stupid boss commentThere may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut.

The latest edition involves Debby and her boss, Jason.

I can’t tell precisely what Debby did for her employer, Wells Fargo, but it’s safe to say she interacted with a number of Wells Fargo’s clients and had a sales quota. That’s enough background for this story because it is undisputed that clients began complaining extensively about Debby, and she fell miserably short of her sales goal. Nearly half way through the sales year, Debby had only met about 11% of her entire sales goal.

That’s not good.

As these stories go, shortly after being told that she was “off track” in nearly every work category, Debby took medical leave for five weeks due to a medical procedure performed on her neck. The time off did not rejuvenate Debby. Upon her return, her performance further deteriorated to the point that termination was the only option. Wells Fargo had all the ammo it needed — more client complaints, poor sales numbers and that fact that Debby simply wasn’t trying anymore.

Unfortunately for Wells Fargo, however, Debby’s boss snatched defeat from the hands of victory. In an email recommending Debbie’s termination, he outlined her performance issues but inexplicably added that Debbie’s termination “was justified because ‘Debby submits a request for medical leave.'”


Last month, a court refused to dismiss Debby’s FMLA claims, finding that the boss’ email is evidence that she may have been terminated because she took FMLA leave. Stewart v. Wells Fargo (pdf)

Insights for Employers

Let’s not dwell on these facts any longer. Let’s move straight to the lessons learned, shall we?

1.  Employers, Your Front Line Managers Are Killing You.  For me, the most powerful line in this court case wasn’t the boss’ foolish email. Rather, it was his acknowledgment in his deposition that he was “not really familiar with FMLA leave” because he was “on the front line.”


Employers, your front line managers like the one here are ticking time bombs. Sure, they generally are very good people, and they mean well. But you also put them on the front lines with no FMLA training whatsoever. So, why are you surprised when your managers send emails like the one above?

Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

2.  Remember that similarly situated employees can sink your FMLA case. The court refused to dismiss Debby’s case for the additional reason that other employees also missed their sales goals and were not terminated like Debby. Before you hit the termination button, it is critical that you compare the employee at issue to those she will be compared to. Are others missing their sales mark or otherwise under-performing? How do you differentiate them? Call your employment counsel and strategize before you make the decision.

bullyI hate bullies.

Back in 4th grade, Sister Mary Demetria, OSF, told us that “hating” someone was a sin.

I’m convinced Sister never met a bully.

Forgive me, Father, for I have sinned. Cause, you see, whenever I read about a bully getting a good smack down, I get all warm and fuzzy inside.

Such is the story of Tim, a manager for Tyson Foods. Over the course of several years, Tim had all the makings of a bully: in 2010, he was disciplined for intimidating a subordinate; in 2011, he was disciplined for openly harassing another employee; in 2012, he again was admonished for threatening an employee with termination for their (legitimate) use of overtime.

What followed in 2013 was the last straw: according to multiple employees, Tim intimidated and was condescending toward others around him, he undermined a supervisor by calling him out in front of others, and otherwise acted unprofessionally toward his co-workers.

Upon considering Tim’s latest conduct, Tyson had enough and quickly terminated his employment. In this era where individuals tend not to take accountability for their actions, Tim filed suit, alleging that Tyson terminated him, in part, because he had just taken FMLA leave a few weeks earlier.

Not so fast, bully,” said the court. Well, it didn’t really say that, but it would have been way cool if it had. Still, the court dismissed Tim’s FMLA retaliation claim in a New York minute, finding that there wasn’t a scintilla of evidence that Tyson was motivated by Tim’s FMLA use when it terminated his employment.  Shell v. Tyson Foods, Inc. (pdf)

Sweet justice!  As with every bully smack down, there always are lessons to be learned:

Insights for Employers

1. Don’t shy away from terminating an employee who has recently requested or taken FMLA leave. Employers often are gun shy about disciplining an employee while the employee is on FMLA leave and/or after they have requested leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Employees facing discipline or termination regularly use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. But don’t let their would-be FMLA shield cause you to act differently. In other words, carry on with disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave. In doing so, it often will be critical to show that you have engaged in progressive discipline with the employee before and after the employee requested and/or took FMLA leave.

