DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

Posted by Jeff Nowak on April 18, 2013

rapids flip over.jpgWhen an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe. 

A water bottling company recently learned this the hard way. 

Peter Lyle was a route driver for "O Premium Waters," a company that provided bottled water.  In December 2009, Peter took FMLA leave, which was approved by the Company.  During his leave of absence, Peter's employer was acquired by D.S. Waters (d/b/a "Sparkletts"), also a water bottling company.  According to the Department of Labor, Sparkletts was a nearly identical company to its predecessor for purposes of the FMLA, so there should have been no break in FMLA coverage for Peter and any of his co-workers. 

Rather than return Peter to work upon conclusion of his FMLA leave, Sparkletts sent Peter down the raging rapids of termination.  What did the DOL find to be a big part of the problem here?  The new water bottling company retained 87 percent of the drivers from the previous company.  So, something was fishy here.  According to a DOL investigation, it determined that Sparkletts had a legal obligation to allow Peter to complete his FMLA leave and to restore him to the same or equivalent position, as required by the FMLA. 

The Court Case and Decision

In one of just a handful of FMLA cases recently filed by the DOL, it brought suit on behalf of Peter.  (Access the complaint here (pdf).)  After discovery between the parties, the DOL and the employer agreed to a consent judgment, which essentially is a type of settlement that ends the litigation with a judgment that is enforceable against the employer.  (Access the consent judgment here (pdf).)

Take note of the penalties involved: the consent judgment required Peter to be reinstated to his position, paid back wages and reimbursed for his medical expenses, which otherwise would have been covered had he remained employed. 

Insights for Employers

This lawsuit and consent judgment provide several pearls of wisdom for employers:

  1. Come on employers, we can get this right!  Whether it's an acquisition or reduction-in-force, employers should seek legal counsel where terminations are at issue.  Although we don't know all the facts here, this doesn't seem to be a close call.  Of course, FMLA leave itself does not act as a shield against any adverse action, but employers should have a darn good reason (with supporting documentation) for terminating an employee while he or she is on FMLA leave. 
  2. Is this a sign of things to come for the DOL?  The DOL's FY 2014 budget calls for more resources dedicated for FMLA enforcement, and the DOL's solicitor's office already has indicated we will see an increased number of FMLA lawsuits filed by the government in the time ahead.  Moreover, as we see in this case, the DOL will not hesitate to seek a broad range of damages -- even reinstatement -- where appropriate.  This reality makes it critical that employers self audit their FMLA policies, practices, and forms to ensure compliance with the FMLA and its regulations.  The regulatory and enforcement environment is only going to get more difficult in the time ahead, so money budgeted now for self-audits and training is money well spent. 
  3. Where acquisitions occur, pay attention to the "successor employer" regulations.  The FMLA regulations have very specific rules regarding whether a successor employer is bound by the FMLA obligations of the previous company.  Therefore, the acquiring company is well served to conduct the appropriate due diligence and seek legal counsel on their obligations as a successor employer under the FMLA and other employment laws.  For reference, the FMLA's "successor employer" regulations are as follows:

§ 825.107   Successor in interest coverage

(a) For purposes of FMLA, in determining whether an employer is covered because it is a “successor in interest” to a covered employer, the factors used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Adjustment Act will be considered. However, unlike Title VII, whether the successor has notice of the employee's claim is not a consideration. Notice may be relevant, however, in determining successor liability for violations of the predecessor. The factors to be considered include:

(1) Substantial continuity of the same business operations;

(2) Use of the same plant;

(3) Continuity of the work force;

(4) Similarity of jobs and working conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment, and production methods;

(7) Similarity of products or services; and

(8) The ability of the predecessor to provide relief.

(b) A determination of whether or not a successor in interest exists is not determined by the application of any single criterion, but rather the entire circumstances are to be viewed in their totality.

(c) When an employer is a successor in interest, employees' entitlements are the same as if the employment by the predecessor and successor were continuous employment by a single employer. For example, the successor, whether or not it meets FMLA coverage criteria, must grant leave for eligible employees who had provided appropriate notice to the predecessor, or continue leave begun while employed by the predecessor, including maintenance of group health benefits during the leave and job restoration at the conclusion of the leave. A successor which meets FMLA's coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave.

