Keith 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).

Blawg100HonoreeBadgeMy dear blog readers:

I am delighted to announce that our FMLA Insights blog has been selected for the fifth consecutive year as one of the Top 100 Legal Blogs of 2015 by the ABA Journal! In its 9th Annual ABA Journal Blawg 100, we were only one of six employment blogs to receive the honor.

I am honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In this week of all weeks, I am so thankful for your support of my little FMLA blog. Thousands subscribe to the blog, and tens of thousands more visit our site every month. Thank you! Thank you! Thank you!

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other employment blogs who made the list – they are worth the read:  Eric Meyer’s The Employer Handbook, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,  A hearty congratulations to my friend Jon Hyman, whose Ohio Employer’s Law Blog, was voted into the blogging Hall of Fame this year!

Much to be thankful for this year.  Happy Thanksgiving!

 

P.S. Some of you may not be familiar with the ABA or the ABA Journal.  Here is some background, so you have some context for our blogging award:

About the American Bar Association (ABA)  www.abanet.org 

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.  Quick note: On December 1, 2015, I will be a panelist in an ABA webinar entitled, “FMLA: The Basics that You Need to Know“! This webinar will be of benefit to your colleagues just getting started out administering FMLA. Please register here!

About the ABA Journal www.abajournal.com

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

 

webinar1.jpgThanks to those who attended my webinar last week on FMLA and ADA Overlap Issues.  If you missed the program, you can download our presentation here (pdf).

In a mere hour plus, Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) Matt Morris (Vice President at ComPsych) and I covered a number of FMLA and ADA overlap conundrums, such as:

  • Handling an employee’s request not to work overtime or more than eight hours in a day
  • Managing an employee’s sporadic, yet frequent absences after the employee exhausts FMLA leave
  • Responding to an employee’s request for a new supervisor due to stress caused by the workplace
  • How many extensions of leave is an employer legally obligated to provide after an employee exhausts FMLA leave

And we sang a Thanksgiving jingle. Which, of course, was god-awful. Thankfully, this can be skipped over in the recording.

During the webinar, some common themes emerged:

  • When a triggering event occurs (e.g., a request for leave), the interactive process is paramount.  The employee’s request must always be taken seriously, and it is critical that the employer engage the employee to determine whether any accommodations exist that would enable the employee to perform the essential functions of his job. We outlined what this engagement should look like.
  • The determination regarding whether a requested leave must be granted as a reasonable accommodation requires a fact-intensive inquiry.  We provided attendees a very specific approach to handling requests for leave as a reasonable accommodation, focusing on: 1) how an employer should deal with vague and/or non-responsive information from the employee and the health care provider; and 2) how an employer can identify the undue hardship on the employer’s operations as a result of the employee’s continued absence.  To borrow a phrase from Sara during the webinar, “leave is not a destination . . . it’s a tool to help the employee get back to work.”  Well said.
  • An employer absolutely can insist on an employee’s regular and reliable attendance. However, where the FMLA and ADA are implicated, how you communicate and document your attendance expectations sets the foundation for taking appropriate and lawful personnel actions at a later time.  The path is full of potholes, however, so we recommended an approach to maneuver around those landmines.
  • Beware of automatic termination policies & examine “no fault” attendance policies.  Although these policies are not per se illegal, we discussed how to practically and lawfully implement them in your workplace.
  • When it comes to leave and reasonable accommodations, don’t assume a leave of absence is the only option.  We highlighted considerations for alternative accommodations, including reassignment.

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

Edepartment-of-labor-300x300arlier this month, I had the pleasure of presenting on complex FMLA issues at the American Bar Association’s Annual Labor and Employment conference. During the session, entitled “The FMLA 20 Years Later,” we covered key FMLA notice and medical certification issues and other difficult FMLA scenarios.

Notably, one of my co-panelists, Andrea Appel, Regional Counsel for Civil Rights in the Department of Labor’s Philadelphia office, reminded employers of the DOL’s key focus on systemic FMLA problems during their investigations of employers’ FMLA practices.  As I have reported in my previous blog posts, the DOL’s interest in systemic issues means that the agency will regularly broaden its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.  With increasing regularity, the DOL will move beyond a single complainant to an entire group, department, employer location and onto multiple employer locations to ensure compliance across a company’s work sites.

As reported by Thompson Information Services, who was covering our ABA conference session, and as I have reported in my previous blog posts, the DOL’s systemic investigations will generally take aim at three types of information:

  • statistical — leave trends, leave requests, leave approvals and responses to leave requests by supervisor, job group, type of request or any other grouping;
  • anecdotal — based on interviews with employees, supervisors, administrators and managers; and
  • documents — records of leave requests, notices provided, leave determinations, employer’s FMLA policy and handbook, and medical certifications and re-certifications.

