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

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

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

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

Insights for Employers

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

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

Voting is now open for the the ABA Journal’s 100 best legal blogs, and we would love to have your support!

When starting this blog, we sought to provide employers with the very best advice in handling common, yet difficult issues that arise under the Family and Medical Leave Act.  Whether it’s commenting on a significant court case or raising an issue making news, our posts consistently attempt to give employers the tools they need to effectively and lawfully administer FMLA leave.  As you might be able to tell, we love the FMLA and we’ll continue to bring it over the next year.  Thanks, as always, for your continued support.

If you find value in our blog and like what we are about on FMLA Insights, we would be forever grateful if you took a quick minute to nominate us for the ABA’s Blawg 100.  Nominating our blog could not be much easier. Click this link and complete the (very few) questions asked.  You will be asked to provide your contact information and a statement as to why you’re a fan of FMLA Insights.

As we say here in Chicago, vote early…and vote often!  (Deadline is September 9, 2011.)  Thanks in advance for your support.

When: Wednesday, August 31, 2011 (12:00 – 1:15 p.m. CDT)

On Wednesday, August 31, I will host a complimentary webinar addressing key questions and topics essential to understanding an employer’s obligation to provide leave as a reasonable accommodation under the ADA.  I am extremely pleased to be joined by EEOC Regional Attorney John Hendrickson, who has led the EEOC’s litigation regarding “leave” as a reasonable accommodation.

This webinar comes at a critical time for employers. One of the most frequent inquiries I receive from clients involves the extent to which they must provide a leave of absence to an employee with a medical condition or disability — whether before or after the employee’s FMLA leave has expired.  Employers now are even more anxious about this issue in light of the EEOC’s aggressive position that “automatic termination” provisions are invalid.  As a result, employers are left confused as to their obligations under the law.

John and I will hit these issues head on with the hope that employers leave with a better understanding of their obligations in this area of the law.  We will cover questions such as:

  • When must an employer consider leave as a reasonable accommodation?
  • What are an employer’s obligations to an employee when FMLA leave expires?
  • What must an employer do to come into compliance with the EEOC’s position on “automatic termination” provisions?
  • What is the takeaway from the EEOC’s litigation involving automatic termination provisions (e.g., EEOC v. Sears; EEOC v. Supervalu, etc.)?
  • When is a leave of absence not considered “reasonable” or an undue hardship?
  • How should employers and employee best communicate about the need for leave?

 

For several weeks now, attorneys and legal academics across the country have dissected the U.S. Supreme Court’s Wal-Mart v. Dukes (pdf) decision, which shut the door to a 1.5 million class of current and former female Wal-Mart employees who are claiming that they were denied pay increases and promotions because of their gender.  In striking down class certification, the Supremes held that there was no commonality among the member of the class, that is, no “glue” that tied all of their discrimination claims together.

The Wal-Mart decision underscores the heavy burden plaintiffs have when pursuing a case on behalf of others in a class action.  Surely, employers will use the Wal-Mart decision to fight class certification on the basis that the members of the proposed class lacks commonality.  In a post-Wal-Mart era, plaintiffs seeking to advance a class action will be forced to narrow the scope of the class and focus on policies and practices that are specific and clearly establish a discriminatory effect on a class of individuals.

Might an employer’s FMLA practices provide just what a plaintiff needs to withstand the scrutiny of the Supreme Court’s exacting standards for class certification?  Unlike many other statutes, the FMLA requires employers to adhere to a multitude of exacting rules, any one of which can trap an employer.  If an employer’s FMLA administration runs afoul of the FMLA, it could prove to be the “glue” that the Supreme Court insists is required to tie together the claims of an entire class.  Whereas the Wal-Mart class was rejected because the plaintiffs pointed to rather amorphous, vague policies of discrimination as the basis for their class action, it seems that a class of plaintiffs may have an easier time attacking a specific FMLA policy or practice whose effect creates harm across an entire group of employees.