Employee's Lack of Diligence in Obtaining Timely Medical Certification Destroys Her FMLA Claim

Posted by Jeff Nowak on February 14, 2013

giddy.jpgAs 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.   

Bad Timing: Can an Employer Terminate an Employee Shortly After Requesting FMLA Leave?

Posted by Jeff Nowak on December 20, 2012

fired1.jpgAs a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee.  Often enough, the situation goes something like this:

My operations people want to terminate Fred.  He has flown off the handle one too many times, and now, we think we caught him misreporting his time worked.  He received a mediocre performance review a few months back -- some good, some bad.  And his problems continue.

But here's the problem: Two days ago, he asked for FMLA leave.  We can still terminate him, right?

The coincidence is uncanny: a request for FMLA leave just as the employee is about to be handed the pink slip.  It's one of the biggest headaches for any HR professional or in-house counsel.  The timing of the request stops the employer dead in its tracks, and rightfully so.  By terminating an employee immediately after he/she requests FMLA, the employer undoubtedly wonders whether it will find itself on the wrong end of FMLA interference and retaliation claims.

All is not lost!  Recently, a federal appellate court determined that an employer lawfully terminated an employee just two days after he requested FMLA leave.  The guidance from the court is instructive to employers handing these kinds of touchy situations.

The Facts

Frank Brown, a customer service operations analyst for ScriptPro, was a mediocre employee.  In June 2008, he received mixed performance reviews, which noted his excessive Internet usage, his lack of respect for personal boundaries in the workplace, and that he was argumentative and abrasive with co-workers.  After the review, his performance issues continued through September 2008.  Notably, he was belligerent toward a customer and failed to complete a critical project on time.

Later that fall, on November 19, 2008, Brown asked for time off to attend his wife's doctor's appointment.  Instead of providing the FMLA leave, however, his employer terminated his employment two days later on November 21 because of "unresolved, previously discussed performance issues."

The Ruling

Plenty of courts have found that the timing of a termination decision -- especially two days after an FMLA leave request -- often is persuasive evidence to establish that the employer's decision may have been motivated by the leave request.  To overcome this hurdle, the employer must "provide[] undisputed evidence that [the employee] would have been terminated regardless of this or any other FMLA-protected request."

Here, the court found that the employer met this burden by pointing to: 1) Brown's mixed performance review; and 2) his continued performance problems after the review in the months leading up to his FMLA request.  Brown v. ScriptPro (pdf)  As a result, Mr, Brown's FMLA claims were properly dismissed.

Insights for Employers

This is a good win for employers in what I think is a really close case on the facts.  What was ScriptPro's key to success here?  Documentation of the employee's performance problems in his review and continued documentation of his performance problems thereafter.  When it comes to effective performance management and defending yourself in litigation down the road, there is no substitute for objective and comprehensive documentation of an employee's performance issues. 

So, ready yourself when you call your employment attorney prior to terminating employee: what documentation do you have to support the basis for your termination decision?  Much more often than not, your success in court will depend on it.

What!?! Time Caring for Mom in Las Vegas is FMLA Leave

Posted by Jeff Nowak on November 26, 2012

vegas.jpgThe FMLA just got a whole lot broader.

In what might be one of the key FMLA decisions of the year, a federal judge has upheld an employee's right to take FMLA leave to care for her mother during a recreational trip to Las Vegas.

Yep . . . you read it correctly.  Employee + her mother + their trip together to Vegas = FMLA leave

The Facts

The story isn't all that complicated.  Beverly Ballard was a swimming instructor.  She also had a mother who was diagnosed with end-stage congestive heart failure and was not expected to live.  Beverly was the primary care giver for her mom: she was responsible for preparing her meals; administering her mom's insulin shots and medicine; operating a pump to remove fluids from her mom's heart; bathing her mom; providing her transportation and ensuring she made it back and forth to and from her bed. 

Beverly later learned that a local charitable organization had granted her mother a "make a wish" trip to Las Vegas because she was terminally ill.  According to Beverly, the six-day trip would require her own absence from work because she would need to care for her mom during the trip.  Beverly's employer denied her request for leave, but Beverly went anyway.  In addition to administering her mom's medicine and generally looking after her while in Vegas, Beverly also "spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants."  Beverly fully acknowledged that her mom was not heading to Vegas for medical care, therapy or any kind of treatment.  Put simply, it was a vacation exclusively for her mom. 

