FMLA Insights - Guidance & Solutions for Employers

The Department of Labor was serious when it required employers beginning in 2009 to provide individual FMLA notices to employees regarding their eligibility and rights (Notice of Eligibility and Rights & Responsibilities) and whether FMLA applies (Designation Notice). 

Apparently, courts think this is important, too.  And The Wackenhut Corporation learned this lesson the hard way.

The Facts

Jacqueline Young worked for Wackenhut Corporation.  Wackenhut met its general FMLA notice obligations in that it included in its employee handbook a notice to employees of their FMLA rights and also posted the DOL's FMLA poster.  However, when Young sought and took FMLA leave, she took all 12 weeks without having received from Wackenhut a Notice of Eligibility and Rights & Responsibilities and a Designation Notice.  Nothing.  Nada. 

In Young's case, she exhausted her 12 weeks of FMLA leave, and when she failed to return after her leave expired, Wackenhut terminated her employment two weeks later.  When Young filed an FMLA interference claim and later filed a motion for summary judgment, the court ruled in favor of Young.  No jury needed.  Automatic judgment was entered in favor of the plaintiff. 

Why?

The Court held that, per the FMLA regulations, the individual FMLA notices provided to the employee are absolute, and when they are not provided, the employee is prejudiced:

Plaintiff was not afforded the opportunity to make informed decisions about her leave, based on the lack of FMLA notice provided to her by [Wackenhut]. Had she been appropriately apprised of her leave time, Plaintiff could have planned and structured her leave time differently. Thus, Plaintiff did suffer prejudice.

According to the court (not to mention a clear read from the regulations), "individual notice" must be provided to the employee when he/she requests FMLA-related leave or when the employer acquires knowledge that an employee's leave may be for an FMLA qualifying reason.  29 CFR 825.300(b). When the employer fails to do so, it suffers the consequences.  Young v. The Wackenhut Corporation (pdf)

Insights for Employers

When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), this is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, the employer must provide the following notices or risk getting whacked like Wackenhut:

1. Eligibility Notice. Once an employee notifies an employer of an FMLA qualifying medical leave, including the birth of a child, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days” of ascertaining that her leave may be for an FMLA-qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(l). 

Right and Responsibilities Notice. Whenever the Eligibility Notice (above) is provided, “Employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. . . Employers are also expected to responsively answer questions from employees concerning their rights and responsibilities under the FMLA.” 29 C.F.R. 825.300(c)(1).

Employers can access this Notice here.  (Notice of Eligibility and Rights & Responsibilities)

2. Designation Notice. Within five days of when an employer has enough information to determine whether the employee’s leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and will be counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4).

Employers can access this Notice here.  (Designation Notice)

Employers: training your staff about their responsibilities under the FMLA is essential.  When they forget these responsibilities, a simple oversight of the kind here can be extremely costly. 

As a management side attorney, I love when FMLA cases provide real, practical takeaways for employers that help them better administer FMLA leave.  Yesterday was one of those days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith effort to turn the certification in on time.  In its decision, the court explained for employers the various ways the employee could have shown that she was attempting in good faith to return medical certification. 

The Facts

Ronita Brookins was employed by Staples Contract & Commercial, Inc. to review customer orders for credit card fraud.  Sadly, she also grappled with breast cancer.  She beat the cancer the first time, but it returned several years later.  During this later period, Brookins had a serious of suspect, unexcused absences that put her on the verge of termination.  When Staples called the attendance problems to Brookins' attention, she informed the Company for the first time about the recurrence of the cancer and insisted that many of the absences were related to her treatment.  Giving her the benefit of the doubt, Staples asked Brookins to provide medical certification, which was due back to Staples with 15 calendar days.

When Brookins didn't return the certification on time, Staples gave her another seven days.  And another extension after that.  About one month after Brookins should have returned the certification, Staples decided to convert her absences to unexcused leave and, as a result, it terminated her employment.  Brookins later filed FMLA interference and retaliation claims.

The Ruling & Insights for Employers

Under the FMLA regulations, employers have the right to request and obtain complete and sufficient medical certification to support an absence due to an employee's alleged serious health condition.  The employee's obligation to return this medical certification is fairly clear:

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  29 C.F.R. § 825.305(b)

If the employee does not provide certification, the FMLA regulations allow the employer to deny FMLA coverage to the employee until the certification is provided.  Thus, any absences in the interim are unexcused and could subject the employee to termination.