Two recently filed proposed class actions suggest that at least some plaintiff-side employment attorneys are thinking the same thing:

  • Last week, two former AT&T employees filed a proposed FMLA class action in federal court in San Francisco, alleging that AT&T maintains a “total absence policy,” whereby FMLA-protected absences are counted against an employee just like any other absence.  In Beard and Guerrero v. AT&T (pdf), Andre Beard and Gloribel Guerrero allege that AT&T “blacklists” employees when they reach the bottom 30% of the Company’s monthly absence calculations.  Thereafter, the plaintiffs claim that employees in this category are harassed, denied promotional opportunities and “targeted” for termination.  Perhaps taking a cue from the Wal-Mart holding, the plaintiffs propose a narrowly-defined class: non-managerial and first-level managers at the Company’s call and collection centers who took FMLA leave and were in the bottom 30%.
  • Earlier this year, a proposed class of current and former Sysco employees filed suit in federal court in Chicago, claiming that the Company (through its third-party administrator, Work & Well) has continuously violated the FMLA by insisting that employees provide more medical information than is legally required in the FMLA medical certification and clarification process. In Arango v. Sysco Chicago, Inc. and Work & Well, Inc. (pdf), the plaintiffs claim that Sysco requires its employees to provide medical information such as their prescribed medications, dates of upcoming doctor appointments and detailed information regarding any medical procedures performed.  When employees do not provide the requisite information, the plaintiffs claim that Sysco denies FMLA leave, designates the related absence as unexcused and subjects the employees to a variety of adverse employment actions, up to and typically including termination.  Discovery in this case has just begun.

I share these lawsuits not to suggest that they have any merit or that they are even worthy of class certification.  It’s much too early to tell.  Moreover, the employers in these cases have plenty of good arguments to make, and the discovery process will bear that out.  However, these lawsuits simply illustrate the potential for a surge in FMLA class actions as plaintiffs’ attorneys get their hands around the Wal-Mart mandate.

Insights for Employers

So, what is an employer to do?  Several suggestions come to mind:

  1. It is imperative that employers consider whether (and how) their FMLA policies and procedures expose them to claims that can be advanced by a group or class of employees.  Strongly consider conducting a comprehensive audit of your entire FMLA administration to ensure your procedures do not violate the regulations and expose potential class claims.  A couple questions might help to guide your analysis:
    • Does your leave request form elicit necessary information without delving beyond the medical condition at issue?
    • Are you requesting more medical information than allowed through the FMLA’s medical certification form or the regulations?
    • Are you using the clarification/authentication process as a tool to convince the employee’s health care provider that an employee’s serious health condition is not valid or not as severe as stated in the medical certification?
    • Do you require blanket authorization to communicate with the employee’s health care provider before medical certification is due or before the employee has the opportunity to cure deficient certification?
    • What medical information do you require upon an employee’s return to work?  Does your practice comport with the FMLA’s return-to-work rules?
    • As to those employees who have taken FMLA leave, are there a disproportionate number who have been denied promotional opportunities or terminated (for unexplained reasons)?
    • How does your FMLA policy mesh with your attendance and other leave policies?  Are there inconsistencies?
  2. Closely analyze your relationship with any third-party administrator that conducts FMLA administration on your behalf.  Do you know how your TPA handles the questions above?  If not, find out.  Keep in mind that the employer ultimately is on the hook for the TPA’s FMLA administration.  Thus, the lines of communication between employer and TPA must constantly remain open so that you are able to obtain information, as necessary, and that you are partnering with the TPA on particularly difficult FMLA scenarios.
  3. I know I sound like a broken record, but ensure that your managers are properly trained on their responsibilities in FMLA administration.  Although front-line managers may play little to no role in the FMLA process, they are your eyes and ears of potential FMLA abuse.  Conversely, their inappropriate comments or poor handling of an FMLA situation may create significant liability.

Q.  We terminated an employee who has been reinstated by an arbitrator with full back pay.  Now, he has requested FMLA leave.  Are we obligated to provide leave even though he has not worked 1,250 hours in the previous 12 months?

A.  When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for leave under the Family and Medical Leave Act, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act (FLSA). 29 CFR § 825.110(c).  The issue here is whether an employer must treat the back pay award as the equivalent of “hours worked.”

This issue even has the courts conflicted.  In Plumley v. Southern Container, Inc., the First Circuit Court of Appeals ruled that several months of back pay awarded to an employee who was reinstated after successfully grieving his termination does not count towards the 1,250-hour requirement.  The court found that hours worked:

“include only those hours actually worked in the service and at the gain of the employer,” and not hours for which a wrongfully-discharged employee was compensated in the form of back pay pursuant to an arbitral award.