Here, Tyson’s reasoning was sound.  For some length of time, Tim simply was awful to his co-workers and failed to meet Tyson’s reasonable expectations. This conduct continued through his eventual termination, despite the employer’s continued patience. In the end, this employee (and others like him) simply cannot show that the FMLA had anything whatsoever to do with the termination.

2. But Don’t Rush to Judgment. Where investigations into alleged misconduct are necessary, conduct them! Employers lose when the evidence shows a rush to judgment. See my other posts here and here on conducting lawful investigations where alleged misconduct is at issue.

3.  Similarly, don’t short circuit performance improvement plans (PIPs). If you utilize a PIP for an employee’s deficient performance, don’t accelerate the termination process simply because the employee has taken FMLA leave. Take the case of Sherena, a financial analyst, who was placed on a 60-day performance improvement plan and was told that her continued performance issues could result in termination. After being provided a mid-term review of her PIP at the 30-day mark, Sherena requested FMLA leave.  Rather than giving her a chance to take leave and then finish the PIP, the employer short-circuited the situation, deciding to terminate Sherena’s employment instead.  Not good, as it was clear that the employer did not intend to terminate her employment for her failure to meet the demands of the PIP prior to her taking leave.  Turner v. Florida Prepaid College Board

ugly-sweater-party‘Tis the season for employer-sponsored holiday parties. And I’ve been queried several times about whether an employer should invite to the annual holiday party all of those employees who presently are on FMLA leave.

Several of you are already shouting at me through your computer screen or mobile phone: “Nowak, why the %*#@&* would we ask employees to attend a holiday party when they should be off work?” After all, some might argue that allowing employees on FMLA leave to attend sends the wrong message to the employee’s co-workers that it is permissible take leave from work while at the same time attending an employer-sponsored party and revel with their co-workers.

I enjoyed one comment, in particular, posted on social media on this issue:

In our younger days we were always led to believe that if you called out sick from school then you were not allowed to participate in the extracurricular activities of that day. The same thought should be viewed as adults, in the professional world.


Seriously though, friends.  Let’s not forget we are in the human relations business.

Clearly, if an employee is utilizing FMLA leave for his or her own serious health condition, the employee should not be required to attend an employer-sponsored holiday party. At the same time, an invite to the holiday can be quite a powerful thing — it communicates to your employee that you care about them, you consider them to be part of the team, and that you want to keep them engaged even though they are not presently at work.

Let me take this a step further: Might an employer even have an obligation to extend the invite? While on FMLA leave, the employee still is entitled to enjoy the benefits and privileges of employment, and should be free of discrimination or retaliation because they are on leave. (See 29 CFR 825.220) Therefore, if the employee is able to do so, he/she should be invited and permitted to attend the party.

In the end, it seems to me to make a whole lot of sense.  Don’t you think?

bad-managerKeith was a manager for Costco. By all accounts, he wasn’t a very good employee.  The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.  Consequently, he was placed on a performance improvement plan. Shortly after receiving the PIP, Keith told a subordinate that he planned to take FMLA leave “to secure his managerial rate of pay and position in the event of demotion.” This employee then reported the conversation to the store’s managerial staff because the employee was concerned that Keith was going to “scam” the company. The store promptly demoted Keith to a cashier position as a result of the report.

Two days after the demotion, Keith requested and was provided FMLA leave. During his leave, he requested a transfer to a different store, but his current store refused because he remained on FMLA leave. After his doctor released him to work, he was transferred to a position at a different store.

Keith immediately filed an FMLA and ADA lawsuit, claiming that the Company interfered with his FMLA leave when it demoted him and refused to allow him return to work when he requested.  He also added an FMLA retaliation claim.

Insights for Employers

The problem with Keith’s lawsuit?  Let me count the ways:

1.  The Company demoted him before he took FMLA leave.  Additionally, he did not provide proper notice of the need for FMLA leave when he told his subordinate that he was seeking FMLA leave. Because Keith did not follow the Company’s very specific policy for requesting FMLA leave, his request was not protected under the FMLA.

