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.

Dads Need Lovin' Too! Father Can Proceed with FMLA Retaliation Claim in "Macho Culture" Lawsuit

Posted by Jeff Nowak on October 30, 2012

macho.jpgDads need lovin' too.  So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer's "macho man" culture was a culprit in his ouster. 

As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law firm.  By all accounts, he had two years of solid performance evaluations and a $30,000 bonus in the year prior to his termination.  Then, he took four weeks of leave to care for his wife after the birth of their child and to bond with his newborn.  (The facts suggest he needed to care for his wife, who suffered from a variety of serious health conditions.)

When Ayanna returned to work, it wasn't the same.  He claims the firm assigned him less work and ridiculed his care-taking ways.  At the time of his termination, the firm even shared that his "personal" issues constituted one of reasons for his ouster.  Ouch.

In refusing to dismiss Ayanna's FMLA retaliation claim, the court clung to the statement above, suggesting that a "reasonable jury could find that the comment was directed at Ayanna's recent need to take FMLA leave."  Also noted as an inconsistency in the employer's story: its claim that Ayanna's low client billable hours also supported his termination.  The problem?  There was evidence that others missed the hours mark, too, and did not suffer the same fate as Ayanna. 

In Ayanna's complaint, he claimed that the firm maintained a "macho culture" where time off to attend to fatherhood and being an "engaged" dad were seen as weak and undesirable.  However, in a nod to the employer, the court bounced this claim, finding that it was too vague to support a sex discrimination claim, which the court dismissed.  Ayanna v. Dechert LLC (pdf)

However, the FMLA retaliation claim now remains for a jury to consider.  The evidence precluding dismissal falls into two usual taboo categories that often trip up an employer when it comes to retaliation claims: insensitive comments that could be viewed as discriminatory and an inconsistent application of discipline to those outside the protected class. 

Insights for Employers

As always, there are lessons to be learned by employers.  The court's decision reminds us of at least two best practices:

  1. As I have stated before, loose lips sinks ships.  If one of the reasons for his termination was indeed his "personal" issues -- that is, taking care of his wife with a serious health condition and bonding with his child -- it created a tremendous risk of liability for the employer.  Note to managers, supervisors, owners, HR professionals and anyone else in a positive to effect a personnel decision:  Stop saying stupid stuff!  I've detailed all too often lately stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made foolish remarks in conjunction with a termination decision.  Don't do it, and train your managers and supervisors to do the same.  This case serves as yet another example of how easily a court will send a case to a jury as a result of one indiscreet comment.
  2. Apply disciplinary criteria consistently.  If you decide that a performance deficiency is particularly troublesome and requires termination, look around the room before lowering the boom.   Are other employees (especially those who have not recently returned from FMLA leave) guilty of the same problem?  If they were not subject to similar discipline or their situation cannot be distinguished in some meaningful way, employers again create significant risk of liability.  Courts don't like it, and juries are even less forgiving.

"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. 

An "Indefinite Reprieve" of Essential Functions of Job Not a Reasonable Accommodation under the ADA

Posted by Jeff Nowak on September 05, 2012

when-is-enough-plenty-orange.jpgIn light of the EEOC's litigation over automatic termination provisions under the ADA (we've beaten you over the head with it here and here), employers generally feel as though they have no clue as to their legal obligations when it comes to providing a leave of absence as a reasonable accommodation under the ADA after an employee's 12 weeks of FMLA leave has been exhausted.  Do they provide two more weeks of leave?  Two months?  3.5 years?  Unfortunately, there is no bright line rule, and despite signals from the EEOC that it intends to publish guidance on "leave" as a reasonable accommodation, it has only flirted with the issue. 

In the meantime, employers rely on well reasoned court decisions to give us guidance as to the length of leave required under the ADA.  Of course, each situation is different, as the ADA requires employers to conduct an individualized assessment of each employee to determine whether a reasonable accommodation would help the employee perform the essential functions of the job. 

Here is one of those "well reasoned" cases for employers.  A recent federal appellate court case makes clear that an employee is properly subject to termination when she cannot provide a reasonable estimate regarding when she will be able to resume all essential functions of her position.