Beverly's employment was terminated for unauthorized absences.  She later filed suit, alleging that her employer interfered with her ability to take FMLA leave.

An FMLA Conundrum

We've grown used to courts dismissing these kinds of cases.  Recall the Tayag case, where the court dismissed an FMLA lawsuit because the employee's trip with her seriously ill husband to meet with a "faith healer" in the Philippines also was spent visiting socially with family.  By and large, courts tend to dismiss FMLA lawsuits where the family member for whom the employee is caring is not seeking treatment at the remote destination. 

That said, I have been worried about a case like Beverly's.  Not necessarily the Vegas part (but these facts don't help).  I've been worried that a court actually would allow an employee to travel on a recreational trip to care for a family member.  The cynical side of me frets over the proverbial flood gates opening to allow any FMLA abuser to scam FMLA leave simply by taking mom on their next trip to Disney World or to climb Mt. Kilimanjaro. 

But the court reviewing Beverly's situation bucked the authority preceding it, finding that it didn't matter where Beverly was providing the care -- so long as she was providing it.   (Read the court's decision here.)

Do you know what bothers me the most about this decision?  That I can't necessarily disagree with it.  Many courts before this one have read into the FMLA an obligation that treatment be part of any trip that requires travel away from home.  Yet, as this court pointed out, the FMLA only requires that Beverly seek leave to "care for" her mom, who had a "serious health condition."  Here's the imporant part of the court's written opinion:

There is no question that [Beverly's mom] suffered from a covered "serious health condition," and was unable to care for her own basic medical, hygienic, or nutritional needs or safety.  There is also no question that the services [Beverly] provided her mother at home [long list of services] constituted, at the very least, physical care within the meaning of the FMLA.  It follows, then, that Ballard also "cared for" her mother during their trip to Las Vegas because her mother's basic medical, hygienic, and nutritional needs did not change while she was there . . .  

So long as the employee provides "care" to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.  Accordingly, . . . a reasonable jury could find that [Beverly] "cared for" her mother within the meaning of the FMLA during the time she spent traveling to Las Vegas.

Insights for Employers

Wow.  A case like this one screams out for some DOL guidance on the issue, as employers rightly fear that a decision like this one -- as reasoned as it is in this instance -- is a "get out of jail free" card for those who abuse FMLA leave.  Until then, employers should keep the following in mind:

  1. In light of the Ballard case, treatment is not required where an employee is obligated to care for a family member with a serious health condition.  So, employers clearly take a risk when they allow FMLA leave only when the trip includes some form of medical care, treatment or therapy.
  2. As a result of this reality, employers must ensure that certification clearly indicates that care by the employee is medically necessary.  If the certification is incomplete or inadequate, use the tools available to you to authenticate and clarify the certification.  Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days).  Where they fail to cure the deficiency, consider obtaining their permission to talk directly with their family member's health care provider to obtain the information.  In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider.  Having the appropriate certification on file will deter would-be FMLA abusers from seeking a quick FMLA fix.
  3. Let the obvious situations go.  Call me squishy here, but when an employee's mom is terminally ill and she's seeking leave to care for her while she goes on a "make a wish" trip, let her go and use your time and effort to fight a different battle.  

In the meantime, feel free to mutter under your breath, "Serenity now"!

"No Soup for You!" If An Employee Doesn't Turn in Medical Certification, FMLA Leave is Not Protected

Posted by Jeff Nowak on October 19, 2012

soup nazi.jpgLast 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 Has an Employee Provided Sufficient Notice of the Need for FMLA Leave?

Posted by Jeff Nowak on September 13, 2012

emergency-room-sign.jpgOften enough, HR professionals tell me that they have a difficult time recognizing when an employee has provided adequate notice of the need for leave under the Family and Medical Leave Act.  A recent court case reminds us that: 1) the threshold for requesting leave is not that high; and 2) employers have an obligation to ask questions to determine whether FMLA leave may be at issue.

In Lichtenstein v. University of Pittsburgh Medical Center, the plaintiff, Jamie Lichtenstein was employed as a psychiatric technician.  She appears to have been better known as an employee with an awful attendance record.  In the three months leading up to her termination, she was absent twice, tardy six times and switched shifts constantly.  This pattern largely is irrelevant to this discussion, however.  (I just needed to add a cynical thought to suggest that the employer isn't entirely to blame for everything that follows.)  Interestingly, as Lichtenstein skated on thin ice for attendance issues, she called her supervisor prior to a scheduled shift and shared the following:

Currently in the emergency room . . . my mother had been brought into the hospital via ambulance, and I am unable to work today.