2.  Even if notice to the subordinate was enough to trigger the FMLA, Keith’s conduct still was not protected because the Company honestly believed that Keith was trying to “scam” the store, as reported by the other employee.  The Court put it this way:

Keith failed to produce any evidence that [his manager], or any other Costco manager, did not rely on the information gained from [Keith’s subordinate] in deciding to demote him. Keith was on a 90-day PIP at the time of his comment to the subordinate.  Costco honestly believed Keith violated its Manager Standard of Ethics by contemplating a fraudulent medical leave, and Keith presented no evidence to dispute this fact.  [My emphasis]

Based on the information it received from the subordinate, Costco surely had the right to suspect that Keith might be abusing leave. Me thinks, however, that Costco dodged a bullet when it did not conduct an investigation into Keith’s alleged comment.  As I have referenced in a previous post, courts typically will support an employer’s “honest belief” defense only after they have conducted a complete and exhaustive investigation into the facts.  The court reviewing this case didn’t fault Costco for failing to conduct an investigation, but the risk is that a different court easily could have, which would have required the Company to head to trial on Keith’s FMLA claims when they otherwise never should have seen the light of day.

3.  What about Keith’s request to transfer to another store while he was out on FMLA leave?  The Court’s response to this issue is helpful in practice for employers: Simply put, employers “are under no obligation to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.”  Here, Keith remained on FMLA leave, so he clearly could not perform the functions of the job — whether at his current store or at another store.  As a result, Costco was well advised to keep Keith on leave and deal with the transfer request when he was able to perform the essential functions of his demoted cashier position.

The Curtis v. Costco court decision can be found here (pdf).

BossHow would you like to work alongside Jim, who engages in the following behavior:

  • He makes a habit of telling co-workers what they are doing wrong, using a degrading tone of voice, and instigates arguments when doing so.  Jim regularly uses a belligerent tone of voice with co-workers.
  • When his supervisor tells him to act more professionally with co-workers, Jim tells him he would “never back down if he felt he was defending himself.”
  • He sends an email to a co-worker, telling him, “You’re my bitch.”
  • When Jim’s wife visits him at work, Jim inexplicably introduces his wife to his co-workers by stating, “This is my bitch.”
  • He tells his boss that there better be no “nonsense” in his performance evaluation.
  • After being repeatedly warned about his inappropriate communications with other employees, Jim sends an email to a co-worker, warning him “to refrain from any sarcasm towards me as you do not have the mental ability to handle any sarcasm that is returned to you.”

After this last email, Jim was terminated because of his inappropriate interactions with other employees. If that wasn’t enough, after he was terminated, Jim refused to leave the premises until the police were called. As he was being escorted out by the police, he shouted out, “You haven’t heard the last of me!”

A fairly easy employee to terminate, don’t you think?  He couldn’t possibly have a viable legal claim against us, right?


You see, at the very time Jim was busy calling a fellow employee his “bitch,” he also was requesting FMLA leave to care for his son. And what was his supervisor’s response to Jim about his FMLA request?  A one-liner:

The Company “paid for [Jim’s] insurance and thus expected him to be at work.”

That’s it. That’s all the boss said. Oh yeah, the boss also allegedly “appeared frustrated and aggravated” when Jim turned in his FMLA paperwork. Whatever that means.

One ill-advised comment.  That’s all it took, since the court reviewing Jim’s FMLA claim found that this one remark (along with the “frustrated and aggravated” look, of course) was enough to allow a jury to consider whether the Company violated the law.  Hefti v. Brunk Industries, Inc. (pdf)

If true, it’s quite a costly comment, as it could saddle the Company with a judgment well into the six figures between attorney’s fees and damages.

Insights for Employers

1.  Mind your communications. The Company may ultimately convince a jury to find Jim as he is — a belligerent employee who deserved termination.  To be clear, the Company disputes that the supervisor ever made the comment, and it will have the chance to prove its side at trial. However, alleged comments of the kind here by Jim’s direct supervisor 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.

2. Another friendly reminder: Prepare honest performance evaluations. Shortly before Jim’s termination, he received a decent performance evaluation, and in particular, he received a “4” out of “5” in workplace behavior. Huh? This smacks of a supervisor who avoided another difficult conversation with the employee. Yet, this positive score seemed to influence the court’s decision in allowing the claim to go to a jury.