The Facts

Catherine Robert worked for Brown County, Kansas, as a supervisor of felony offenders.  Her job included 18 “essential functions” as listed in her written job description, which included performing drug screenings, ensuring compliance with court orders, testifying in court, and “field work,” which consisted of visiting the homes of individuals who had been released from prison to assist them in their reentry into society.  As a result, the work involved potentially dangerous situations.

Robert experienced severe pain in her back and hips, which later was diagnosed as sacroiliac joint dysfunction.  Walking became impossible, and she needed crutches and a wheelchair to ambulate.  Robert then required a lengthy leave of absence before returning.  Robert resumed her job functions several months later, but soon thereafter, her symptoms returned.  She performed partial duties for some time, and the other officers picked up some of her remaining duties.  Ultimately, she required surgery and another extensive leave of absence.

Roberts' FMLA leave expired on July 5.  (It appears the County also provided additional leave that, in total, amounted to about six months of leave.)  On July 17, her doctor told her that she "might be able to walk with a cane in two to three weeks, and unassisted two weeks after that."  Although it is unclear what medical information actually made it to the employer, the County terminated Robert's employment because she "was unable to return to work at full capacity after her leave ended."  Robert later sued, alleging ADA discrimination (failure to provide a reasonable accommodation) and FMLA retaliation.

The Ruling

In finding for the employer, the Court outlined the employee's burden in showing that a leave of absence is "reasonable."  First, the employee is required to provide "an estimated date when she can resume her essential duties."  Second, the employee's leave request "must assure an employer that an employee can perform the essential functions of her position 'in the near future.'"  The Court cut its analysis short, finding that Robert failed to meet the first prong:

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position . . . the doctor’s prediction that Robert could walk with a cane in a month’s time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork . . .

At the time of her termination, the county did not have a reasonable estimate of when she would be able to resume all essential functions of her employment.  As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. (My emphasis)

Consequently, the court found that Robert was not a qualified individual under the ADA, and it dismissed her ADA and FMLA retaliation claims.  Robert v. Bd. of Commrs. of Brown Cnty. (pdf)

Insights for Employers

There are plenty of good takeaways for employers here:

  1. Like many others have done in similar situations, this court dismissed the employee's ADA claim in large part because she could not provide a reasonable estimation of her return to work.  In other words, she was asking for an open-ended, indefinite leave of absence.  Courts almost always will support an employer's right to terminate employment in instances like these.  Other employers should take note -- when an employee cannot provide a reasonable estimate of when they will again be able to perform their essential job duties, their ADA claims skate on thin ice.  Time and again, courts find that a request for an indefinite or open ended leave of absence is unreasonable as a matter of law.
  2. Me thinks the employer got a bit lucky here.  Recall the reason given for Robert's termination: she "was unable to return to work at full capacity after her leave ended."  Remember a basic tenet of disability law (and one of the EEOC's pet peeves): Requiring that an employee return to work 100% healed or that she return to "full duty" work can raise a host of problems under the ADA, since this position arguably does not assess the employer's need to provide a reasonable accommodation under the ADA.  Before requiring an employee's "full duty" return, know your obligations under the ADA.  See my post on this particular topic here. 
  3. Accurate, robust job descriptions are a must.  Why?  It saved Brown County here.  The court relied heavily on the County's job description for Robert's position, which clearly supported witness testimony in the case.  Notably, the Court gave great weight to the employer’s definition of the essential functions of the job, ultimately pointing to the County's written job description.  This serves as yet another reminder of the need for regular review of job descriptions.
  4. When is enough plenty?  I don't know.  So, keep communicating with your employee.  Don't shut the door on the reasonable accommodation conversation simply because the employee has requested an additional leave of absence.  Keep in mind: the side responsible for the breakdown in the reasonable accommodation conversation typically is the party that loses the lawsuit.  So, don't drop the ball.  Keep talking. 

Employer Best Practices for Analyzing Whether Leave Beyond FMLA is an "Undue Hardship" under the ADA

Posted by Jeff Nowak on July 24, 2012

backpain.jpgThe scenario is all too common: An employee takes and exhausts 12 weeks of FMLA leave and still cannot return to work.  At this point, the employer is left with a dilemma -- does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act?  This series of events is a regular trap for employers and, often enough, an employer gets ensnared in the trap without first analyzing its obligations under the Americans with Disabilities Act.