The supervisor taking the call simply noted in the attendance log, "sick mom."  Four days later, the Medical Center terminated Lichtenstein.

The Ruling

Notably, the Court found that, by notifying the Medical Center that her mother had been taken to the emergency room, Lichtenstein did not provide enough information for her employer to conclude that she needed leave to care for her mother due to a serious health condition.  The analysis, however, did not end there.  The Court held that the employee had given the employer enough information to conclude that the FMLA may be in play.  As a result, the Medical Center had an obligation to inquire further to determine whether FMLA leave was necessary.  Because it did not, and shortly thereafter terminated the employee, it raised an inference that the employer took the action so as to interfere with Lichtenstein's FMLA rights.  Lichtenstein v. Univ. of Pittsburgh Medical Center (pdf) 

Insights for Employers

The Lichtenstein case follows a growing line of cases that seems to put the onus on employers to ask the questions necessary to determine whether the FMLA is applicable.  The lesson here? Stay in touch, ask questions (especially when the request is vague or ambiguous) and insist that the employee maintain contact with you (pursuant to your call-in policies) to communicate the timing and duration of his or her absence.  Keep in mind: employees are not required to specifically state "FMLA" as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play, and to inquire further if there is any ambiguity in the leave request.  When there is doubt, ask the questions.  In doing so, you likely have decreased your liability.

Editorial comment: Who was the real killer was here?  The supervisor who took the call from Lichtenstein and who later wrote in the attendance log, "sick mom"!  Even the most skilled HR professional or attorney is unlikely to read this entry and conclude it constitutes an FMLA event.  Time and again, the supervisor taking the call from the employee creates the greatest risk of liability for the employer.  A gentle reminder -- whoever is responsible for taking the phone calls must be trained and well versed in FMLA administration.  In this case, that simple oversight may have cost the employer hundreds of thousands of dollars in legal fees and a potential judgment. 

Employee's FMLA Leave Requires an Employer to Adjust Performance Standards

Posted by Jeff Nowak on August 29, 2012

used_cars_1980_685x385.jpgWhen 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.

Supervisor's Comments After Employee Seeks Leave for Hysterectomy Creates Viable FMLA Claims

Posted by Jeff Nowak on July 09, 2012

fired.jpgRemember a few months back when I warned employers to be wary of eliminating the position of an employee who days earlier requested several weeks off for surgery? 

Let me take that advice one step further: if an employee informs you that she needs leave to undergo a hysterectomy, don't tell the employee it's "not a good time to take leave," and then urge her to read the book titled, No More Hysterectomies.

File this one under the category of "Employers do inexplicable things that cause them to be sued."  Here's a brief summary of the rather interesting facts: Brenda Drew, a stellar employee of 15 years, informed her supervisor at Quest Diagnostics that she would need a leave of absence to undergo a hysterectomy.  In response, her supervisor allegedly made the above comments. 

While on FMLA leave, Drew found out that her domestic partner had cancer.  Shortly thereafter, while Drew was still on leave, a Quest Human Resources staff member contacted Drew to inform her that she would be terminated in a reduction-in-force after Quest lost a significant client contract.  Unfortunately, the HR generalist continued talking, suggesting to Drew that the termination might be a "blessing in disguise," as she would have more time to take care of her partner, and that, in any event, Drew "would not be able to give 100% to her job anyway."

Gulp.