3. Training Saves Money. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should include a stern warning against any stray comments of the kind above. 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.

chickenThis one just smells fowl.  Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s supervisor that he “would be absent or late” on December 28. On that same day, Delbert texted his supervisor, stating that he was “having health issues, would be out a few days, and needed to see a doctor.”

Delbert then missed the next couple days of work (Dec 29 and 30), but aside from the one text and his girlfriend’s vague report on December 28, he did not notify Tyson of his absences.  Not a word. On January 2, he was diagnosed with back pain and depression (which, usually go hand in hand, don’t you know?).  On January 3, he returned to Tyson’s health services office with a vague doctor’s note in hand stating “Delbert . . .  has been under my care  . . . for illness and was unable to work.”  At the time, Delbert signed a leave of absence application, which allowed the employee to check one of two boxes explaining the reason for leave — one box for FMLA leave and another box for non-FMLA leave.  The “non-FMLA leave” box was checked on Delbert’s application, although he later denied checking the box.

Tyson investigated Delbert’s time off and determined that he failed to follow Tyson policies for properly reporting his absences.   After all, Tyson call-in policies clearly stated:

“All management team members are expected to personally call their direct supervisor to report an unplanned absence or to report that they will be late.”

Note that the policy does not allow notice by text, by girlfriend, or even by carrier pigeon.  To the contrary, it specifically required Tyson employees to “personally call their direct supervisor.”  Seems fairly straightforward to me, you think?  Tyson investigated Delbert’s absences, and the Company Tyson relied on this policy to terminate Delbert’s employment because it considered all of his December absences to be unexcused.

So, you might understand my surprise when Delbert not only filed suit claiming FMLA interference and retaliation, but that a court found that he had thrown up enough evidence to try his case in front of a jury. Although the trial court had dismissed Delbert’s FMLA claims, the appellate court breathed life into his case, finding that Delbert’s vague text message and nondescript report from his girlfriend could have constituted notice of the need for FMLA leave.

Insights for Employers

Wow, this decision absolutely stinks.  And I use that as a legal term!  Access the court’s short-sighted decision here (Hudson v. Tyson Fresh Meats).

Bucking precedent established by other courts, this court ignored Tyson’s unambiguous call-in policy and allowed an employee ‘s personal texting practice to trump the Company’s call-in policy.  Yet, several other courts unreservedly have upheld policies of Tyson’s kind and specifically rejected FMLA claims where employees reported their absence by text.  If it doesn’t follow the call-in policy, they say, it’s not notice of the need for FMLA leave. Take, for instance, Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf), where the court found that the employee’s text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father who was in the emergency room. Or even Banaszak v Ten Sixteen Recovery Network (pdf), where the employee simply texted that she was not well, and even after much prompting, texted, “As of today, I will be off until July 12th per my doctor for medical reasons.” Here, the court found that even these messages were insufficient to trigger FMLA protections and the plaintiff’s FMLA claims were dismissed.

These might seem like harsh results to some, but the FMLA regulations (requiring employees to follow the employer’s usual and customary call-in policies) are there for a reason.  And as employers, we follow the regulations to be treat our employees fairly and consistently and to ensure predictable results if these practices are challenged in court.  This court decision does not give employers, including Tyson, the result they deserve.

A hard lesson.  But it should be a lesson to the rest of us employers in a few ways:

1.  Texting: The court certainly was influenced by evidence indicating that Delbert and his supervisor regularly communicated by text message and, in particular, on previous occasions when he would be absent.  Keep in mind that an employer can uphold its usual and customary call-in procedures (e.g., requiring that an employee personally call (and not text) their supervisor) only if these call-in procedures are  . . . usual and customary, which means the employer must be consistent in how it handles employee call-ins.  This may be a hurdle for Tyson if its approach was inconsistent.

2.  Leave of Absence Applications: I typically counsel against an employer using a leave of absence application that requires the employee to check a box indicating whether the request for leave amounts to FMLA leave or not.  Why? Do you think the employee actually knows whether the FMLA applies to any given absence or not? Do all of your employees even know what FMLA stands for?  Sure, some or even most of them do, and you have a better argument in those situations that they understood what F-M-L-A meant, but I come across plenty of other employees who don’t.  Therefore, I counsel my clients to use a form that requires the employee to state more specifics about the reason for their absence (for any leave of absence), but not one in which they are required to determine at the outset whether FMLA applies or not.  Your employment counsel should have a model form you can implement right now.  If not, they aren’t an employment attorney.