Here, Brookins blew the 15 day turnaround.  So, she could save her FMLA claim only if she could establish that she was engaging in diligent, good faith efforts to return the certification on time.

Employers regularly ask me -- what precisely are diligent, good faith efforts?  Let's start with what Brookins did here to obtain certification: she called her two primary physicians and asked them to complete the certification.  When they flat out refused to complete the form, Brookins did nothing further to obtain certification.  Literally nothing.  Nada.  This was hardly impressive to the court.

The Brookins court suggests what the employee could have done to show that she was engaging in diligent, good faith efforts to obtain complete and sufficient certification:

• When Brookins initially was rebuffed by these two physicians, she could have contacted them again, explaining the importance of completing the certification.
• She could have asked any one of three other additional specialists she visited with during her treatment to complete the form.
• She could have mailed the form to any of these doctors.
• She could have delivered the form in person to any of these doctors.
• Perhaps most significant to the court: she should have contacted her employer to explain her difficulties in obtaining timely certification and requested an extension before the 15-day deadline expired.  (In her case, she didn't seek an extension until after the deadline passed.)

Because the court found that Brookins did not make diligent efforts to obtain certification, it dismissed her FMLA claims, finding that the exception to the 15-day rule did not apply.  More importantly, the ruling gave employers a guide map when determining whether their own employee has engaged in "diligent, good faith efforts" to obtain certification.  Brookins v. Staples Contract & Commercial, Inc. (pdf)

Cheesy moment alert:  I must confess a moment of weakness here -- perhaps it's my Catholic guilt setting in a bit on Ash Wednesday, but I can't help but feel a bit for Ms. Brookins' situation, since it appears as though her primary care doctors' refusal to complete the form is what likely did her in.  As she battled breast cancer for a second time and now was rebuffed by her two main doctors, obtaining medical certification had to be a low priority for her.  Nevertheless, the FMLA rules apply to Brookins just as they do any other employee in far less empathetic situations.

And Brookins didn't follow the rules.  As harsh as it may seem to some, it's the correct ruling.   

Employers and fellow FMLA nerds, consider this an early holiday present: Courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.  

This is a longer than usual post, but hang with me, as I share some best practices below.  

Take the situation of Sara Jaszczyszyn.  (We'll call her Sara, for short.)  Sara worked for Advantage Health Physician Network as a customer service representative where she spent most of her day talking with customers by telephone.  As the result of a car accident several years earlier, Sara experienced back pain, which began to worsen shortly after her employment started. 

Sara first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four "flare ups" per month and that each flare up could last anywhere from a few hours to a few days. When they occurred, Sara could not perform all of her job functions.

After obtaining this certification, Sara took it as carte blanche to remain absent for a continuous, open-ended period of time.  After early September, Sara remained absent.  

While Sara was on FMLA leave, she attended "Pulaski Days," a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara's co-workers weren't amused, since they "were covering for her" (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren't, several of Sara's co-workers complained to their boss, who then viewed the Facebook pictures.  

We know how this story ends, right?  Indeed!  Days later, Sara's employment was terminated.

Sara's FMLA Claims are Dismissed because the Employer Flawlessly Handled the Situation

After her termination, Sara filed FMLA interference and retaliation claims against Advantage. However, these claims were quickly dismissed.  

Why?  Because the employer responded precisely in the manner it should.  

After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was "completed incapacitated."  

Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her "complete incapacitation" and the Facebook photos.  Sara's response?  She "was in pain at the festival and was just not showing it."  After that excuse failed miserably, her next response was telling.  You guessed it: silence.

Insights for Employers

What must an employer establish when it terminates an employee for FMLA abuse?  That it had an honest belief the employee was engaging in fraud. In other words, it must show that it reasonably relied on the particular facts at issue, even if the employer is later proven to be mistaken in its belief.  An employer effectively advances this defense only when it conducts a complete and exhaustive investigation into the alleged facts.  

Here, Advantage's investigation served as Defense Exhibit A in dismissing Sara's FMLA claims because it was able to show that it conducted a complete and exhaustive investigation into the facts at issue. Look above at Advantage's investigation: it confirmed the scope of Sara's need for FMLA leave; it asked Sara explain in her own words what her limitations were; it had her acknowledge the importance of combating fraud in the workplace; and then, after obtaining these admissions, it lowered the boom by introducing the Facebook pictures. At that point, did Advantage really even need to inquire further? Sara's underwhelming response when faced with the pictures was evidence enough. See the court's opinion in Jaszczyszyn v. Advantage Health Physician Network (pdf) here.