Despite these untimely and inexplicable comments, they didn't by themselves do Quest in.  Even more compelling to the court was the manner in which Quest chose employees to be terminated as part of the RIF.  Drew wisely pointed out that discipline issued to another employee did not factor in the RIF, but discipline issued to Drew was one of the factors in her dismissal.  This evidence of disparate treatment created doubt about Quest's explanation that it chose employees for the RIF based on performance evaluations and discipline.  From the court's perspective, this evidence -- along with the various comments made to Drew -- was enough to allow Drew to present her FMLA claims to a jury.  Drew v. Quest Diagnostics, Inc. (pdf)

Insights for Employers

Whether it is negative comments made about an employee after FMLA leave is requested or rating performance differently as a result of FMLA leave (when there is no evidence to indicate as such), employers fail to dismiss a case short of trial typically for the most obvious of reasons.  I write the obvious here, but bear with me:

  1. When employers use specific, objective criteria in a RIF (e.g., performance reviews, recent discipline, etc.) as they should, these criteria must be applied consistently to examine every employee subject to the RIF.  Where exceptions are made (such as counting discipline for some and not for others), they must be documented thoroughly and be defensible so that a court (and potentially, a jury) later can understand, distinguish and accept them.  Treating employees in similar situations in a different manner is a recipe for disaster.  Assistance of in-house or outside employment counsel is a must in these instances. 
  2. Mind your communications.  As the court pointed out, Quest ultimately may convince a jury that Drew's discipline was compelling and the cause for the RIF.  To be clear, by all accounts, Quest disputes that these comments were ever made, and it will have the chance to prove its side at trial.  However, alleged comments of the kind here by Drew's direct supervisor and Quest's HR generalist give a reviewing court such an easy basis to allow a case to go to a jury.  In any event, these are not the kind of communications an employer wants to present to a jury.  Enough said.
  3. One issue that troubled me about the court's decision was its suggestion that discipline of an employee with a spotless track record may itself be evidence that something is afoul.  I don't buy into this, but it's not the first time a court has provided this kind of reasoning.  Does it mean that long-term, stellar employees are untouchable?  Surely not; however, in light of decisions like these, employers are well-advised to review discipline of these employees closely to ensure something is not amiss.
  4. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law.  (Thanks for the suggestion, Stacy S!)  Investing a couple hundred bucks now to conduct effective FMLA training will maximize your chances of saving tens of thousands when the real life situation presents itself.

Two Medical Conditions Can Equal One FMLA Serious Health Condition

Posted by Jeff Nowak on May 22, 2012

2Equals1f.jpgEmployers 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!

FMLA FAQ: Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave?

Posted by Jeff Nowak on April 05, 2012

Q:  We have an employee who works four days per week.  He regularly calls off work one day every other week due to his chronic bad back.  Can we require that he "make up" his day off later in the workweek?

A:  The FMLA regulations do not give us any clear guidance as to whether an employer can maintain a policy that requires or even encourages employees to "make up" FMLA leave.  However, the regulations (and several court decisions) make two general principles very clear: 1) employers cannot engage in conduct that discourages or otherwise "chills" an employee from requesting or taking FMLA leave; and 2) employers must provide privileges and benefits to employees who take FMLA leave in the same manner they offer benefits to those on non-FMLA leave.

Let me be blunt: requiring employees to make up FMLA leave is fraught with problems and invites litigation, as a court would very likely find that such a policy causes employees to refrain from requesting FMLA leave (because they are forced to make up the time on a different day).  I am reminded of a few cases that generally highlight the point: 

  • A few years back, we highlighted McFadden v. Ballard Spahr, a case in which the plaintiff claimed her employer misinformed her of the amount of FMLA leave she was entitled to, and then harassed her for taking leave.  The court found that, where an employee can demonstrate that she would have taken more available FMLA leave had the employer not engaged in this conduct, she could assert an FMLA interference claim.
  • Take a look Grosso v. Fed Ex. Corp. (pdf) as well.  In that case, Grasso was provided all the FMLA leave he requested to care for his ailing father.  However, he also claimed that Fed Ex told him he was taking too much FMLA leave and that he needed to return to work.  The Court found that Grosso had provided enough evidence to show that Fed Ex had attempted to discourage the employee's use of FMLA leave and allowed the claim to go to a jury.

In the context of a policy or practice requiring employees to make up time taken as FMLA leave, these cases above give me some pause.  Can you picture this scenario: 

Employee: I'm calling off today because of my chronic bad back.  So, I'll take it as an FMLA day.

Boss: Well, Sonny, that's fine, but you know we like people who take these one-off FMLA leaves to make up the time later in the week.  It's all good, cause then you'll get your full pay for the week.  Now, tell me, what day can you come in later this week?

Employee:  Uh...well, I dunno.  I would need to find child care for my child who has uromysitisis poisoning.  Ummm, well, it's probably too much trouble.  On second thought, I'll just come into work today.  I'll be there by the start of the shift. 