Insights for Employers

This is yet another reminder that employers will continue to face scrutiny by the DOL on their FMLA procedures, and that they increasingly will become party to consent decrees where their FMLA practices do not adhere to the FMLA regulations.

I know I sound like a broken record, but as you prepare your HR and legal budgets for 2016, make an FMLA self-audit a priority for your workplace in the New Year.  As I have highlighted in a previous post, your self-audit should focus on the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.  As the DOL’s Appel made clear in our ABA presentation, the DOL will be making fairly broad information requests, so excellent recordkeeping is imperative.
  7. Train your employees! Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because these managers are creating a liability for you.  Indeed, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

fraud-finalQ. In trying to reduce the amount of FMLA abuse in our Company (about 30% usage), we are contemplating having employees returning from FMLA leave complete a form that asks why they were out, had they been out for this reason before (and when), and that they took leave for the reason they provided. Can we implement this procedure without violating the FMLA?

A.  This procedural requirement does not necessarily run afoul of the FMLA, but I have some concerns about FMLA interference if you only require it for employees returning from FMLA leave.

As an initial matter, you have the right to ask your employees questions about their leave of absence so as to determine whether FMLA applies. So, asking them why they were out and whether they’ve been out for this reason before is acceptable. In fact, I encourage you to ask these questions up front.  (See Tip #2 below)

Asking them to confirm that they actually took leave for the reason provided? This is where it gets a bit tricky. My concern in asking this kind of question is the risk that it tends to treat differently those who are returning from FMLA leave versus those who are returning from other forms of leave, thus causing the employer to be susceptible to an FMLA interference claim. Here, the argument is that the employer is treating the FMLA folks differently than other employees when it requires them to complete a form attesting to their FMLA usage.  As a result, a plaintiff’s attorney will argue that your practice denies the exercise of FMLA rights, which is prohibited by the FMLA regulations. 29 CFR 825.220(a)(1)

To avoid the risk of an FMLA claim, it’s best to implement this procedure for an employee returning from any leave of absence — FMLA or for another medical reason.  My suggested form goes something like this:

Personal certification

The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document.

Other Tips to Combat FMLA Abuse

Fortunately for employers, there are several tools available to combat FMLA abuse.  In addition to the Personal Certification outlined above, I’ve made the following suggestions to clients:

  1. Require that Employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee provides verbal notice of the need for FMLA leave and they articulate an unusual circumstance as to why they could not follow proper procedures, requiring the employee to put a leave request in writing and return it to Human Resources tends to deter them from gaming the system.
  2. Prepare a list of probative questions you ask of all employees when they ask for time off. Employers have the right to obtain information from the employee about their need for leave. Prepare a list of questions that you ask your employees when they call in an absence.  These will help you better determine whether FMLA is in play and if the request might be fraudulent:

– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/illness?

– Have they previously taken leave for this condition? If so, when?

– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?

– When do they expect to return to work?

  1. Enforce call-in procedures. Employers typically may deny FMLA leave (and potentially discipline the employee) if the employee fails to follow your customary call-in procedures, absent an unusual circumstance.  (See questions to ask the employee above.)
  2. Certify … and Recertify! Clearly, one of the best tools to fight FMLA abuse is the use of medical certification at various intervals: initially to verify the serious health condition; every new leave year; every time the reason for leave changes or the employee requests an extension.  Employers should require recertification: at regular intervals; if the frequency or duration of the absences changes significantly; if there is a pattern of suspicious absences; or if the employer receives information that casts doubt on the reason for leave.  Keep your employees honest – require them to certify their absence and seek recertification at the earliest opportunity.
  3. Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.
  4. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy and forms are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

A question was posed to me on Twitter this past week: Shouldn’t former University of Southern California (USC) football coach Steve Sarkisian have been placed on FMLA leave to get treatment for apparent alcoholism instead of getting sacked by USC? [Pun intended, of course.]

For those of you not familiar with Mr. Sarkisian, according to multiple reports, the second-year USC football coach allegedly showed up intoxicated to a team meeting last week. This behavior followed reports that he showed up drunk to a football booster event earlier this year, and even other reports that he was suspected to be under the influence during a USC game a few weeks back.

One day after forcing the coach on an “indefinite” leave of absence, USC reversed course and terminated Sarkisian’s employment after considering “what is in the best interest of the university and its student athletes.”

Does the FMLA Protect Coach Sarkisian in this Situation?

Since alcohol was involved, wasn’t USC required to place the coach on FMLA leave, instead of terminating his employment outright?