Let me share an example of an employer who got this situation right, and its approach is an excellent example for other employers to follow.

The Facts

Kathy Henry worked for United Bank as a commercial credit analyst, which required her to ensure the credit-worthiness of borrowers and make recommendations on loans issued by the Bank.  In January 2008, she suffered from spinal cord compression, causing severe pain in her back and neck.  The pain was severe enough that, on July 1 of the same year, she sought a leave of absence and was placed on bed rest.  In late September, as her 12 weeks of FMLA leave were about to expire, Henry provided a note from her physician that stated that she would need to "remain out of work until further notice."

After reviewing the note, the Bank informed Henry that it could not continue to hold her position open indefinitely, and as a result, it terminated her employment.  Shortly thereafter, Henry filed a lawsuit claiming FMLA retaliation and disability discrimination.  Henry v. United Bank (pdf)

Insights for Employers

The court dismissed Henry's claims in their entirety.  The decision itself was not surprising, given that Henry essentially requested an indefinite leave of absence -- one that did not identify when she likely would be able to perform the essential functions of her job. 

However, here's the real value of this case: What I found particularly noteworthy about the employer's approach in this situation is that it documented how Henry's continued absence created an "undue hardship" on its business.  This is a critical step for employers when analyzing their obligations under the ADA.  The Bank was ahead of the curve, identifying early on -- indeed, even as Henry's FMLA leave was wrapping up -- how Henry's extended absence (beyond FMLA) was impacting its business. 

Employers often miss this critical step.  As I have explained in prior posts and in a webinar I held on this topic last year, when an employee requests additional leave after FMLA leave has expired, it is critical that the employer review and document how the employee's request for leave impacts their business and operations and whether continued leave poses an undue hardship.  Employers tend to invite EEOC scrutiny when they give undue hardship no thought. 

Here, the Bank documented that Henry's continued absence posed the following problems, all of which could be used to support "undue hardship" under the ADA:

  • Two other credit analysts and Henry's supervisor had taken on extra work that resulted from Henry's absence, which in turned strained the department;
  • No other employee in the bank was available to temporarily fill Henry's analyst position, causing an overload on the department;
  • Hiring a temporary employee was not an advisable business practice, due to the confidential nature of the client information to which the credit analysts have access and the particularized training involved in preparing an employee to competently perform the job;
  • Analysts' loan review responsibilities were expected to increase because the poor state of the economy had created a need for increased financial documentation when scrutinizing credit-worthiness, thereby emphasizing the need for a regular, full-time analyst to handle this increased load; and
  • The Bank was expecting an increase in new loans, creating further stress on a short-handed staff.

Henry's continued absence created quite a burden on the Bank, and because the Bank actually reviewed and documented this reality, it was in a far better position to make personnel decisions and defend against an employment discrimination lawsuit.  As I have outlined before, employers should consider a host of factors when analyzing whether the requested leave of absence poses an undue burden, such as:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive customer service and increased customer dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers
  • Lower morale

If employers considered all of the above, we'd quickly put the EEOC out of business when it comes to ADA reasonable accommodation claims.  In the meantime, follow the Bank's lead: 1) carefully administer FMLA leave, 2) communicate regularly with the employee while he or she is on FMLA leave, and if additional leave beyond FMLA is requested, 3) individually assess the individual's return to work with or without a reasonable accommodation consistent with the mandates of the ADA, and 4) if you intend to deny additional leave, be prepared to articulate how the continued absence significantly impacts your business operations. 

In the end, don't be blind to your end goal, which is to return the employee to work.  Right?  If you keep your mind on that goal, it's amazing what a little patience and creativity can do.

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 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.

Manager's Loose Lips Sinks Employer's Chances of Dismissing FMLA Claim

Posted by Jeff Nowak on November 15, 2011

Loose lips.jpgWhen 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.   