3.  Use the Employee’s FMLA History Against Him: Delbert sounds like he was a serial (or kinda serial) absentee. Therefore, he knew — or by any objective measure should have known — what the rules were for calling in his absences.  So, use his history against him to defeat his FMLA claims here! Where an employee has regularly utilized FMLA or medical leave in the past, courts have held that the employee should be aware of the employer’s practices for reporting an absence.  If you can show the employee had followed the policy in the past and did not do so here, you have a strong defense on the FMLA notice requirement.  See, for example, Ritenour v. State of Tennessee, which I blogged about here.  In that case, the court effectively held the plaintiff to a heightened standard because it was clear she took leave on previous occasions and knew what the call-in requirements were.  Delbert should be held to the same standard here, and on remand to the trial court, Tyson should use this argument to their advantage.  If Delbert correctly used the call-in policy in the past (i.e., occasions when he actually called into his supervisor to request time off), then he knew how to use it for his December absences.  When he didn’t, his absences lost the protection of the FMLA.

As for the ending of this story above, I’d put my money on Tyson to win at trial if I were a bettin’ man.

050312_clown_092.jpgWant a glimpse into a world where an employer fails to maintain a legally compliant leave management process?  Let me warn you — what you are about to read is not pretty and not for the faint of heart.

The Facts

Rachna was a resident physician at St. Vincent Health Center.  She also had a chronic heart condition known as superventricular tachycardia (SVT) which caused a rapid heart beat, light-headedness and dizziness.  It also caused her to lose consciousness on several occasions.  Serious health condition?  Ummm, yes.

On June 1, Rachna requested a leave of absence to undergo surgery to address the SVT.  When Rachna met with HR to discuss her need for leave, the HR representative arbitrarily assigned her a return to work date of June 24.  When Rachna told her that she’d likely need a little more time to recover, the HR rep agreed to push the return back two days — to June 26.   The medical certification from Rachna’s physician did not contain an anticipated return to work date or an explanation of the duties Rachna could not perform.  However, HR did not follow up with Rachna to ensure she cured the certification and it did not provide her an FMLA designation notice.

Rachna had surgery and, on June 27, she called HR (and later, her boss) to extend her medical leave. Again, her return date remained up in the air while she awaited clearance from her physician.  At that time, HR did not ask Rachna to provide recertification of her need for leave.  Instead, on July 11, a new HR representative overseeing Rachna’s leave of absence sent Rachna a letter asking her to provide a “receipt of an extension [of her leave of absence] from her physician” and to provide it by the end of that same week.  One week later, on July 18, when she did not hear from Rachna, the HR rep sent an email to Rachna asking her physician to “fax a statement extending your medical leave” through the end of July.

Beginning on July 18, Rachna left a series of voicemails for her physician seeking to obtain documentation supporting her extended leave.  According to Rachna, her physician would not speak with her and did not respond to her voicemails.  In late July, Rachna contacted her direct supervisor to report that she was having difficulty reaching her physician to obtain the appropriate medical documentation.

Just a few days later, on August 1, the Health Center terminated Rachna as a resident physician.

Insights for Employers

Where did the employer go wrong?  Let us count the ways, so said the court.  In a sobering court opinion, the trial court refused to dismiss Rachna’s FMLA interference and retaliation claims, sending them instead to a jury trial.  Patel v. St. Vincent Health Center (pdf)  Of course, these facts explain the employee/plaintiff’s side of the story, and the employer will have an opportunity to present evidence in support of its case at trial.  But let’s identify in the meantime where the Health Center apparently fell short on compliance:

1.  When Rachna sought a leave of absence, the HR rep assigned an arbitrary return to work date instead of obtaining the information directly from the certification.

2.  When Rachna’s physician did not provide a complete and adequate certification, the employer did not seek to cure the certification and obtain the information necessary to make a determination about whether the absence was covered by the FMLA.