Boss: Sounds good, Sonny.  Good decision, I say.  See you in a few.

Wham!  In seconds, the boss -- who was just following Company policy -- has created an FMLA interference claim.  Even if the employee had taken FMLA leave and agreed to make it up later in the week, might we have a situation like McFadden or Grosso above, in which the employee could show that the exchange between the boss and him above had a chilling effect and caused him to refrain from requesting FMLA leave in the future?  I think the employee has a good argument.

With this guidance in mind, for those employers out there that still maintain a policy that allows employees to make-up time to replace lost wages (as a result of unpaid FMLA leave), its absence/make-up policy should clearly identify that: 1) scheduled work missed as a result of FMLA leave will still be counted towards the employee’s FMLA allotment, and make-up time is allowed to compensate for lost wages (again, in the event FMLA leave was unpaid); and 2) make-up time is not required.  Employers should consider prohibiting make-up time if the FMLA leave ran concurrently with paid leave, such as sick or vacation time.

On the flip side, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges. Keep in mind one of the two principles I outlined at the outset: the FMLA regulations require employers to provide benefits to employees on FMLA leave in the same manner offered to those on non-FMLA leave.

What's your practice in this situation?  I welcome your feedback on whether a make-up policy has worked for you.

FMLA FAQ: Does an Employer Violate the FMLA When an Employee Answers E-Mail or Telephone Calls While on Leave?

Posted by Jeff Nowak on March 05, 2012

ygmlogo.gifQ:  An employee who recently returned from FMLA leave claims that a portion of his leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out.  Can we still count this time as FMLA leave?

A:  I have fielded this question from several employers lately, so I figured I would tackle it head on.  In this situation, what an employer is worried about is FMLA "interference" -- the idea that the employer is denying the employee FMLA benefits to which he otherwise was entitled. 

In a nutshell, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a "professional courtesy" that does not interfere with FMLA leave.  Therefore, a few  work-related communications likely will not constitute interference with an employee's FMLA rights.  As one federal court in New York put it, when an employee is passing on "institutional knowledge" or providing closure on open assignments, employers do not violate the FMLA. 

What about the employee who is answering e-mails and calls without the boss' knowledge?  Generally good news for employers here, too.  Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so.  Soehner v. Time Warner Cable, Inc.

Insights for Employers

1.  There are no hard and fast rules about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions (where they can find the company business plans, for example) or to wrap up a job the absent employee was working on.  Also, as evidenced in the Soehner case above, it is unlikely to be an FMLA violation where the employee is working behind the boss's back.

Tread carefully here, though.  If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work. 

2.  Watch out for possible FLSA issues where an employee performs work while on leave.  For best practices on the wage and hour side, see my colleague Bill Pokorny's post on our Wage and Hour blog here.

FMLA FAQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

Posted by Jeff Nowak on January 19, 2012

woman_pregnant_child_stomach_brother_sister.jpgQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida.  In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009.  However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda's employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation). 

The Court grappled with whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months) could advance an FMLA interference claim.  For the Court, the answer was quite clear: Yes, she can.  In answering the question, the Court first looked to the regulation regarding eligibility: 

"The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start." 29 C.F.R. § 825.110(d).  

So, the answer is easy enough: when assessing an employee's eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin.  If an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,” the employee could advance an FMLA interference claim.  Pereda v. Brookdale Senior Living Communities (pdf)

Insights for Employers

There are several takeaways for employers on this issue: 

  1. Keep in mind that the FMLA requires a 30-day notice for foreseeable leave.  This is particularly true for the birth of a child.  An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.
  2. A gentle reminder -- don't treat your employee differently after the leave request has been made.  According to Pereda above, she claims to have been harassed, disciplined for attending prenatal appointments (an FMLA no-no!), and inappropriately placed on a performance improvement plan.  Of course, an employer can and should insist that their employees meet legitimate performance expectations, but retaliating against the employee after she requests leave not only violates the FMLA, it results in a dejected employee who will have no desire to work for you again.
  3. Note: If an employer grants leave before the employee becomes eligible under the FMLA, any leave taken in the first year cannot be counted against the employee's FMLA allotment.  See my prior post on this subject.
  4. Eric Meyer of The Employer Handbook points out several other lessons from Pereda case that are worth reviewing.