Supervisor's Inadvisable Email Creates Basis for FMLA Claim

Posted by Jeff Nowak on October 31, 2011

RIF.jpgFile this in your "Don't Do This When Conducting a RIF" folder.  As highlighted by the folks at the Atlanta Employment Lawyer Blog, employers should be wary of eliminating the position of an employee who announces days earlier that he will need several weeks off for surgery.  When the evidence shows that this employee was not targeted for the layoff before he requested FMLA leave, but only after, it may well be enough to allow him to present his claims to a jury.

The Facts

William Shaffer was the Director of Leadership Communications for the American Medical Association (AMA).  In 2008, when the economic downturn was taking shape, the AMA cut internal budgets.  When initial cutbacks were not enough, the AMA slated various staff positions for elimination.  Shaffer's boss indicated that it would be an "obvious choice" to eliminate the position of another employee in Shaffer's Department because this employee's duties had changed significantly and, in any event, the AMA had stopped work on one of his core campaigns.  When Shaffer's boss was asked on October 28 whether Shaffer should be slated for layoff, he did not believe cutting additional positions was necessary, including Shaffer's position.  The decision appeared to make sense. 

However, the boss suddenly had a changed of heart.  On November 20, Shaffer asked for FMLA leave for knee replacement surgery.  Four to six weeks, to be exact.  By November 30, Shaffer's supervisor changed his tune, recommending now that Shaffer's position be eliminated.  Specifically, he stated in an email to his superiors: "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact."  Ugh.   

Not surprisingly, Shaffer filed suit shortly after his termination.

The Court's Ruling

In reversing the decision to grant summary judgment to the employer, the Seventh Circuit Court of Appeals in Shaffer v. American Medical Association held that the supervisor’s "11th hour" decision to terminate Shaffer, as well as the inconsistent decisionmaking as documented (e.g., shredded handwritten notes, notes that were dated months before they were written), could have created a "paper trail" that acted as a cover up to unlawful conduct.  As a result, the court decided that a jury should hear Shaffer's FMLA retaliation claim.

Insights for Employers

The advice might seem a bit obvious here, so let me put it succinctly: 1) When you shift course and decide to terminate an individual not initially slated for layoff (and especially after they request protected leave), your thought process and documentation must be precise and well reasoned; and 2) when you actually document, be consistent, thorough and careful.  What clearly was convincing to the Court was the supervisor's email -- a missive that specifically referenced Shaffer’s request for FMLA leave.  Although Shaffer’s request for leave may have had nothing to do with his actual layoff, the content of the email put Shaffer in a good position to argue that a jury should decide whether the need for leave was a motivating factor in the decision to eliminate the position.  This is yet another example of the importance of FMLA training for supervisors and employees who manage employees with medical conditions.

Failing to Return Employee's Phone Calls May Be FMLA Retaliation

Posted by Jeff Nowak on September 28, 2011

Phone calls.jpgDuring a webinar I conducted last month with the EEOC's John Hendrickson regarding "leave" as a reasonable accommodation under the ADA, I pleaded with, begged, and cajoled employers to maintain regular contact with an employee while he or she is on FMLA leave.  Here is another reason to heed this advice - failing to do so may increase your risk of an FMLA retaliation claim.

As Eric Meyer reports in The Employer Handbook blog, a federal court in Pennsylvania found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is evidence of retaliation.  In Hofferica v. St. Mary Medical Center, the plaintiff was a registered nurse who was approved for intermittent FMLA leave for an unusual medical condition that involved tinnitus, hearing loss and vertigo. 

In September 2008, she took extended FMLA leave to undergo treatment for the condition.  She expected to return by November 6, 2008.  The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates.  However, her supervisor often failed to return the calls.  In early November, she provided a return to work certification clearing her return for November 13.  She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call.  Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.

A really bad move.

Not surprisingly, the employee filed suit claiming, among other things, that the Medical Center retaliated against her for taking FMLA leave.  This claim will now make its way to a jury.  In refusing to dismiss the employee's retaliation claim, the trial court found that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where - as here - such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee."  As such, it could be used as evidence of retaliation.  A scary result for employers, but the decision provides plenty of lessons for employers.

