Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere.  Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI.  For these employers, however, many of their employees won’t be at work Monday morning.  The reason?  In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late.  Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million. 

“There will be lots of workers partying all night,” John Challenger told Bloomberg BNA (subscription required), “either celebrating the team’s win or crying in their beer—not ready for work on Monday morning.”

Employers in and out of New York and New England will have to be prepared for the apparent onslaught of call offs the day after the Super Bowl.  Many of these employees certainly will use the FMLA as an excuse to recover from the night before.  So, what can an employer do to obtain more information from the employee in these situations to avoid FMLA abuse?  I remind employers of the same suggestions I offered in this post one year ago:

1.  Determine first whether the employee is seeking leave that might be covered by the FMLA. Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary.

Unfortunately, it’s not always that easy. Employees typically are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

2.  Prepare a list of probative questions you ask of all employees when they call in to report an absence. The employer has the right to know why the employee cannot report to work. During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:

  • The specific reason for the absence
  • What duties of the job they cannot perform
  • Whether they will see a doctor for the injury/illness
  • Whether they have suffered from this condition before and previously taken leave for it. If so, when?
  • When they first learned they would need to be absent
  • The expected return date (or time, if less than a day)

3.  If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form?  Has medical certification expired?  If your answer is “yes” to any of these questions, seek recertification immediately.  Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

For more thoughts on combating suspected FMLA abuse, click here.

For the rest of us (who are Chicago Bear fans, of course), better luck (and a lot of it!) next year. 

On January 30, 2012, the U.S. Department of Labor announced proposed changes to Family and Medical Leave Act regulations (pdf) in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.  Rules for the first two have been expected for some time, but the proposed rule on calculating increments of FMLA leave is a bit unexpected and essentially seeks to revert back to pre-2009 regulations on this issue.

The proposed regulations also comment on the DOL’s model FMLA forms as well as an employer’s obligations under the Genetic Information Non-Discrimination Act (GINA).  So, read on…

Military Family Leave

Caregiver Leave

Under the National Defense Authorization Act of 2010, eligible employees can take up to 26 weeks of FMLA leave (“caregiver leave”) in a single 12-month period to care for a covered service member or veteran with a serious injury or illness.  Under the NDAA and the proposed regulations, caregiver leave now can be taken up to five years after the service member leaves the military and for an injury or illness that results from a condition that predates the individual’s active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Interestingly, the DOL is proposing that caregiver medical certification also may be completed by health care providers who are not affiliated with the military or Veterans Administration.  The same would apply to second and third opinions, so long as the initial certification was conducted by a HCP not affiliated with the military or Vets Administrations.  Under the current regulations, second and third opinions are not allowed for caregiver leave.  The DOL has specifically sought feedback on this issue, suggesting that it is open to even further changes to the proposed rule.

Exigency Leave

The NDAA and the proposed regulations also allow employees to take up to 12 weeks of FMLA leave for a “qualifying exigency” due to a family member’s call to active duty in a foreign country.  Qualifying exigencies naturally encompass a wide range of activities associated with a service member’s deployment, such as attending to legal, financial, family, child care, school and other matters.

Prior to the NDAA’s enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  The latter group specifically was excluded in the original statute.  At that time, the DOL rationalized that the lives of regular service members were not disrupted in the same manner as Reserve and National Guard members; hence, no exigency leave for “regular” freedom fighters.  However, the NDAA and proposed regulations reverse that position and now make clear: FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members.

Finally, the proposed regulations seek to expand from five to 15 days the amount of FMLA leave an employee can take to be reunited with a service member during “rest and recuperation” periods.

Airline Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA) ensures that more employees are eligible for FMLA leave.  Enacted in 2009, AFCTCA closed a loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave.  Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek.

AFCTCA applies the same concept to airline flight crews.  In short, the Act provides that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the proposed regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.  This calculation would not include personal commute time, or time spent on vacation, medical or sick leave.

The rules proposed by the DOL provide specific instruction on how to implement this technical correction and apply the standards for flight crew benefits.

Calculation of Increments of FMLA Leave

Smallest Increments of Leave

In an interesting add on, the DOL also proposes to change the manner in which employers calculate increments of leave.  Before the regulations were changed in January 2009, employers were required to track intermittent or reduced schedule FMLA leave in the smallest increments used by their payroll systems to account for such leave, so long as it was one hour or less.  Thus, if an employer tracked employee time worked in 6-minute increments, the FMLA regulations required employers to also track FMLA leave in the same manner.