In a word, no.

The FMLA regulations make clear that leave relating to substance abuse need only be given when the employee is seeking treatment based on a referral by a health care provider — not when he shows up intoxicated at work. Here’s the regulation:

FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. 29 C.F.R. § 825.119(a).

Insights for Employers

1.  Hold Your Employee to Reasonable Performance Standards.  Both the FMLA and ADA allow an employer to hold an employee dealing with alcoholism to the same job performance standards as other employees. As a result, the employer has the right to discipline an employee who abuses alcohol and fails to perform the job. Based on the facts provided to USC, the University was well within its right to terminate the coach instead of offering FMLA leave.

2.  Maintain a policy prohibiting substance abuse.  Under the FMLA regulations, “if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.”  29 CFR 825.119.

In light of this DOL rule, it is imperative that employers maintain a written policy providing that an employee may be terminated for substance abuse.

3.  Keep in mind though — if an employee is not being disciplined for violating a substance abuse policy but simply advises the employer that he intends to take time off for substance abuse treatment, this is a legitimate basis for FMLA leave. In these situations, the employer must provide FMLA leave.

4.  USC placed the coach on leave but then abruptly terminated his employment the following day. Is this an FMLA problem? No. Simply put, an employee’s absence or performance issues due to his abuse of a substance is not afforded any protection under the FMLA. So long as USC can establish that it made the termination decision as a result of the coach’s conduct, and not because he was in the process of seeking treatment, it’s on solid footing.

5. Even the EEOC supports an employer’s right to take action where the employee violates a workplace policy prohibiting the use of alcohol. Yep, you read that correctly. According to Question 26 of the EEOC’s guidance, the “ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.”

webinarIt’s Webinar Time!

When managing an employee with a medical condition, the issues involved regularly implicate the FMLA or ADA — or both. Using interactive case studies, we will address critical FMLA and ADA compliance considerations when dealing with the most difficult employee leave and accommodation scenarios.

Please join us on Thursday, November 12 (12:00 – 1:15 p.m. central time) for “Where ADA and FMLA Overlap:  Leaves, Accommodations and Headaches, Oh My!” I will be joined by Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) and Matt Morris (Vice President at ComPsych).

And the best part? It’s FREE!

During the webinar, Sara, Matt and I will highlight the most difficult FMLA/ADA overlap issues employers face and identify practical solutions to help employers stay compliant. Among other topics, we will address:

  • Requests that implicate the FMLA and ADA and whether leave and/or workplace accommodations are necessary
  • Employee requests for a “less stressful position” – is it an FMLA or ADA issue?
  • Examine the roles of HR and managers and provide tools and best practices for effective communication during the leave management and accommodation processes
  • ADA Intermittent leave!?! Do we have to?
  • When discussing “reasonable accommodations,” what does “reasonable” mean? Reasonable to whom?
  • The age old question: When FMLA ends, how much additional leave must an employer provide before terminating the employee?

This session promises to be practical and fun. As has become our custom, we might even throw in a Thanksgiving tune to finish things off.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

Looking forward to dining on FMLA and ADA with you.

none_for_youOne FMLA rule that tends to fly under the radar is the amount of FMLA leave available to married couples who work for the same employer.

Under 29 CFR 201(b), married couples in this situation can be required to share a combined 12 weeks of FMLA leave in two circumstances:

  • To bond with their new child; or
  • To care for their own parent with a serious health condition.

The actual regulation states it like this:

Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement.

Plenty of employers understand that the spouses split 12 weeks of FMLA for bonding time, but plenty more employers forget that the FMLA sharing also occurs when one or both of the spouses care for a parent.

How Does This Work in Practice?

Peter Iocona gives us some examples to consider to help illustrate the point:

1.  Mike and Carol are married and work for the same employer. Carol takes two weeks of FMLA leave at the end of her pregnancy for preeclampsia. These two weeks of FMLA leave do not count toward the couple’s combined 12 weeks. This leave is for a serious health condition (complications with pregnancy), not bonding with a new child. So, their combined leave still remains at 12 weeks.

2.  Let’s assume that, in the same 12-month period, Mike later takes 3 weeks of FMLA leave to care for his dad, who was injured in a car accident. After 6 weeks of maternity leave, Carol must sit bedside with her mother, who requires constant supervision.   How much FMLA leave can Carol take to care for mom?  Just 3 weeks, since that’s the only combined FMLA leave remaining.

3.  That leaves zero weeks left for Mike to care for his mother-in-law.  Covered by FMLA?  Of course not.  Caught you napping, yes?

