Porn and the FMLA. This has all the makings of one big, fat men’s soap opera.

Johnnie Walker was a longtime police officer with the Pocatello Police Department, and he was tasked with investigating Scott and several other members of the police department’s administrative team because these jokers allegedly were accessing porn on their work computers.

We never did learn what came of that porn investigation.

But as the story goes, Scott later became the Pocatello police chief. And like all good soap operas, Chief Scott apparently was still peeved that Johnnie led the investigation into his alleged computer habits.

In other words, it was pay back time.

Shortly after becoming chief, Johnnie took FMLA leave. Chief Scott used it as a quick opportunity to conduct surveillance on Johnnie’s whereabouts during his leave of absence. For good measure, Scott also drafted a memo to Johnnie’s personnel file outlining all the work Johnnie did not complete while on FMLA leave.

The police department never denied Johnnie’s FMLA leave. In fact, it gave him the FMLA leave he requested and then some. And he was not terminated. Still, Johnnie set off for the courthouse and filed both FMLA interference and retaliation claims.

The court had concerns about Chief Scott’s actions too. In allowing Johnnie’s FMLA claims to be heard by a jury, the court was troubled that surveilling an employee without any basis might “chill” an employee from taking FMLA leave:

Walker contends that the Police Department engaged in actions which had the effect of deterring the exercise of FMLA rights. Specifically, when defendants had doubt about the validity of Walker’s medical condition, they did not simply request another medical opinion as contemplated by the regulations. Instead, they tracked Walker, and surveilled his activities on his own property by setting up a police surveillance camera and helping him set them up on his neighbor’s fields . . . There is a genuine issue as to whether the Police Department’s invasive surveillance of Walker’s private activities would “chill” his use of FMLA, and whether they were negative consequences of Walker taking FMLA leaveWalker v. City of Pocatello

Insights for Employers

Often enough, clients ask me whether they have the right to conduct surveillance on an employee they suspect is abusing FMLA leave.  Courts generally support an employer’s right to do so where there is a clear concern that the employee is abusing FMLA leave, as the court did here in one of my previous posts.

Policies

Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest with their use of leave.  Before heading down this path, however, it is critical that surveillance 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 also may need to be bargained with the union.  Also, maintain a policy regarding the fraudulent use of FMLA leave.  Not currently in your policy? Have your employment attorney update your policy now, as this type of provision is a gem to hang your hat on when you have to defend an FMLA claim involving a (former) employee suspected of misusing FMLA leave.

Are Second opinions Necessary?

Must the employer seek a second opinion before surveilling an employee?  Not necessarily, and I think the court overstepped here by insisting that the police department should have done so here.  Before pulling the trigger on surveillance, however, it is critical that the employer have an objective basis for believing that an employee is abusing a leave of absence, for instance:

  • Inconsistent reasons for leave
  • Significant changes in frequency or duration of the absences, such that leave appears to be suspicious
  • Reliable information you receive from the employee’s co-workers about his misuse of leave
  • Suspicious patterns of absences over a short or longer period of time

Have an Objective Basis for Seeking Surveillance

In Johnnie’s situation, it appears as though the police department fell woefully short of establishing an objective basis for seeking surveillance. Because there was no honest belief that Johnnie was misusing his FMLA leave, there was no objective basis for conducting surveillance. Consequently, a court — and therefore, a jury — is left to believe that the surveillance (and the notes to file) are attempts to chill an employee’s use of FMLA leave. As this particular court points out, that may very well be an FMLA violation.

bullyI hate bullies.

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

I’m convinced Sister never met a bully.

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

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

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

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

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

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

Insights for Employers

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

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

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

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

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

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

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

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

Insights for Employers

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

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

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

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

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

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

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

calling-sick-bubble.jpgThis scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve.  Due to seniority or the employee’s last minute request for time off, her leave request is denied.  However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can’t work due to a flare up of her chronic bad back.

Plenty of employers just mark these days off as FMLA leave.  But they often do so with a whole lot of regret and with a wish they could do something more to push back on what they believe is a suspicious leave request.

But employers can push back, and here’s how…

Unfortunately, the FMLA regulations give employers little guidance when dealing with a leave request like the kind above.  However, the regulations relative silence on this issue opens the door to lawful maneuvers by employers to get to the truth.  Let me explain the ways:

1.  Enforce your rights at the medical certification stage.  If this is an initial medical certification of a serious health condition, I would consider including a cover letter addressed to the employee (to be shown, in turn, to the health care provider) noting that the employee’s request for FMLA leave covers precisely the same days for which the employee just recently sought vacation leave.  As a result, you explain to the employee that you are (rightfully) concerned whether leave on these particular days actually are consistent with the employee’s alleged serious health condition and the pattern of absences.  In your letter, you ask that the health care provider specifically confirm this in the certification.

