7)), provided that: (1) Eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months; and (2) With respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee's normal schedule or average hours worked each week and reduce their agreement to a written record maintained in accordance with paragraph (b) of this section. (g) Records and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files. If the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable, records and documents created for purposes of FMLA containing family medical history or genetic information as defined in GINA shall be maintained in accordance with the confidentiality requirements of Title II of GINA (see 29 CFR 1635.9), which permit such information to be disclosed consistent with the requirements of FMLA. If the ADA, as amended, is also applicable, such records shall be maintained in conformance with ADA confidentiality requirements (see 29 CFR 1630.14(c)(1)), except that: (1) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations; (2) First aid and safety personnel may be informed (when appropriate) if the employee's physical or medical condition might require emergency treatment; and (3) Government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request. (h) Special rules regarding recordkeeping apply to employers of airline flight crew employees. See § 825.803. AUTHORITY: 29 U.S.C. 2654; 28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment Act of 1990); and Pub. L. 114-74 at § 701. SOURCE. 78 FR 8902, Feb. 6, 2013, unless otherwise noted. CITE AS: 29 CFR 825.500 C) ,,inIc ad the GovR .c;s © 2021 GovRegs About Disclaimer Privacy 0o,k;;,io:7ci the GovRegs aop'