However, the Sixth Circuit Court of Appeals in Ricco v. Potter (pdf) held precisely the opposite.  Where an employee has been wrongfully terminated and is reinstated with back pay, the court held that an employer is obligated to to treat the period of time covered by the back pay as “hours worked” for purposes of FMLA eligibility.  In short, the court reasoned that an employee should be credited for the hours that he wanted to work but was unlawfully prevented from doing so.  Thus, under Ricco, if the back pay period provides the hours necessary to meet the 1,250-hour requirement, and the employee is otherwise eligible, he is entitled to FMLA leave.

From an anecdotal standpoint, I find that most employers tend to follow the Ricco holding, since the risk of following Plumley clearly could be more costly in light of the split in the appellate courts.  Interestingly, the courts have not addressed grievances that are settled and which result in some amount of back pay awarded to the employee.  Here, it seems as though the employer has a much stronger argument that the time covered by the back pay does not count as “hours worked,” since there is no finding of wrongful termination against the employer, and the parties otherwise have compromised their positions to achieve resolution.  In this scenario, my sense is that a court would be far less likely to count this period of time toward an employee’s 1,250 hours worked.

Earlier this month, Sen. Jon Tester (D-Mont.) introduced the Parental Bereavement Act (S. 1358), which would expand the Family and Medical Leave Act to provide job-protected leave due to the death of an employee’s son or daughter.  In a press release, Sen. Tester said he introduced the bill because the “last thing [parents] should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss.”  The Act would allow leave “because of the death of a son or daughter,” and it assumes leave would be taken in one block.  Like bonding leave, bereavement leave could be taken intermittently only if the employer agrees.  Like the FMLA itself, the bill would apply only to employers of 50 or more employees.

Although the Parental Bereavement Act currently has no co-sponsors, it likely has a better chance of passage than the recently-introduced FMLA Inclusion Act (H.R. 2364, S. 1283), which would provide unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent.  The latter bill, which has been introduced in Congress several times before, likely would not enjoy the support of a Republican-controlled House of Representatives, even if it were to pass the Senate. 

These bills are among several legislative initiatives that have been introduced in Congress over the past year to amend (and often enlarge) the scope of the FMLA.  The latest proposal under the Parental Bereavement Act is intriguing, since it builds upon a grass roots initiative imploring Congress to pass legislation providing job-protected leave upon the death of a child.  The initiative is led by Kelly Farley and Barry Kluger, both of whom lost children at a very young age.  Realizing that he could not take FMLA-protected leave upon his daughter’s death (because it is not provided for under the FMLA), Farley instead submitted FMLA paperwork seeking leave to care for his wife, who was dealing with depression in the aftermath of the tragic event.  In reality, he suggests, he needed leave to care for himself. 

GPS.jpgEarlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement’s placement of a GPS devise on a suspect’s vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment.  This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act. 

Clearly, FMLA abuse can literally turn a workplace on its head.  I have worked with many an in-house counsel and HR professional who would do just about anything — ahem, anything — to bring these FMLA abusers to justice.  But GPS?  It’s an interesting thought, but presently does not enjoy the support of any case law.  The closest the courts have come to address the issue has involved the use of private investigators to follow employees using FMLA and to report their findings to the employer.  However, as our friends in Texas point out, data from a Global Positioning System may very well be the next frontier for discovery during litigation.  For instance, might we subpoena GPS or “Onstar” data during the discovery period so as to defend our employer clients in the future?  If we can legally do so, absolutely!

Insights for Employers

In the meantime, employers, let’s not get ahead of ourselves.  Until the courts provide more guidance on the (legal) use of GPS tracking of FMLA leave, we might consider implementing these options first:

  1. Check in on the employee while he or she is on FMLA leave.  My clients have far greater success combating FMLA abuse when they maintain regular contact with an employee who is out on FMLA leave.  You need not approach this practice in a combative kind of manner — maintain a “check-in” policy for employees out on leave, and apply it in a consistent manner.  That said, be mindful of our previous post regarding Terwilliger v. Howard Memorial Hosp., in which the court found that “weekly calls” to the employee may constitute FMLA interference because it could have the effect of discouraging FMLA leave. 
  2. Certify and re-certify.  The certification process is your best tool to fight FMLA abuse.  Thus, where the pattern or duration of leave changes, obtain re-certification.
  3. Surveillance.  Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest.  Before heading down this path, make sure it is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements.  Where a CBA is involved, surveillance arguably needs to be bargained with the union.
  4. Enforce call-in procedures and where the employee does not meet them, follow your disciplinary policies (unless the employee was unable to notify due to unusual circumstances).
  5. Personal certification.  Some employers have required as part of their usual and customary practice that an employee sign a “person certification” acknowledging that he/she took time off for FMLA or another medical reason.  If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline.
  6. Keep training your managers.  Front-line managers often are ill-equipped to identify the possible need for FMLA leave and to interact with the employee to obtain lawful information about their medical condition to which the employer is entitled.  Employers reduce the risk of litigation and ultimately save money when they train all managers to properly manage an employee with a medical condition.

On June 27, 2011, the United States Supreme Court agreed to review an FMLA case in which the Court will decide whether a State can be sued under the Family and Medical Leave Act where the employee is seeking leave due to his or her own serious health condition.  In lawyer-speak, the question specifically involves “whether Congress constitutionally abrogated states’ 11th Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.”  Although the issue may at first blush appear to be rather dry and inconsequential to the FMLA practitioner, the decision clearly will impact whether a State can be sued under the FMLA where the issue involves one of “self-care” under the Act.  Coleman v. Maryland Court of Appeals (pdf).

In Coleman, the plaintiff was employed by the Maryland Court of Appeals and sought FMLA leave to care for his own serious health condition.  He later claimed his FMLA leave was denied in retaliation for his complaints of wrongdoing in his office.  In a decision that only an FMLA geek like me may find fascinating, the Fourth Circuit Court of Appeals ruled that Congress did not validly strip states of their “immunity” to claims under the FMLA in this specific instance.  As a result, the appellate court upheld the dismissal of the lawsuit.

The cases hinges on the interpretation of the 11th Amendment to the U.S. Constitution, which bars claims in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity.  In order to do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power.  The high court now will make the final decision.

Public employers should take note of and follow this case, which will be considered by the Court in its next term.  The parties’ briefs in the case before the Court can be found at the SCOTUSblog.

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

The Facts

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

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

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

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

Insights for Employers

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

As state governments across the country scramble to plug large holes in their own budgets, they are digging deeper into employers’ pockets.  Earlier this week, the Connecticut General Assembly passed legislation that will require employers within the service sector (and with more than 50 employees) to provide paid sick leave to their employees, making the state the first in the country to pass such legislation.  (The Connecticut governor has indicated his signature soon will follow.)

As reported by Daniel Schwartz in the Connecticut Employment Law Blog, “service” workers within the state will accrue 1 hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours or 5 business days.  According to the New York Times, the legislation will cover approximately 200,000 to 400,000 workers, including waiters, cashiers, fast-food cooks, hair stylists, security guards and nursing home aides.  However, it exempts manufacturers, nonprofits, as well as salaried workers, independent contractors, temporary workers and day laborers.

Employees will be able to carry over up to 5 days paid sick leave each year.  Under the legislation, employees would be able to use paid sick leave for their own or their child’s or spouse’s health condition; medical diagnosis, care or treatment of a health condition; or preventative medical care.  Paid sick leave also could be utilized for time off if the employee is a victim of family violence or sexual assault.

Insights for Employers

A few municipalities have enacted paid sick leave legislation (San Francisco in 2006; Washington D.C. and Milwaukee in 2008), but Connecticut is the first state to do so.  And as reported by the New York Times and Wall Street Journal, even more cities and states are poised to make the jump to mandatory paid leave for employees.  Other states, like California, have considered similar proposals (the latest bill would have mandated seven paid days), but do not yet have the votes to pass such legislation.  Notably, the National Partnership for Women and Families reports (pdf) that 20 cities and states currently are considering some form of paid sick leave for employees.

At a time when Congress has stalled in passing legislation to broaden the Family and Medical Leave Act, many states appear ready to take the baton and run with it.  Employers across the country should be mindful of sick leave legislation pending in their own state to determine how such legislation might impact their business.