A risky move?  It’s not a conservative move, I admit, since this approach is not specifically sanctioned in the regulations (at least for an initial certification).  However, I also would be perfectly comfortable arguing to the DOL that that this approach does not remotely interfere with the employee’s substantive FMLA rights.  In taking this approach, you are making no determination as to the merit of the leave request just yet.  You simply are enquiring further since it’s necessary to obtain more information to ensure FMLA leave actually is being sought.  This kind of inquiry arguably is allowed under the regulations at 29 CFR 825.302(c).

The practical impact of this move: Even though the health care provider likely will confirm that your employee was incapable of working on Christmas Eve and NYE [author’s note: what a coincidence!], it sends a message to your employee that you take your own FMLA rights as the employer seriously and will vigorously enforce them to ferret out possible FMLA abuse.  The true impact of this move will be felt the next go around when the employee thinks twice about abusing leave time.

2.  Enforce your rights by seeking clarification and/or a second opinion.  This situation is fishy enough that it creates reason to doubt the validity of a certification that supports the absence.  Before moving toward a second opinion, however, employers should work with the employee to cure the certification and seek to clarify it with the health care provider.  During this process, you may learn information that either supports the merits of the employee’s leave request or, conversely, casts further doubt on the validity of the certification.

3.  Enforce your rights at the recertification stage.  If you already have medical certification on file, the timing of the FMLA absences on the same days that were requested and denied earlier as vacation arguably constitutes “a significant change in circumstances” from the previous certification which, in turn, allows the employer to request recertification.  Similar to point No. 1 above, I would recommend including (directly to the health care provider) the pattern of the suspicious leave requests and requesting that the doctor confirm whether the need for leave on these precise days is consistent with such a pattern.

4.  Consider implementing a personal certification procedure.   Some employers require 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.  Keep in mind, though, that this practice should be usual and customary; otherwise, employers fall prey to claims of discrimination (i.e., requiring one employee but not another to complete the personal certification).

5.  If the abuse is particularly bad, termination may be appropriate (in extreme cases).  In an earlier blog post, I highlighted Rydalch v. Southwest Airlines (pdf), which is a fabulous case for employers.  Here, Southwest found that the plaintiff was abusing FMLA leave by taking leave in conjunction with other vacation days he requested off.  Southwest relied on its honest belief that the plaintiff was abusing leave, and the court agreed.  As a result, the court dismissed the plaintiff’s FMLA claims in their entirety.

A similar case is Crouch v. Whirlpool Corporation, in which the employer had an honest belief that its employee was using FMLA leave for vacation purposes instead of recovering from an injured knee. 

Employers, all hope is not lost.  Use the tools above to probe further on leave requests, particularly when they are part of a suspicious leave request or an unusual pattern of absences.  In doing so, you properly assert your FMLA rights and serve warning to your employees that FMLA abuse will not be tolerated.

 

shoppingphoto2.jpgReports on the street indicate that people literally are lining up and begging for the last seat for a complimentary FMLA webinar I am hosting this Thursday, December 6.  (See right.)  The good thing is that, as subscribers to our blog, you and your colleagues still can sign up.  (See details below.)  I hope you can join us.  I can’t imagine anything more exciting this holiday season, and I am sure you agree!  [Insert sarcastic reply here.]

FMLA Made Easy: Effectively Managing Difficult FMLA Issues

Thursday, December 6, 2012 (12:00 – 1:30p.m. CST)

Click here to register for the webinar   

Overview of the Webinar

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job.  Moreover, intermittent leave is the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report. 

But why must it be so difficult?

In this complimentary webinar, Franczek Radelet partner Jeff Nowak, Matt Morris, vice president at FMLASource, and Tamika Lynch, counsel at Siemens Industry, Inc., will tackle some of the most common FMLA conundrums and offer practical advice to employers in addressing these situations.  Using real life situations from their own wealth of experience dealing with the FMLA, our presenters will cover topics such as:

  • Unique issues when caring for an adult child or a family member
  • Responding to inadequate or incomplete medical certification (or one that’s never turned in!)
  • Recertifications: what employers can ask for when circumstances have changed or the validity of leave is in doubt
  • Fluctuating work weeks and its impact on an employee’s FMLA allotment
  • “Honest Belief/Honest Suspicion” cases: taking action against FMLA abuse
  • Managing the second opinion process
  • ADA meets the FMLA: what employers should do when an employee’s FMLA leave is exhausted and he/she still can’t return to work

Click here to register for this complimentary webinar.  Please also email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

beer_of_the_month.jpgEmployers and fellow FMLA nerds, consider this an early holiday present: Courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.  

This is a longer than usual post, but hang with me, as I share some best practices below.  