Insights for Employers

  1. As this decision makes clear, it is imperative that employers maintain contact with employees on FMLA leave.  Why go weeks or months without talking with an employee on leave?  If you are communicating with them for the first time on the eve of their return to work, you are only inviting trouble.  Your FMLA policy and forms should make clear that you expect the employee to check in at appropriate intervals, and that you will be contacting them, too!   
  2. In last month's webinar, we covered a fact pattern very similar to this case to help employers understand their ADA obligations when an employee's FMLA leave expires.  Where FMLA ends, employers must be prepared to analyze requests for additional leave under the parameters of the ADA.  Click here for more guidance on this point.
  3. Finally, don't let the supervisor off the hook -- issue discipline if necessary (if they failed to manage this situation properly) and provide additional training.  In Hofferica's case, it appears as though the supervisor completely dropped the ball in (not) communicating with the employee.  Training on FMLA responsibilities is critical.  And for this supervisor, might some additional training on telephone etiquette be in order?

Employee Who Abused FMLA Leave Around the Holidays Properly Terminated

Posted by Jeff Nowak on August 26, 2011

coal-in-stocking.jpgEmployers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays.  In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far.

Douglas Rydalch was a reservation sales agent for Southwest.  When Southwest closed its reservation center in Salt Lake City where Rydalch worked, it transferred him to Houston.  However, his family remained in Utah.  In 2004, Rydalch injured his back, and these issues continued through 2007.  Curiously, Rydalch’s back issues tended to flare up on the days just before or after his previously scheduled time off -- 35 times, to be precise.  What’s worse, he often used FMLA leave on important dates and holidays.  In 2007, for example, he used FMLA leave in conjunction with July 4, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve and his own birthday.  I’m not kidding.

Southwest caught onto the pattern of Rydalch's absences and began monitoring his FMLA use.  It learned that he had a habit of taking flights to and from Utah on the days he requested FMLA leave.  On Christmas Eve 2007, Rydalch's supervisor learned that he again had taken FMLA leave and later learned that Rydalch had been out of town when he called in his absence.  Upon further investigation, the supervisor determined that Rydalch booked a trip to Utah from December 22 to 27.  Thereafter, it was not surprising when Rydalch also called off for a bad back on December 26 and 27, which were his next two scheduled work days.  Southwest suspected that Rydalch misused FMLA leave in violation of the Company's attendance program.  After an internal hearing was held regarding his FMLA use (pursuant to the bargaining agreement governing Rydalch's employment), Southwest terminated Rydalch's employment because he abused FMLA leave.

When Rydalch later filed a lawsuit claiming FMLA retaliation and interference, Santa was waiting at the courthouse steps with a lump of coal.  In quickly disposing of his lawsuit, a federal court in Utah held that Southwest rightfully had an honest belief that Rydalch was abusing FMLA leave and that its termination decision was legitimate.  See court decision here: Rydalch v. Southwest Airlines (pdf).

Insights for Employers

Southwest Airlines isn't considered one of the best places to work for nothing.  An employee who not only abuses FMLA leave, but does so to effectively extend personal time off, raises the ire of co-workers.  Their actions can only have a negative impact on employee morale.  When you dare to take action as Southwest did in this instance, you not only rid yourself of FMLA abuse.  You also enhance employee morale.  Employers can learn much from Southwest's response here:

  1. To some extent (whether great or small), FMLA abuse affects every workplace.  Consequently, employers must be vigilant to identify patterns of abuse and act swiftly to investigate and stop it from occurring.  The costs of ignoring FMLA abuse are far more dear -- they impact employee morale and inflate overtime costs because other employees are left to pick up the slack.
  2. Where FMLA abuse is suspected, an employer has every right to investigate the circumstances and take action if it honestly believes that the employee has engaged in FMLA abuse.  All too often, employers in Southwest's situation feel powerless.  They live with the misconception that they cannot question the employee's reason(s) for leave or investigate any suspicious activity on the employee's part.  To the contrary, the FMLA regulations give employers fairly broad rights to inquire about an employee's reasons for leave and monitor patterns of suspected leave misuse to ensure that the employee's leave is legitimate.
  3. Where possible, consider having an objective participant review and play a role in the investigation and disciplinary action to further bolster the employer's legitimate, non-discriminatory reason for taking action against the employee.  Not all employers have the level of due process that Southwest's bargaining agreements afford, but courts tend to give even greater deference to an employer's termination decision where objective decisionmakers are part of the process.