In a move that was heralded at the time by the employer community, the DOL amended the regulations in 2009 to allow employers to track FMLA leave time in the same manner they track other forms of leave.  For instance, if the employer required employees to exhaust sick or vacation leave in one-hour increments, they also could require employees to exhaust FMLA leave in one-hour increments so long as the employee wished to use paid leave for the absence.

In short, the DOL proposes that we revert back to the pre-2009 regulations, reasoning that “an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.”  Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.

Physical Impossibility Provisions

Finally, the proposed regulations also seek to roll back a 2009 regulatory change that allowed employers to delay reinstatement where it is physically impossible for the employee to return to his or her job in the middle of their shift.  For example, if a flight attendant required two hours of intermittent leave because of a migraine headache, but also missed his scheduled flight as a result, the airline could delay returning him to work on that day because it was physically impossible for him to join his flight (since it already took off!).  As a result, the employer could designate a larger block of time as FMLA leave in that instance.

Not any more.  According to the DOL’s FAQs on the proposed rules, the DOL “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift.”  Therefore, the proposed rule would apply the physical impossibility provision “only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave.”

An Employer’s GINA Obligations

The DOL also proposes adding a standard record keeping provision that would confirm employers’ obligations to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).  The DOL reminds employers that, “to the extent that records and documents created for FMLA purposes contain ‘family medical history’ or ‘genetic information’ as defined in GINA, employers must maintain such records in accordance with [GINA’s] confidentiality requirements.”

Oddly, the DOL does not propose an obligation on employers to include any language on GINA protections within the medical certification form.  For a quick review of best practices in doing so, see our post from earlier this month on the issue.

The DOL’s FMLA Forms are gone too? 

Sniff, sniff.  The DOL also intends to whack from the Appendices all of the required FMLA model forms and notices.  Why?  We haven’t a clue, since we know the federal government’s fondness for paper.  If the rule is approved, these forms and notices would only be available on the DOL’s wage and hour website.

Insights for Employers

  1. First, take a deep breath and digest.  Nothing is final just yet!  We now have 60 days (from the time these proposed rules are published in the Federal Register, which is any moment now) to comment on the proposed regulations.  When the proposed rules are officially published, we will be able to submit comments here.
  2. In addition to the newly proposed regulations (see link above), take a minute to review the DOL’s FAQs and Fact Sheet #1 and Fact Sheet #2 on the proposed regulations.
  3. After a deep breath (see No. 1 above), bombard your employment attorney with all kinds  of exceedingly appropriate questions: Will we need to change our FMLA policy and forms? (Yes!)  Will we need to train our managers on these changes? (Yes!) Will the FMLA continue to be an administrative nightmare? (Yes!)  But will we still live to see tomorrow?  (An unreserved Yes!)

More Insights for Employers to follow soon…after a short nap.

Various news outlets and web sites, including the Washington Post, Fox News and MilitaryFamily.com, have reported that the Department of Labor will propose various changes today to Family and Medical Leave Act regulations regarding military family leave.   Fox reports that Secretary Hilda Solis will make the announcement with First lady Michelle Obama. 

According to the web reports, the new rules will allow leave for family members when a servicemember is called to duty on short notice and “will help military families who require time off to care for service members who are injured or called to active duty.”

We will post updates as information becomes available.

Q: 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.

doghappynewyear.jpgFirst, a heartfelt THANK YOU for following our FMLA Insights blog in 2011.

In 2011, our most popular blog entries involved two general topics: 1) employers’ best practices for FMLA administration; and 2) leave as a reasonable accommodation under the ADA when FMLA leave ends.  We share these posts again below, since we believe the guidance is valuable as we enter a new year.

The Best of 2011

In 2011, two blog posts highlighted practical steps employers should take to maximize the efficiency of their FMLA leave administration.  Updating your FMLA policy and forms, using the medical certification process to your advantage, enforcing call-in policies…and much more below.

Policies, Practices and More: An FMLA “To Do” List for 2011

Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

In August and September 2011, about 900 attendees attended my webinar with the EEOC Regional Attorney John Hendrickson regarding “Leave” as a reasonable accommodation under the ADA.  My takeaways from that webinar proved to be popular as well, and employers kept the questions coming.

What’s in Store for FMLA in 2012?

The DOL has been relatively quiet on the FMLA front.  Some time ago, it intimated that it would conduct a survey in 2011 to “provide insight into how families use leave,” but we heard nothing further.  Some (including me) wondered at the time whether this survey would signal even more regulatory change for the FMLA.  At this point, however, we are left guessing as to whether the DOL will even update its FMLA forms to include recommended changes such as the GINA disclaimer and the amended definition of “exigency leave” for military family leave.  Days ago, though, the DOL did publish this handy dandy guidance on FMLA retaliation, which told us what we should already know — Don’t retaliate against employees who take FMLA leave.