Take the situation of Sara Jaszczyszyn.  (We’ll call her Sara, for short.)  Sara worked for Advantage Health Physician Network as a customer service representative where she spent most of her day talking with customers by telephone.  As the result of a car accident several years earlier, Sara experienced back pain, which began to worsen shortly after her employment started. 

Sara first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four “flare ups” per month and that each flare up could last anywhere from a few hours to a few days. When they occurred, Sara could not perform all of her job functions.

After obtaining this certification, Sara took it as carte blanche to remain absent for a continuous, open-ended period of time.  After early September, Sara remained absent.  

While Sara was on FMLA leave, she attended “Pulaski Days,” a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara’s co-workers weren’t amused, since they “were covering for her” (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren’t, several of Sara’s co-workers complained to their boss, who then viewed the Facebook pictures.  

We know how this story ends, right?  Indeed!  Days later, Sara’s employment was terminated.

Sara’s FMLA Claims are Dismissed because the Employer Flawlessly Handled the Situation

After her termination, Sara filed FMLA interference and retaliation claims against Advantage. However, these claims were quickly dismissed.  

Why?  Because the employer responded precisely in the manner it should.  

After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was “completed incapacitated.”  

Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her “complete incapacitation” and the Facebook photos.  Sara’s response?  She “was in pain at the festival and was just not showing it.”  After that excuse failed miserably, her next response was telling.  You guessed it: silence.

Insights for Employers

What must an employer establish when it terminates an employee for FMLA abuse?  That it had an honest belief the employee was engaging in fraud. In other words, it must show that it reasonably relied on the particular facts at issue, even if the employer is later proven to be mistaken in its belief.  An employer effectively advances this defense only when it conducts a complete and exhaustive investigation into the alleged facts.  

Here, Advantage’s investigation served as Defense Exhibit A in dismissing Sara’s FMLA claims because it was able to show that it conducted a complete and exhaustive investigation into the facts at issue. Look above at Advantage’s investigation: it confirmed the scope of Sara’s need for FMLA leave; it asked Sara explain in her own words what her limitations were; it had her acknowledge the importance of combating fraud in the workplace; and then, after obtaining these admissions, it lowered the boom by introducing the Facebook pictures. At that point, did Advantage really even need to inquire further? Sara’s underwhelming response when faced with the pictures was evidence enough. See the court’s opinion in Jaszczyszyn v. Advantage Health Physician Network (pdf) here.

I regularly remind my clients: even when you have have caught an employee red-handed in fraud or inappropriate conduct, there is absolutely no substitute for a complete and exhaustive investigation into the facts.  Why?  Courts and juries insist on it.  It simply is human nature to assume that all employees will be afforded some level of due process — i.e., the chance to respond to the allegations and defend themselves — before a termination decision is made. When employers don’t afford an employee this opportunity, the risk of litigation and an adverse ruling increases significantly.  Follow Advantage’s lead, and set yourself up for a strong defense.

Still interested in how an employer can effectively advance an “honest belief” defense?  We’ll cover this topic head on during our December 6 webinar, which you can register for here.

By now, you’re really interested in seeing Sara’s Facebook pics, aren’t you?  Eric Meyer of the Employer Handbook has them here.

webinar.jpgI’ll admit it: I am longoverdue to host an FMLA webinar for employers.  Wait no more!  I have partnered with two fabulous attorneys — Matt Morris of FMLASource and Tamika Lynch of Siemens Industry — to hit head on a number of FMLA juggernauts that all of us face everyday. 

Please join us on December 6, 2012 (12:00 – 1:30p.m. CST) for FMLA Made Easy: Effectively Managing Difficult FMLA Issues.   I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover.  What’s the best part?  It’s FREE!  So, you have no excuse not to join us, right!?!  Click here to register for the webinar.   

Overview of the Webinar

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job.  Moreover, intermittent leave is the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report. 

But why must it be so difficult?

In this complimentary webinar, Franczek Radelet partner Jeff Nowak, Matt Morris, vice president at FMLASource, and Tamika Lynch, counsel at Siemens Industry, Inc., will tackle some of the most common FMLA conundrums and offer practical advice to employers in addressing these situations.  Using real life situations from their own wealth of experience dealing with the FMLA, our presenters will cover topics such as:

  • Unique issues when caring for an adult child or a family member
  • Responding to inadequate or incomplete medical certification (or one that’s never turned in!)
  • Recertifications: what employers can ask for when circumstances have changed or the validity of leave is in doubt
  • Fluctuating work weeks and its impact on an employee’s FMLA allotment
  • “Honest Belief/Honest Suspicion” cases: taking action against FMLA abuse
  • Managing the second opinion process
  • ADA meets the FMLA: what employers should do when an employee’s FMLA leave is exhausted and he/she still can’t return to work

Click here to register for this complimentary webinar.  We look forward to your participation.  In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.