I regularly remind my clients: even when you have have caught an employee red-handed in fraud or inappropriate conduct, there is absolutely no substitute for a complete and exhaustive investigation into the facts.  Why?  Courts and juries insist on it.  It simply is human nature to assume that all employees will be afforded some level of due process -- i.e., the chance to respond to the allegations and defend themselves -- before a termination decision is made. When employers don't afford an employee this opportunity, the risk of litigation and an adverse ruling increases significantly.  Follow Advantage's lead, and set yourself up for a strong defense.

Still interested in how an employer can effectively advance an "honest belief" defense?  We'll cover this topic head on during our December 6 webinar, which you can register for here.

By now, you're really interested in seeing Sara's Facebook pics, aren't you?  Eric Meyer of the Employer Handbook has them here.

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification? 

Here's a real life application of this question:  Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she was sexually harassed at work, she sought leave to be treated for post-traumatic stress disorder.  Shortly thereafter, her physician sent the employer a note indicating that she was being treated for this condition and "would be unable to return to work yet." 

The employer played by the rules.  As required under the FMLA regulations, after it was put on notice by Miedema of the possible need for FMLA leave, her employer issued a Notice of Eligibility and a medical certification form, which was to be completed by her health care provider.  Fifteen calendar days came and went, and the employee had not returned the certification.  Spectrum contacted the employee shortly after the expiration of the 15-day period to remind her of the need to submit certification.  However, the employee still did not return the certification.   

No Soup for You!

In these situations, where the employee fails to return certification, the regulations clearly state "No Soup for You!"  Well, something close, at least: if the employee never returns the certification, according to the regs, "the leave is not FMLA leave."  29 C.F.R. 825.313(b).  Here, Miedema suffered the consequences.  Because she did not return the medical certification, her employment was properly terminated, despite clear evidence that she otherwise suffered from a serious health condition.  As a result, her FMLA interference and retaliation claims were dismissed.  Miedema v. Spectrum Catering & Concessions

Interestingly, the court also rejected the employee's argument that she should not have been terminated because the employer did not explicitly tell her in the follow-up letter (after she missed the 15-day deadline) that her employment would be subject to termination for failing to return the certification.  The court found no such obligation in "follow-up communications," however, since the employer already had informed her of the consequences when it initially provided the blank certification.

Insights for Employers

Spectrum followed the rules and won.  Other employers should follow its lead:

1. Identify a potential FMLA absence at the earliest opportunity and issue the proper FMLA notice and medical certification.
2. When the employee fails to return completed certification within 15 calendar days, send the employee a letter informing them of their oversight and giving them a new deadline to return the certification.  (Make it a fairly tight one -- I typically recommend seven days.)
3. Give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn't turn it in on time.
4. When the employee doesn't cooperate despite your own efforts to seek compliance, know that you have treated the employee fairly and have given him/her every opportunity to comply.  At this point, termination of employment often can be an appropriate option. 

When an employee takes FMLA leave, is an employer obligated to adjust its performance standards so as to avoid penalizing the employee?  According to a recent federal court decision, the answer is Yes.  And failing to do so sets the employer up for an FMLA interference claim.

The Facts

Take this situation: Jeff was a salesperson for a company that manufactured corrugated packaging products.  Pagel began experiencing chest pain and labored breathing, causing him to undergo a battery of tests.  Tests revealed a blockage in a portion of his heart, and he was later admitted to the hospital to treat the blockage.  Five days before his scheduled heart procedure, Jeff met with his bosses to discuss his year-to-date performance.  The bosses weren't happy: they had observed a noticeable decline in Jeff's sales revenue and volume over the past two years and his year-to-date numbers were even worse.

Jeff didn't agree with his bosses' assessment, claiming in large part that the employer didn’t adjust his sales expectations for the time he took FMLA leave.  The meeting ended with a stern warning to Jeff: improve your performance or face termination.