As we move into 2012, the EEOC (as opposed to DOL) seems to be grabbing the headlines on employee leave of absence issues, as it continues its war on automatic termination provisions and the use of leave as a reasonable accommodation under the ADA.  (See my post later this month on this topic.)  This year, we are likely to witness even more EEOC settlements in this area.  More importantly, the employer community eagerly awaits whether the EEOC will issue further guidance on “leave” as a reasonable accommodation, as it forecasted at its June 2011 hearing on this subject.  Will it give us the guidance we need to reduce liability and bring some predictability on this subject?

In the meantime, we soldier on.  We update FMLA policies and forms.  We change our FMLA leave year so it is the most adventageous for our operations.  We update and communicate our call-in policies so all employees understand their responsibilities.  We clean up job descriptions so they are useful in the context of both the FMLA and ADA.  We create call-in questionnaires and effective medical certification procedures so we can better combat FMLA abuse.  (Click here for one of our more popular articles in 2011 on fighting FMLA abuse.)  We try to avoid an ever-growing list of FMLA class actions.  We train our supervisors and HR professionals so they are in the best position to administer the FMLA.

May your 2012 be an FMLA worry-free year.

Finally…a Thank You, Again!

As we start out 2012, we give thanks to you!  Because of our readers and your votes, we were voted the No. 3 Labor and Employment blog in 2011 by the ABA Journal and the No. 2 L&E blog of 2011 by LexisNexis.  We look forward to communicating with you about all things FMLA in the year ahead.  Keep the questions coming!

wh380f.jpgIn a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011.  In short, employers may continue to use the DOL’s FMLA forms, although consider our suggestions below before using these standard DOL forms.

Why did the DOL’s FMLA forms expire?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms to the Office of Management and Budget (OMB) for approval, so that OMB can ensure the information request and the time spent responding to the request is minimized.  [Insert your own sarcastic comment about the efficiency of the federal government here.]  OMB approved the DOL’s FMLA forms in late 2008 around the time the new FMLA regulations took effect.  As a result, the forms were approved for three years, which is the maximum time period allowed.  Upon expiration of the forms (in this case, on December 31, 2011), the DOL may continue to use the forms while it seeks renewal of OMB’s approval, which it has done in this instance.

Even if employers can continue to use the DOL’s FMLA forms, should they use them?

Ahem, this really is the more important question.  In a nutshell, we encourage employers to proceed with caution.  At a minimum, keep the following in mind and make appropriate changes in 2012 and beyond:

  1. Add the GINA safe harbor provision to your FMLA notices and forms.  Under the Genetic Information Nondiscrimination Act (GINA), employers requesting medical certifcation or fitness for duty certification must instruct health care providers not to collect or provide any genetic information.  Therefore, employers should strongly consider adding language to their FMLA medical certification forms for an employee’s serious health condition.  And to avoid any further procrastination, I am even giving you the new language you should use.  Here it is:

    The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

  2. Consider adapting the DOL’s “model” FMLA forms to suit your needs.  The DOL’s “model” FMLA forms fall short in several respects.  To name a few: 1) the medical certification forms do not request all of the information that employers may require, such as information regarding an employee’s work restrictions; 2) the model designation notice does not include language addressing the rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse; and 3) because the DOL’s forms are designed as a “one-size-fits-all” solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers’ policies and procedures.  Additionally, the forms do not account for the changes to exigency leave, which now is possible as a result of a family member’s call to duty in a foreign country (as opposed to the confusing “contingency operation” language originally used).

However, changing the language of the DOL’s model FMLA forms should be done carefully.  At a minimum, we encourage you to update your notices and forms regarding the change to exigency leave above.  Either way, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their rights under the FMLA regulations while also fully complying with the rules.

blawg100.jpgAfter going “live” a bit more than one year ago, we are humbled to have been selected by the ABA Journal as one of the Top 100 Legal Blogs of 2011.  In its 5th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name us among only nine labor and employment blogs receiving this honor.  Congrats to those other employment blogs who made the list — they definitely are worth the read. 

In naming us to this elite group, the ABA Journal shared the following:

For those confronted with regular questions about the developments in and applications of the Family and Medical Leave Act, Chicagoan Jeff Nowak’s blog is one to bookmark. Tuscaloosa, Ala., lawyer Bruce H. Henderson recounts that in April, when large swaths of his state were devastated by a string of tornadoes, he posed several leave-related questions to FMLA Insights. The response was a post addressing many of his disaster-related issues.