3.  Instead, the employer compounded the problem by failing to issue a recertification request when the employee requested an extension of leave.  Who knew if Rachna even required any additional leave?  We’ll never know, since the employer issued a vague request seeking a note from the employee’s physician supporting an extension, and it gave her fewer than five days to provide it.  In these instances, the regulations are clear: when the employee seeks an extension of leave, the employer should issue a request for recertification and provide the consequences for failing to provide recertification.  It also must give the employee up to 15 days to return the certification (fewer than five days just won’t do).  When the employer fails to issue a recertification request in these instances, its leave management processes are not compliant, and they create liability for the employer.

4.  When the employer had enough information to determine whether FMLA applied, it was obligated to provide the employee a Designation Notice.  It didn’t do so here, which is yet another compliance error.

5.  Under the FMLA,  the employee must provide recertification 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.  Here, the employee provided enough evidence that she was engaging in good faith efforts to communicate with her physician to obtain an updated recertification.  Yet, the employer declined to engage her further.  Recall a previous post here where I outlined what an employer can do to determine whether the employee has done all she can to provide certification.

In the end, there apparently were so many holes in the employer’s FMLA administration that the court refused to dismiss not only the employee’s FMLA interference claim, but the FMLA retaliation claim, since the employee could provide evidence that that the employer’s reason for termination was mere pretext for firing her.

Leave management compliance is essential.  Tough lesson for this employer.

woman_pregnant_child_stomach_brother_sister.jpgEna Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp.  She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of complications caused by her pregnancy.  Instead of working her usual 30 hours per week, her doctor limited her to 20.  Leading up to that day, she had limited restrictions (i.e., she couldn’t remove snow, vacuum or mop floors).

Ena was fired on her next scheduled work day, November 16, merely one day — 24 hours — before her anniversary date, at which point she could have taken FMLA leave.  The employer took the position that, although it was “getting by” with her earlier restrictions, the hours restriction was “untenable.”  Notably, the employer did not choose to terminate Ena’s employment based on her earlier restrictions.  But the request to reduce hours apparently tipped the balance.

Not surprisingly, after her termination, Ena filed FMLA interference and retaliation claims against her former employer.

Court Ruling

You can guess how this one turns out.  This one clearly just didn’t feel right to the court.  And frankly, as employers, we should have some pause over this personnel decision, too.  As an initial matter, the court turned aside the employer’s argument that Ena could not raise an FMLA claim because she was not eligible for FMLA leave (i.e., because she had not worked for the employer for 12 months).  The court reminded us that we look at an employee’s eligibility as of the date leave is to begin.  Here, the court effectively counseled that Ena’s employer could (and should) have allowed her to use sick leave, personal leave, or vacation leave to cover her reduced work schedule until she became eligible for FMLA leave on November 17.  As a result, the court determined that the employer’s decision to terminate Ena’s employment instead of allowing her to use her paid leave (to bridge the eligibility gap) interfered with her FMLA rights.

The Court didn’t even send these claims to a jury.  It summarily decided that the employer violated the FMLA, and it entered judgment in Ena’s favor on both her FMLA interference AND retaliation claims.  As to the retaliation claim, the court also determined that there was “no dispute that Defendant terminated [Ena] solely because she requested a reduced schedule under the FMLA. Under these circumstances, there is a direct causal connection between [Ena’s] assertion of rights under the FMLA and her termination.”

That’s what I call a judicial smack down.  Wages v. Stuart Management Corp. (pdf)

Insights for Employers

The lessons learned here could go for several pages, but before I lose your interest, here are the key takeaways for me:

  1. I’ve said it before and I’ll share it again: when you are sued by plaintiffs with the names Dollar (see previous post) and, in this case, “Wages,” be very very afraid.  The great judicial gods have just smoked strike one past you.
  2. Show moms some love.  Well, not in a “violate Title VII” kind of way, but you know what I mean.  The far majority of employers I counsel don’t act like the employer did here.  They engage in the interactive process with the expectant mom, reasonably accommodate requests that reflect the spirit of the law and maintain employee morale, and are willing to provide leave as a reasonable accommodation.  And they don’t terminate the employee one day before she is eligible for FMLA leave!  I don’t want to pile on the employer here — the judgment entered against the company is a lesson it won’t soon forget — but keep in mind that we are in the human relations business, too.  As such, for an employee like Ena, who the court referred to as a “good employee with an unblemished record,” we should be looking for ways to maintain her employment, rather than finding a way to end it.  Tough message for employers to hear, but for those of you who know me, I’m not in the business of sugarcoating things for you.  (See a related, previous post here.)
  3. If we don’t show moms some love, the EEOC will.  And it’s ready to do so.  In a pregnancy discrimination case before the U.S. Supreme Court entitled Young v. UPS, the federal government filed a “friend of the court” brief (pdf) indicating that the EEOC is planning to adopt new enforcement guidance on pregnancy discrimination and accommodation that would address a range of issues related to pregnancy under the Pregnancy Discrimination Act and the ADA. Based on extremely reliable information I have received from some folks at the EEOC, the agency is likely to take the position that even “normal” pregnancies can (and often do) have accompanying medical impairments that significantly affect one of a woman’s bodily functions (e.g., circulatory system). According to the EEOC, in light of the fact that ADA regulations no longer require a specific durational requirement for an impairment to meet the definition of a “disability” under the ADA, it is expected that greater numbers of pregnant women will be able to seek protection under the ADA.  As a result, all employers should consider that many pregnant employees soon will have access to the protections and accommodations and interactive process of the ADA.

depressed woman.jpgKris was forced to endure the unthinkable: her daughter had just become the victim of a sexual assault.

In the weeks that followed, Kris alerted her employer of the assault and the care her daughter would require in the time ahead.  Kris suffered too.  As her doctor would later report, she had crying spells, a lack of energy and an inability to focus or concentrate.  

To complicate matters further, Kris also had fairly significant performance problems in her job. From an HR standpoint, the timing couldn’t have been worse. Kris had been counseled for months that she could not work unauthorized overtime, and in the months leading up to the assault, she had been repeatedly counseled for her poor time management, and lack of initiative, detail and follow through.  

Shortly after the assult, two things occurred that are relevant here: 1) Kris began bringing her daughter to work with her every day; and 2) Kris’ employer had reason to believe she had turned in inaccurate timesheets and concealed unauthorized OT.  As a result, Kris was suspended.

Shall I complicate matters even further?  Two additional facts about Kris’ situation: 1) When Kris brought her daughter to work, her employer rightfully was concerned.  But her boss allegedly told Kris that she had to choose between caring for her daughter or keeping her job; and 2) in conjunction with her formal disciplinary hearing, her employer refused to consider Kris’ written “rebuttal” to the disciplinary charges calling for her termination.

As the story goes, Kris was terminated.  An FMLA lawsuit ensued, and the court found that there was enough evidence based on the above for a jury to find that Kris’ employer interfered with her FMLA rights and retaliated against her exercising those rights.  Nelson v. Clermont Cnty. Veterans Service Cmmn. (pdf)

Insights for Employers

Deep breath.  There are plenty of takeaways here for employers:

  1. Courts continue to loosen the standards of a serious health condition.  I don’t mean to downplay how difficult the ordeal must have been for Kris, but what was her serious health condition requiring FMLA leave?  According to her doctor, it consisted of crying spells and her inability to focus or concentrate.  These symptoms alone were enough for the court here to presume that Kris suffered from a serious health condition entitling her to FMLA leave.  This finding sends a message to employers that courts are focusing far less on the actual definition of a serious health condition and more on the FMLA interference and retaliation claims themselves.  Be warned.
  2. Note to managers, supervisors, owners, HR professionals and anyone else in a position to effect a personnel decision: Stop saying stupid stuff! Did Kris’ boss have the right to be concerned when she showed up to work every day with her daughter in tow? Absolutely. But his reaction created liability for the employer. I’ve detailed all too often stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made follish remarks in conjunction with a termination decision.  Don’t do it, and train your managers ans supervisors to do the same.  This case serves as yet another example of how quickly a court will send a case to a jury as a result of one indiscreet comment.
  3. Due process must exist for all employees. Do you know what juries detest? Employers who don’t allow their employees a chance to be heard.  Here, the employer claimed that it had an “honest belief” that Kris was engaging in timecard fraud. That argument may have held up had the employer actually given the employee a chance to fully defend herself. But because it refused to entertain Kris’ “rebuttal” submission, the court determined that her employer could not rely on the “honest belief” defense. Ouch. Let’s be clear — where termination is at issue, employers have every reason to bend over backwards in allowing the employee to explain her side of the story. Constitutional due process may not apply for all, but employers still should strive for it.  When the employer refused to hear the employee out here, it paid the price. (Keep in mind a previous post where I explain the importance of a complete and exhaustive investigation.)
  4. Be empathetic. I am not suggesting that we allow an employee like Kris to use a tragic personal situation as a shield against any and all discipline (including termination), but in a situation like this one, it’s all the more critical to practice patience, compassion and concern.  I didn’t sense any of the above when reading this court case, and I wonder if the court felt the same in refusing to dismiss these FMLA claims against the employer. An intangible, for sure, but judges are human, too, and these intangibles can impact whether a case is dismissed or not.
  5. Retaliation is a scary predicament for employers. In this case, Kris also complained that the employer “overloaded” her with work upon her return from FMLA leave.  However, the court’s decision contains scant details of what the overload actually consisted of.  Yet, the court noted the overload as a factor in refusing to dismiss the case.  That’s bothersome to me.  If work given to an employee is contained within her job description, courts should not act as a super-personnel department in second guessing the situation. Nevertheless, the court did so here.  The result is that employers must be mindful not to “load up” on any employee returning from FMLA leave.  