Several weeks later, while Jeff was in an Iowa medical clinic for follow-up tests, his boss contacted him and informed him he would be traveling to Jeff's sales territory the following day to tag along on some sales calls.  There was one critical issue -- sales calls typically were scheduled one week in advance to give the client enough notice and the employee enough time to prepare.  Jeff had no time to set up a full day of calls or to prepare for them.  Ultimately, Jeff and the boss made two client visits the following day.  By all accounts, Jeff did not perform well.

As these stories tend to go, Jeff was terminated shortly thereafter for continued poor performance, including the awful sales calls with his boss.

The Ruling

Jeff filed an FMLA interference and retaliation claim, and the Court refused to dismiss it.  Pagel v. TIN, Inc. (pdf).  Interestingly, the Court noted:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.

Particularly troublesome to the court was evidence that: 1) the company terminated Jeff for not meeting sales expectations, even though he was absent a number of days for FMLA-protected treatment; 2) his boss relied on inaccurate data in finding that he not meet some of the company's reporting requirements; and 3) the boss insisted on making client sales calls even though the standard approach required one-week advance notice to the client, which could indicate that the boss was setting Jeff up to fail.

Insights for Employers

Surely, I can be accused at times of drinking the employer cool-aid, but I wonder whether the actual facts here lie somewhere in the middle.  Put aside the few weeks of FMLA leave that Jeff took, his sales numbers declined for two years!  Had the employer took action just a few months earlier, it arguably would not have faced any liability at all, since no employer has to live with an employee who misses the mark for such a prolonged period of time.

However, the timing of these events, the failure to account for FMLA leave in its performance standards, and the insistence of a sales ride along on short notice was enough to sink the employer.  A few words of caution in these situations:

1. Eric Meyer puts it well: the employer failed to hire slow and fire fast.  In other words, the employer should have acted long before Jeff's heart blockage to identify performance issues and communicate them to the employee.  By pushing off the conversation about continued performance problems, employers shoot themselves in the foot.
2. Employers should adjust performance standards during an employee's FMLA leave.  Why?  Because courts say so! 
3. Don't set yourself up for a retaliation claim.  The employer here may very well have been frustrated with Jeff's prolonged deficient performance, but creating a separate set of performance expectations for an employee taking FMLA leave is a recipe for disaster.  For example, if the standard is to set up sales calls one week in advance to give the client and employee time to prepare, give the employee time to do so.  Setting an unlevel playing field for the employee in this situation significantly increases the risk of a retaliation claim.

Employers beware: Just when an employee gives you the left jab, look for the right hook.  The combination of the two, as far as the Family and Medical Leave Act is concerned, can knock employers out.  As reported by my colleague, Scott Cruz, last week, an employee may be able to add up two medical conditions -- neither of which would alone constitute a serious health condition under the FMLA -- to take FMLA leave.

Facts

Consider these facts, as reported by Scott: Angela Fries worked for a marketing company as a telemarketer and suffered from genital herpes and interstitial cystitis (I had to look it up: it's an inflammation of the bladder wall).  On a Friday, she missed work because of alleged pain and frequent urination.  The next day, she claimed to have difficulty urinating and by the evening could not urinate.  On Sunday, Fries went to the emergency room, where her doctor attributed her urinary retention issue more to the herpes than to the interstitial cystitis.  The ER doctor installed a catheter, prescribed medications, and instructed her to take off Monday and return to work on Tuesday. 

While at the ER, Fries texted her supervisor and informed her that she was in the hospital and had a doctor’s note supporting the need to miss work on Monday.  Apparently not a fan of genital herpes, Fries' supervisor texted her back, informing Fries that if she missed work on Monday, she would be terminated.

Guess what happened next?  Fries was initially suspended for missing work on Monday and later terminated after she threatened to sue.  In a move that should never ever (repeat: NEVER) be repeated again, the Company sent her a termination letter, which stated, in part:

Originally was suspended for 30 days, threatened to sue company and management.  It was then decided that termination was the best.

To make matters worse, Fries' boss later testified in a deposition that her termination was motivated "a little bit" by her threat to sue the Company.

Court Ruling

Not surprisingly, Fries brought an FMLA interference and retaliation claim against her former employer.  The Company argued that Fries did not have a serious health condition under the FMLA because she was not incapacitated for more than three days.  Specifically, it argued that Fries’ interstitial cystitis caused her urinary issues on Friday and Saturday and her herpes caused her inability to urinate on Sunday and her Monday absence.  If you do the math, the employer suggested, neither condition resulted in Fries being incapacitated for three or more days.