Now, the real work begins!  If you enjoy our blog, please take a few seconds to vote FMLA Insights among the leading blogs from the Annual Blawg 100.  (Seriously, it literally takes seconds to vote.)  Complete a simple registration form and vote for up to 12 blogs from the Top 100 by clicking here. 

As always, thanks for your support of our blog.  It means so much to us!  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.

cover your eyes.jpgBefore you read this post, cover your eyes!

Cynthia Adams was a registered hospice nurse for Fayette Home Care and Hospice.  According to one of her hospice patients, Adams apparently showed him and his wife three pictures of her boyfriend’s genitals, the photos of which were stored on her cell phone.  Not surprisingly, the patient told another nurse from Fayette about the incident and asked that Adams not come back.

In responding to this incident, however, Fayette was faced with a bit of a Human Resources quandary: Adams had just begun a leave of absence taken under the Family and Medical Leave Act.  These fact patterns never are simple, are they?  So, did Fayette investigate and terminate Adams’ employment immediately (if the alleged facts are indeed true), or wait until Adams returned from FMLA leave (ahem, two months later) to terminate employment?  In this instance, Fayette decided to wait until Adams’ FMLA leave ended before confronting her with the allegations and terminating her employment.

Fortunately for the employer, this story has a happy ending.  Despite Adams’ claims that Fayette retaliated against her because she took FMLA leave, a federal court quickly dismissed them, a decision that was upheld by the Eighth Circuit Court of Appeals.  Adams v. Fayette Home Care and Hospice (pdf)

In reviewing Adams’ FMLA claim, however, the court grappled with this intriguing issue: did Fayette’s decision to wait two months until Adams’ return to work before calling the incident to her attention and terminating her employment indicate a discriminatory motive on Fayette’s part?  Thankfully, the Court found no such “sinister motive,” finding the following:

that [Fayette] sat on the allegations for two months before reporting them to Adams does not suggest a sinister motive on its part.  Fayette knew the full duration of Adams’s FMLA leave in advance; if it sought to retaliate, it had no reason to wait until the leave ended.  And Adams was recovering from a major surgery during her leave.

Case dismissed.

Insights for Employers

I regularly deal with this “timing” issue in FMLA training I conduct for employers: When do you confront an employee on FMLA leave with evidence of performance issues or (as in this case) deplorable conduct that is uncovered while the employee is on leave?  The more conservative approach is the one followed here by the employer: Don’t contact the employee while she is on leave, and deal with the issue immediately upon her return to work.  What’s great about the Fayette case is that courts typically will support this approach.

But is this approach always the most desirable?  Other employers would have conducted a swift investigation, contacting Adams while on leave and terminating her employment immediately thereafter because of the egregious conduct here.  Clearly, this approach is understandable in light of the facts.  So long as the employer conducted an adequate investigation, which would include informing the employee of the allegation and giving them a chance to respond, a court likely would be comfortable with this approach.

However, an employer’s approach as to the timing of its investigation and confrontation of the employee should take the circumstances into account.  Before rushing to hit the termination button, consider a couple of factors:

  1. How egregious is the conduct?  Surely, the more egregious, the more reason for the employer to act swiftly.
  2. Why is the employee on FMLA leave?  In other words, are we talking bunion surgery or major heart surgery?  Note: If the employee is in a hospital bed or could be at any moment, call off the dogs!
  3. In the same vein, is the employee suffering from a serious health condition that might make it difficult to communicate or prevent them from effectively responding to an investigator’s questions (e.g., depression)?  If so, I encourage you to tread lightly and deal with the situation after you have some confidence that the employee can adequately respond to the investigation.
  4. What is the employer’s typical practice or policy in these situations?  Employers typically do well in Court when they can establish that they handled the particular situation in the same manner as a similar situation in the past.  There are reasonable exceptions, of course, but we should respond to similar situations in the same manner.

For the few (or perhaps one?) who want to hear me blather on about this topic, feel free to listen to our FMLA Insights podcast “Can We Demote or Terminate an Employee During FMLA Leave?”

I welcome your feedback on how you would handle Fayette’s situation above.  Do you act swiftly or wait calmly before pouncing…and why?

Now, feel free to open your eyes.

This Thanksgiving, I have much to be thankful for: a wonderful family and friends, a great job, good health, loyal readers.  The economy of 2011 and beyond continues to be challenging for employers, but there still is much to be thankful for onHappyTurkey.gif this special holiday. 

For those employers open on Black Friday, may your FMLA headaches be scarce, and for those with the day off on Friday, go spend some money at those businesses open on Black Friday! 

Thanks for your continued support of our blog.  I am most grateful.

Happy Thanksgiving!

loose lips

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

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

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

Ouch.

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

Insights for Employers

A few lessons to be learned:

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