Happy Father's Day: Dad Claims He Was Terminated After Taking FMLA Leave for Bonding with Newborn Child

Posted by Jeff Nowak on June 20, 2011

fatherhood.jpgAs a father of three, I tend to take interest in "feel good" stories about working parents.  However, in a recent ABA Journal article, an article about a working dad caught my attention for a far different reason.  The article highlighted Ariel Ayanna, who recently filed suit against his employer claiming he was terminated after taking FMLA leave following the birth of his son.  Ayanna v. Dechert LLP (pdf).

The Facts

Ayanna was employed as an attorney at the Boston office of Dechert LLP, an 800-attorney international law firm.  According to Ayanna, he was progressing well within the firm until he took time off under the Family and Medical Leave Act.  Prior to his leave, he had received two years of stellar performance evaluations and a $30,000 bonus in the year prior to his termination.  

During his second year at the firm, Ayanna's wife became pregnant with the couple's second child.  This, however, was no ordinary pregnancy.  Ayanna claims in his complaint that his wife suffers from borderline personality disorder, long-term post-traumatic stress disorder, major depressive disorder and general anxiety disorder.  During the pregnancy, he claims that his wife's personality disorder "deteriorated to the point that she attempted suicide."  Thereafter, upon birth of his child, Ayanna utilized four weeks of paid paternity leave plus additional time provided for under the FMLA to care for mom and baby.

According to Ayanna, when he returned from FMLA leave, his employer retaliated against him by incessantly criticizing and even poking fun at him for being the primary caretaker for his children.  He also claims that the law firm assigned him less work as a result.  On the day of his termination, Dechert gave Ayanna a negative evaluation that he claims improperly called him out for "'personal issues' [that] interfered with his meeting the employment requirements at Dechert." 

Ayanna's complaint is laced with a ton of conclusory blows against his former employer, including an allegation that the firm maintains a "macho culture" where time off to attend to fatherhood and being an "engaged" dad are seen as weak and undesirable.  The law firm has denied all of Ayanna's substantive allegations.  As the ABA Journal article noted, Ayanna's case is one that leave advocates have been waiting years to press in the courts.  Apparently, so was Ayanna.  Notably, in the year before his termination, Ayanna published an article (pdf) entitled "Aggressive Parental Leave Incentivizing: A Statutory Proposal Toward Gender Equalization in the Workplace," in which Ayanna outlined the manner(s) in which men could take (appropriate) advantage of parental leave.  Coincidence?  We'll find out more during the discovery phase of the case.

Insights for Employers

This type of litigation is a bit of a wake up call for employers, since we rarely have seen a working dad wage an FMLA retaliation claim under these circumstances.  However, might more like it lie ahead?  For starters, employers might consider the following to ensure you have maximized your protection against potential FMLA retaliation and sex discrimination claims brought by dads in your workplace: Do you maintain different leave policies for men and women after the birth of a newborn?  Do you provide greater paid maternity leave benefits than paternity leave benefits?  Are men (or women) treated differently because they take the maximum leave amounts for caretaker duties at home (even if it's in that remote department in your organization that no one pays attention to)?  If the answer is yes to any of these, employers are wise to address these discriminatory practices and/or confirm that the difference in benefits is applied for a non-discriminatory reason. 

Cat's Paw Already Impacting FMLA Claims

Posted by Jeff Nowak on April 25, 2011

catpaw.jpgLast 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.

Supreme Court's Ruling On Third-Party Reprisal Claims - Does It Apply To The FMLA?

Posted by Bill Pokorny on January 25, 2011

Supreme Court building.JPGYesterday, 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.

 

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Scared of Liability for FMLA Retaliation? Beware of Bingo Workers!

Posted by Jeff Nowak on October 25, 2010

bingo.jpgEmployers increasingly are finding federal courts to be receptive forums for the consideration of an employee’s retaliation claim.  In Burlington Northern v. White, for instance, the Supreme Court held that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions.  Last year, in Crawford v. Metro Government of Nashville, the Court ruled that an employee who was terminated after she answered questions during an employer’s internal investigation was protected under the anti-retaliatory provisions of Title VII.