The Court rejected the Company's arithmetic.  Acknowledging that each of Fries’ medical conditions alone may not have incapacitated her for three or more consecutive days, the court found that two conditions (which alone do not constitute a “serious health condition”) can together rise to the level where they are “temporally linked” and affect the “same organ system.”  As for Fries' retaliation claim, the court concluded that because the employer admitted that Fries’ threat to sue was at least “a little bit” of the reason for her termination, and her termination letter stated that Fries only was going to be to suspended until she threatened to bring a lawsuit, a jury could conclude that it violated the FMLA by retaliating against her for threatening to sue.  Check out the court decision here: Fries v. TRI Marketing

Insights for Employers 

A couple of obvious takeaways:

1. As the court stated in this decision, when reviewing an employee's medical condition within the context of FMLA, the employer's focus should be on the cumulative, adverse effects of the related medical conditions afflicting the employee at the time she seeks leave from work.  In a nutshell, two can equal one.
2. When you make foolish, foolish comments in a termination letter that reek of retaliation, you will pay the price -- almost every time.  File this suggestion in the common sense folder: Don't ever draft a termination letter that states anything along the lines of "threatened to sue ... termination is best."  Back in the day, the nuns would give us a swift swat on the knuckles for that, and make us stand the rest of the day with our nose flush against the blackboard.  Such places are a lonely existence.  Don't be the employer that meets the same fate.
3. When you find that you want to terminate an employee even "a little bit" because they threatened to sue, you need to (honestly) identify a non-discriminatory reason for the termination.  And if you are an attorney reading this post, take additional time next time to prepare your decisionmaker for his deposition!

When making difficult decisions about eliminating jobs, senior management surely may disagree as to "who" is cut and how it's done.  However, after the decision is made, it is critical that management collectively support the decision and refrain from public dissension.  When that dissension is shared publicly or with the affected employee, it can spell disaster. 

Take a situation involving Laura Makowski.  Makowski was employed as Marketing Director by SmithAmundsen LLC, a Chicago-based law firm.  In December 2007, during the massive economic downturn, Makowski took maternity leave.  One month later, during a firm retreat in January 2008, the firm's executive team decided to eliminate the positions held by Makowski as well as the firm's IT Director.  The Executive Committee charged Molly O'Gara, Director of Human Resources, with the task of consulting outside counsel on the termination decision.  O'Gara considered herself the "boss" with respect to HR policies and compliance and was regularly consulted on termination decisions. 

According to Makowski, when she returned to pick up her belongings in early February after being terminated, O'Gara met her at the elevator.  Shockingly, Makowski claims that O'Gara told her that she "was let go because of the fact that [Makowski] was pregnant and took medical leave" and that Makowski was one of several at the firm who were let go because they were pregnant or took medical leave.  O'Gara allegedly didn't stop there, suggesting that Makowski should consult with an attorney, since there "might be the possibility of a class action."

Ouch.

You know how the rest of this story goes.  Last week, a federal appellate court in Chicago ruled that Makowski's FMLA interference and retaliation claims (as well as a pregnancy discrimination claim) would not be dismissed, and that a jury must determine whether O'Gara's comments help establish that the firm interfered with Makowski's FMLA leave and ultimately terminated her because of her pregnancy and the use of FMLA leave.  Makowski v. SmithAmundsen (pdf)

Insights for Employers

A few lessons to be learned:

1. Whenever possible, involve senior management in RIFs and other employment terminations.  This should include your senior HR executive.  It is unclear from the case whether O'Gara was involved in the actual decision to terminate (or whether her sole task was obtaining employment counsel's blessing).  However, when senior executives are not consulted on significant business decisions, it can breed resentment.  Resentment manifests itself in a variety of ways, such as a manager who blows off steam about the decision in public or to the affected employee.
2. Loose lips sink ships.  After the debate has ceased and management has made the personnel decision, it is critical that any dissenters support the decision of the whole or that of the decisionmaker.  The public front should be collective, and the message consistent.  Clearly, we don't know all of the facts at issue in Makowski's situation.  However, if O'Gara's comments are true, she obviously allowed her personal opinion to become public.  In turn, it created a tremendous risk of liability for the firm, a decision that now will be placed in the precarious hands of a jury.
3. A no-brainer reminder to HR professionals: Be exceedingly careful when discussing with the employee the reasons for his/her termination, as this conversation will be dissected over and over again and used by the employee's attorney as evidence of alleged discrimination or retaliation.  Whenever possible, seek the guidance of employment counsel in framing the reasons communicated to the employee so that you ultimately reduce the risk of liability.   