back to work.jpgDo you know what’s particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!]

The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.  

Returning an employee to the same position is easy enough to grasp.  The same is the same is the same.  But often, the same isn’t available, so the employer is left wondering what exactly is an equivalent position?  Here’s where the FMLA gets oppressive.  Under the FMLA regulations, an equivalent position is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

Several words here scare me: virtually identical, same, must involve, must entail.  Does this effectively mean that the equivalent position must be identical or the same?  Just about.

JP Morgan Chase recently learned this the hard way.  

The Facts

Paula Crawford worked for JP Morgan Chase as a project manager.  In this role, she was required to review government regulations and contract servicing agreements.  The position also allowed her to apply legal knowledge she acquired during her studies in law school. 

From December 2007 to February 2008, Crawford took leave for depression and anxiety.  Upon her return, her employment looked something like this:

  • She was placed into a new position: Quality Analyst II, which maintained the same pay, benefits, work hours and location
  • She performed more clerical duties
  • She reported to a former peer
  • The new position did not require the same use of legal expertise
  • Her opportunities for career advancement were diminished in the new role

The Bank’s attorneys argued that Crawford’s new position was an equivalent position because it involved the same salary and benefits.  But herein lies the problem: all too many employers presume that if they provide the employee the same pay and benefits and return him/her to a position that’s “same enough,” they’ve met their obligations under the FMLA.

Not so fast. 

Remember those oppressive words above: the new position must be “virtually identical” to the former position, and it must maintain the same privileges, perquisites (“perks”) and status.  The FMLA regulations also tell us that effectively the same skill, effort, responsibility, and authority must be employed, too.  [Read: employers have very little wiggle room.]

The Ruling and Insights for Employers

The court refused to dismiss Crawford’s case above, finding that the new position: 1) did not offer the same career advancement; 2) did not require a similar level of education and training; 3) increased her clerical duties; and 4) did not allow her to utilize her legal skills.  As a result, it found that a jury would have to decide that the new position was not equivalent under the FMLA. Crawford v. JP Morgan Chase (pdf)  

What do employers learn from this?

  1. If pressed in a lawsuit, employers must do a better job explaining why the position is virtually identical.  Assuming the facts are true, the bank didn’t do that here, and even worse, it allowed the employee through her own testimony to offer her own spin on the duties of the new position, all of which were not contested by the bank.  If the quality analyst position was indeed the same or virtually identical, then show it!
  2. *Virtually identical* means just that — that is, the new position must be pretty darn close to the last one.  It should not take on more clerical duties or offer a more trecherous route for advancement through the company.
  3. Read carefully part of the court’s opinion: “Even if both [of Crawford’s] positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.”  Seems a bit harsh, as it doesn’t take into account the diversity of positions potentially available in a typical company, but this is what the courts are saying, so we have to take it seriously.
  4. Finally, be mindful of the status of the new position, yet another requirement under the regulations. For example, when you offer a more difficult road for advancement within the company, you arguably change the status of the position, making it difficult to knock out an FMLA claim.