The FMLA is no exception.  In his blog, attorney Michael Davey effectively summarizes a recent FMLA and ADA lawsuit brought against Wal-Mart where the federal trial court refused to dismiss an FMLA retaliation claim where Wal-Mart declined to interview Kimberley Stoppi for a management position after she returned from FMLA leave.  Stoppi v. Wal-Mart Transportation, LLC  However, Stoppi provided compelling evidence that other employees who received interviews lacked the transportation experience that she had.  In fact, one interviewee had worked in a dentist's office prior to working at Wal-Mart and another worked in a bingo hall.  After the interviews, Wal-Mart decided not to fill the position at all. 

Had she been allowed to interview for the position, Stoppi apparently was confident she would have hit  B-I-N-G-O.  Nevertheless, Stoppi sued Wal-Mart, alleging among other things that the company retaliated against her by refusing to interview her for the promotion simply because she took FMLA leave.  When explaining its reasons for failing to interview Stoppi, Wal-Mart argued that the individuals interviewed for the job more fully met the qualifications for the position than she did.  However, the court found that a jury might see it differently, particularly in light of the fact that Stoppi provided evidence that several candidates had less supervisory experience than she.  As a result, the court allowed Stoppi to proceed with her FMLA retaliation claim.

Insights for Employers

  1. Don’t retaliate against employees because they have taken FMLA leave.  Not ever.  Never. 
  2. Employers should carefully arrive at and articulate the qualifications for the position under consideration and compare each candidate—independent of FMLA leave and other protected leave they have taken—against these qualifications.  Here, the outcome might have been different had the employer been able to distinguish the plaintiff from other candidates through objective, quantifiable criteria.

Employee Can Advance FMLA Claim Even Though Leave Not Taken

Posted by Jeff Nowak on October 06, 2009

In a ruling that broadens employee protections under the Family and Medical Leave Act, a federal appellate court recently held that an employee may advance FMLA interference and retaliation claims even when the employee requested but did not take FMLA leave. Erdman v. Nationwide Insurance Company (pdf).

The Facts

In Erdman, the plaintiff requested to use vacation time to prepare her daughter with Down Syndrome for the beginning of the school year.  Her employer, Nationwide Insurance Company. denied the request.  Erdman then requested FMLA leave, submitted paperwork in support of her request, and was advised that there were no anticipated problems with her use of FMLA leave.  Approximately one month after she requested leave, but before she took any leave time, Nationwide terminated her employment, citing behavioral problems.  Erdman filed suit against Nationwide, alleging that she was fired for requesting FMLA leave.  Citing earlier court precedent, Nationwide argued that Erdman could not recover on an FMLA retaliation theory because she did not actually take leave.

Court Ruling

The Court rejected this argument, stating that such a result would "perversely allow an employer to limit an FMLA plaintiff's theories of recovery by preemptively firing her."  As such, the court held that that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation.

On a separate issue, the court also determined that a jury should decide whether Erdman was "eligible" for FMLA leave. Despite Nationwide's arguments that she had not worked at least 1,250 hours during the previous 12-month period to be eligible for FMLA leave, the court held that a genuine factual dispute existed as to whether Nationwide was constructively on notice of the hours Erdman worked from home.

Insights for Employers

The Erdman decision highlights a couple of important issues for employers.  Notably, it clarifies that an employee need not actually take FMLA leave to advance an actionable FMLA retaliation claim.  Moreover, it serves notice to employers to carefully account for hours worked outside the office or the normal workday when determining an employee's eligibility for FMLA leave.

Employer May Raise Defense that an Employee is Ineligible for FMLA Leave Even After Leave is Given

Posted by Jeff Nowak on October 06, 2009

Does an employee have the right to take FMLA leave and be restored to the same or equivalent position even though the employer does not employ 50 employees and is not covered by the FMLA?  The answer may depend on the particular court hearing the case, as evidenced by a recent federal appellate court decision.  The Sixth Circuit Court of Appeals recently held that an employer is not precluded from arguing that its former employee was ineligible for FMLA leave even though the employer previously led the employee to believe he was eligible for FMLA leave and later provided such leave. Dobrowski v. Jay Dee Contractors (pdf).

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