For several weeks now, attorneys and legal academics across the country have dissected the U.S. Supreme Court's Wal-Mart v. Dukes (pdf) decision, which shut the door to a 1.5 million class of current and former female Wal-Mart employees who are claiming that they were denied pay increases and promotions because of their gender.  In striking down class certification, the Supremes held that there was no commonality among the member of the class, that is, no "glue" that tied all of their discrimination claims together.

The Wal-Mart decision underscores the heavy burden plaintiffs have when pursuing a case on behalf of others in a class action.  Surely, employers will use the Wal-Mart decision to fight class certification on the basis that the members of the proposed class lacks commonality.  In a post-Wal-Mart era, plaintiffs seeking to advance a class action will be forced to narrow the scope of the class and focus on policies and practices that are specific and clearly establish a discriminatory effect on a class of individuals. 

Might an employer's FMLA practices provide just what a plaintiff needs to withstand the scrutiny of the Supreme Court's exacting standards for class certification?  Unlike many other statutes, the FMLA requires employers to adhere to a multitude of exacting rules, any one of which can trap an employer.  If an employer's FMLA administration runs afoul of the FMLA, it could prove to be the "glue" that the Supreme Court insists is required to tie together the claims of an entire class.  Whereas the Wal-Mart class was rejected because the plaintiffs pointed to rather amorphous, vague policies of discrimination as the basis for their class action, it seems that a class of plaintiffs may have an easier time attacking a specific FMLA policy or practice whose effect creates harm across an entire group of employees.

Two recently filed proposed class actions suggest that at least some plaintiff-side employment attorneys are thinking the same thing: 

• Last week, two former AT&T employees filed a proposed FMLA class action in federal court in San Francisco, alleging that AT&T maintains a "total absence policy," whereby FMLA-protected absences are counted against an employee just like any other absence.  In Beard and Guerrero v. AT&T (pdf), Andre Beard and Gloribel Guerrero allege that AT&T "blacklists" employees when they reach the bottom 30% of the Company's monthly absence calculations.  Thereafter, the plaintiffs claim that employees in this category are harassed, denied promotional opportunities and "targeted" for termination.  Perhaps taking a cue from the Wal-Mart holding, the plaintiffs propose a narrowly-defined class: non-managerial and first-level managers at the Company's call and collection centers who took FMLA leave and were in the bottom 30%. 
• Earlier this year, a proposed class of current and former Sysco employees filed suit in federal court in Chicago, claiming that the Company (through its third-party administrator, Work & Well) has continuously violated the FMLA by insisting that employees provide more medical information than is legally required in the FMLA medical certification and clarification process. In Arango v. Sysco Chicago, Inc. and Work & Well, Inc. (pdf), the plaintiffs claim that Sysco requires its employees to provide medical information such as their prescribed medications, dates of upcoming doctor appointments and detailed information regarding any medical procedures performed.  When employees do not provide the requisite information, the plaintiffs claim that Sysco denies FMLA leave, designates the related absence as unexcused and subjects the employees to a variety of adverse employment actions, up to and typically including termination.  Discovery in this case has just begun.

I share these lawsuits not to suggest that they have any merit or that they are even worthy of class certification.  It's much too early to tell.  Moreover, the employers in these cases have plenty of good arguments to make, and the discovery process will bear that out.  However, these lawsuits simply illustrate the potential for a surge in FMLA class actions as plaintiffs' attorneys get their hands around the Wal-Mart mandate. 

Insights for Employers

So, what is an employer to do?  Several suggestions come to mind:

1. It is imperative that employers consider whether (and how) their FMLA policies and procedures expose them to claims that can be advanced by a group or class of employees.  Strongly consider conducting a comprehensive audit of your entire FMLA administration to ensure your procedures do not violate the regulations and expose potential class claims.  A couple questions might help to guide your analysis:
   • Does your leave request form elicit necessary information without delving beyond the medical condition at issue?
   • Are you requesting more medical information than allowed through the FMLA's medical certification form or the regulations?
   • Are you using the clarification/authentication process as a tool to convince the employee's health care provider that an employee's serious health condition is not valid or not as severe as stated in the medical certification? 
   • Do you require blanket authorization to communicate with the employee's health care provider before medical certification is due or before the employee has the opportunity to cure deficient certification?
   • What medical information do you require upon an employee's return to work?  Does your practice comport with the FMLA's return-to-work rules?
   • As to those employees who have taken FMLA leave, are there a disproportionate number who have been denied promotional opportunities or terminated (for unexplained reasons)?
   • How does your FMLA policy mesh with your attendance and other leave policies?  Are there inconsistencies?
2. Closely analyze your relationship with any third-party administrator that conducts FMLA administration on your behalf.  Do you know how your TPA handles the questions above?  If not, find out.  Keep in mind that the employer ultimately is on the hook for the TPA's FMLA administration.  Thus, the lines of communication between employer and TPA must constantly remain open so that you are able to obtain information, as necessary, and that you are partnering with the TPA on particularly difficult FMLA scenarios.
3. I know I sound like a broken record, but ensure that your managers are properly trained on their responsibilities in FMLA administration.  Although front-line managers may play little to no role in the FMLA process, they are your eyes and ears of potential FMLA abuse.  Conversely, their inappropriate comments or poor handling of an FMLA situation may create significant liability.

Last month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue.  Known as the “cat’s paw” theory, it already is having an impact on claims brought under the Family and Medical Leave Act. 

As the folks at the Ohio Employer's Law Blog point out, just days after the Staub decision, the reach of the Supreme Court's ruling already has impacted an FMLA case.  In Blount v. Ohio Bell Telephone Co., the employer maintained a "performance management system" that disciplined employees for failing to meet certain goals.  Managers were given wide discretion to decide whether to issue discipline when an employee did not meet set goals.  In Blount, two employees who had recently taken FMLA leave sued after they were terminated for failing to meet certain goals under the performance management system.  In short, the employees claimed they had been treated differently than other employees who failed to meet the same goals but were not terminated.

In defending the claim, the telephone company claimed that the decision to terminate the employees came from top-level management, not the employee's direct supervisors.  Thus, the employer claimed that any alleged biased from the lower-level managers had no bearing on the ultimate termination decision.  The Court disagreed:

Even if the decision to punish and terminate resided higher in the supervisory chain, . . . the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub (discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

As a result, the Court allowed the employees' FMLA retaliation claims to be considered by a jury.

Insights for Employers

The Blount decision serves as a reminder to employers that employee allegations of illegal bias by managers should be independently investigated, regardless of when and at what point in the discipline process the allegations are raised.  Clearly, a senior-level officer generally can and should rely on the recommendations of lower-level managers when deciding whether to issue discipline or terminate an employee.

However, an employer must tread carefully where there are claims of bias against a manager recommending discipline.  Might the result have been different had the telephone company investigated the claims of bias before terminating the employees?  In doing so, the telephone company could have tested the accuracy of the claims and determined whether the employees' terminations were independently justified and not tainted by any bias.  Such an investigation also would have made for a better record for the company to defend in litigation. 

The decision also is a gentle reminder that training of managers and supervisors is vitally important to combat litigation.  A dollar spent now on training will save a whole lot more later.  Be sure to include some space in your 2011 budget for training.

When an employee's request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA.  When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection. 

Such was the case for Robert Righi.  In a fantastic opinion for employers, a federal appellate court recently upheld the dismissal of Mr. Righi's FMLA claim because he failed to respond to his supervisor's telephone calls inquiring about his need for a leave of absence.  Righi v. SMC Corporation of America

The Facts

Righi, a salesman for SMC Corp., was the primary caretaker for his mother, who regularly suffered complications from diabetes.  As a result, Righi often took FMLA leave to care for her.  On the occasion at issue, however, he asked for time off after his mother accidentally overdosed on her medication. 

Continue Reading

An employee enrolled in an addiction treatment program need not be under a doctor's care or actually staying at a rehab institution to qualify for FMLA leave, according to a federal court in Texas.  Picarazzi v. John Crane, Inc. (pdf)

The Facts

Plaintiff Perry Picarazzi, a customer service representative for John Crane, Inc.(JCI), had a history of alcoholism, and his alcohol problems clearly led to absenteeism problems in March 2008.  As a result, he was issued a number of "points" under JCI's attendance policies, which led to progressive discipline.  However, JCI failed to issue this course of discipline until the day it also issued a final warning to Picarazzi, which occurred mere days before his termination in late June 2008.