4.  Although Mike and Carol have exhausted FMLA leave to bond with their child or to care for their own parents in this FMLA leave year, Carol still has 1 week left for her own serious health condition or to care for Mike/her child with a serious health condition.  Mike has 9 weeks left for the same purpose.

The Marriage “Penalty”

The slightly absurd reality here is that none of the above rules apply if Mike and Carol were not married. Notably, the DOL has acknowledged that this provision does not apply to unmarried couples. Although this looks like a penalty against married couples, the DOL did not mean for these rules to do so.  Actually, the purpose of allowing employers to limit time off like this was intended to encourage employers to hire married couples, thereby reducing the burden on those employers if their married employees decided to have children.

Not sure whether that’s playing out in reality.

bad manager

How 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?

Wrong.

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.

FMLA leave rejectedDo you require your employees to fill out a form or an application to request leave under the Family and Medical Leave Act? If not, are you thinking of changing to such an approach? Either way, pay attention to this story about Carrie, whose particular leave situation is instructive for employers.

The Facts

Carrie was a bus driver and cafeteria worker for a local school district. Interesting combination, but I’ll keep my comments to myself.

Carrie requested sick leave to attend her grandchild’s birth, but under the terms of her collective bargaining agreement, she could use only one sick day for the birth, and she was required to use personal days for the rest of the time off.

As the story goes, immediately after her grandchild was born, Carrie called in sick with bronchitis, indicating that the medical condition would cause her to miss work for the rest of the week. She later claimed to be bedridden and required a breathing machine during the time she was absent.

When Carrie returned to work, she filled out a “sick leave” form, explaining that she had “acute bronchitis, fever [and an] ear infection.” She attached a note from her doctor excusing her from work because of an unspecified “illness.” The sick leave form included a section in which Carrie could have requested FMLA leave for her absence and contained a a brief explanation of how an employee could qualify for FMLA leave. Notably, Carrie did not request FMLA leave, opting instead for regular, paid sick leave.

Not surprisingly, Carrie’s supervisor found the timing of her absence too coincidental, given that Carrie earlier had requested sick leave for the same period of time. Her supervisor reviewed security camera footage from the week Carrie was absent, and sure enough, the video showed Carrie picking up her granddaughter at the school.

Busted.

As a result, the school believed Carrie was lying about the reason for her absence. She later was terminated for an unrelated performance issue.

The Ruling

After her termination, Carrie filed an FMLA interference claim, contending that the school should have characterized her leave on this occasion as protected by the FMLA.

Noting that Carrie had taken FMLA leave on a number of previous occasions, the court determined that she knew well the school’s policy for requesting FMLA leave. So, when the school asked her specifically on the sick leave form (and included a definition of FMLA leave on that form), and she declined FMLA leave in favor of paid leave, it was clear that the school “was no longer obligated to her” under the FMLA. The court also determined that Carrie could not “retroactively” invoke an FMLA right she previously chose not to exercise.

FMLA interference claim denied.  Amstutz v. Liberty Center Board of Education (pdf)

Insights for Employers

This decision is an illustrative one for employers, as it gives us good insight into what we need to include in our leave request forms to insulate us from an FMLA interference claim:

1. As a general rule, employers should use a general leave of absence request form, allowing employees to specify any of the reasons for their need for leave.

2. If you ask an employee to affirmatively indicate whether they are requesting FMLA leave — by checking a box or specifically stating so — it is imperative that you provide enough information about what the FMLA is.

Keep in mind the basic premise of FMLA notice, namely, that the employee is not required to invoke the Act or the letters F-M-L-A to request leave. The employee need only provide facts sufficient enough to put the employer on notice of the need for FMLA leave. So, as an initial matter, I get a bit queasy when my client uses a leave of absence form that asks the employee — without more — to state affirmatively whether they need FMLA leave or not.

This type of form might be effective for someone like Carrie, who had taken FMLA leave on a number of previous occasions.  But what about the employee who has never requested FMLA leave before and doesn’t have a clue as to what FMLA stands for?  This is where the risk comes into play. Employers minimize this risk when they carefully explain on the leave form what circumstances might be covered by the FMLA.  An even more effective form actually links to the employer’s comprehensive FMLA policy.

3. The kind of form used by the school in this case can be particularly effective where an employee has taken FMLA leave in the past.  Clearly, the fact that Carrie took FMLA leave on previous occasions was significant in the court’s determination that she knew what kind of leave she was (and was not) requesting when she completed the school’s sick leave form.

That all said, let’s not assume our forms are up to snuff.  If you’re using a leave of absence form covering multiple forms of leave, including FMLA leave, be sure to have them reviewed by your legal counsel.  A few (fewer) words could have meant a different and far more difficult result for the school district here.