Continue Reading

Yesterday, the U.S. Supreme Court ruled that an employee allegedly fired in retaliation for a a sex discrimination charge filed by his fiancée could sue his employer under Title VII of the Civil Rights Act of 1964. Because the Court's reasoning could arguably be extended to retaliation claims under the FMLA, covered employers should take note. Thompson v. North American Stainless (.pdf).

The Decision

Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless ("NAS"). In February 2003, the EEOC notified NAS that Regalado had filed a charge alleging sex discrimination. NAS fired Thompson three weeks later. Thompson then filed his own EEOC charge and later filed suit in U.S. District Court, alleging that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court dismissed the case, holding that "Title VII does not permit third-party retaliation claims." Thompson appealed. A three-judge panel of the Sixth Circuit Court of Appeals reversed the District Court, but after rehearing the full court voted to affirm the District Court's ruling by a vote of 10 to 6. The majority reasoned that Thompson could not sue for retaliation because he did not engage in any activity protected by Title VII. Thompson then appealed to the Supreme Court.

In an 8-0 decision (Justice Kagan did not participate), the Supreme Court reversed the Sixth Circuit's ruling. In an opinion by Justice Scalia, the Court observed that Title VII's anti-retaliation provision is broader than the statute's substantive anti-discrimination provisions. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin "with respect to ... compensation, terms, conditions, or privileges of employment" and discriminatory practices that would "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee." In contrast, the anti-retaliation provision prohibits an employer from "discriminating against any of his employees" for engaging in protected conduct, without further specifying what acts are prohibited.

Continue Reading

According to a recent ruling by the 9th Circuit Court of Appeals, an employee may have a valid wrongful discharge claim under the FMLA even if she fails to actually request FMLA leave, based upon evidence that her employer was aware that she had cancer and discussed whether she had taken FMLA leave shortly before her termination. Kinney v. Holiday Companies.

Continue Reading

Suppose a retailer declares bankruptcy. Several of its leases are sold off to another retail chain, which then remodels the stores, stocks them with its own merchandise, and opens them under its own name. If this retailer hires some of the bankrupt company's employees, are those employees new hires under the FMLA, or might they have the right to take FMLA leave immediately, without waiting 12 months or working 1250 hours for the new company? 

Continue Reading

When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.

Continue Reading

Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. Determining whether an employee's request for leave meets this requirement is a difficult proposition, particularly when the employee appears to be using the request to avoid instructions or shield himself from discipline. A recent decision of the 6th Circuit Court of Appeals sheds some light on the subject, and affirms that an employee cannot avoid discharge for insubordination merely by claiming that he had a headache and needed to go home. Gipson v. Vought Aircraft Industries, Inc. (.pdf).

Continue Reading

The Department of Labor's recent Administrative Interpretation regarding FMLA leave for those acting in loco parentis to a child placed the spotlight on the application of FMLA leave to same-sex couples with children. However, the ruling did not address how the FMLA applies to situations where an employee seeks FMLA leave to provide care not for a child, but for a same-sex partner or spouse. However, two recent ruling by a federal court in Massachusetts may redefine the term "spouse" for purposes of FMLA leave, at least in states that recognize same-sex marriages. 

Continue Reading

Two recent federal appeals court decisions highlight the importance of providing employees with clear, accurate information about their FMLA rights. First, the U.S. Court of Appeals for the Eighth Circuit recently held in Kobus v. The College of St. Scholastica, Inc. that a painter employed by the college could not prevail on his FMLA claims because he failed to return a completed medical certification form confirming that he had a serious medical condition. The court focused on the fact that the college's policies and the plaintiff's supervisor clearly advised the plaintiff of the certification requirement. 

On the other hand, the U.S. Court of Appeals for the D.C. Circuit ruled in McFadden v. Ballard Spahr Andrews & Ingersoll, LLP (.pdf) that a plaintiff could proceed on her claim that her employer interfered with her FMLA rights by giving her incorrect information about the amount of FMLA leave she had used. 

Continue Reading

If the need to keep careful track of FMLA paperwork was not already obvious, a recent decision from a federal district court in Ohio emphasizes the perils of misplacing an employee's FMLA certification. Wellman v. Sutphen Corp.

Read on to find out how to avoid the same mistakes.

Continue Reading