Thanks to those who attended my webinar last week with Matt Morris on “Six Ways Your Managers Are Causing FMLA & ADA Leave Lawsuits, and How to Train Them to Stop.” A link to the recording can be accessed here (just requires providing some basic info about you) and the presentation PowerPoint can be downloaded here.

To those who attended, thank you.  To those who missed it, you still have time to access the recording.  As promised, Matt and I provided a road map of all the necessary issues to address in an FMLA training session, including case studies you can use with your managers.

In this session, we provided you material to train your managers in six key compliance areas:

  • The Space Case: The manager who should have known the employee put the manager on notice of the need for FMLA leave, but failed to do anything about it.  In most training sessions, you will spend most of your time here, since you want your managers to be able to recognize when an employee may need a leave of absence for a medical condition and what they should do with this information.
  • The Lazybones:  The manager who knew the employee needed a medical leave of absence, but failed to direct the employee’s request to the proper channels.  As a result, the employer fell out of compliance and risked FMLA liability.
  • The Head Stuck in the Book:  The manager who fails to recognize patterns of FMLA abuse, such as Monday/Friday absences, absences in conjunction with holidays, and when managers learn of information indicating that the employee is misusing FMLA leave.
  • The Oversharer:  The manager who responds inappropriately to an FMLA leave request, such as telling the employee “it’s not a good time to take leave,” or making a snide comment about an employee’s leave of absence in an email.
  • The Badgerer: The manager who requires an employee to perform substantive work while on FMLA leave or keeps bugging an employee when they should not be working while on FMLA leave.
  • The Troublemaker: The manager who tainted the termination decision by injecting his discriminatory tendencies into the decision-making.

Of course, we ended with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye Bumbling Managers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I hired a volatile manager, his name was Ross 

He’s always on a power trip, people call him “The Boss”

He tends to fire those with da gout or chronic IBS

Oh tidings of FMLA . . . FMLA . . . Oh tidings of FMLA

* * *

Ross told his secretary “It’s a bad time for medical leave”

Then he gave her a parting gift, a book called “No More Hysterectomy”

I’m worried what next slur he’ll use at our 3pm meeting

Oh tidings of FMLA . . . FMLA . . . Oh tidings of FMLA

* * *

This law is a wonder, this law is chore

It makes me scared to hire employees anymore

But if I don’t train (or fire) Ross, come tomorrow

I will find the DOL at my front door!

* * *

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

Happy Holidays!

moveovertime.jpgQ:  Is an Employer Liable for Overtime Pay and similar damages for an FMLA Violation? 

A:  The FMLA provides for a broad range of damages in the event an employer is liable for an FMLA violation.  The statute states that an employee may be awarded “any wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the [FMLA] violation.”  As my colleague Staci Ketay Rotman points out in her wage and hour blog article, damages also likely include the amount of overtime the employee would have earned during the period covered by the FMLA violation.

In an FMLA case highlighted by Staci, a federal court estimated that a plaintiff who prevailed on his FMLA retaliation claim would have worked 6.5 hours of overtime per week over the 125-week period between his termination and the judgment.  The court arrived at this figure using an average of the plaintiff’s weekly hours during the four months preceding his termination. Notably, the court apparently found that the year-to-date average was more reliable than a 12-month average for determining how much overtime the plaintiff would have worked had he not been terminated.

100.jpgThere must be something in the water.  Over the past few months alone, I have reviewed a number of employers’ policies and correspondence regarding an employee’s return to work from a leave of absence.  What has been surprising to me is the number of employer policies that require an employee to return from leave with “no restrictions” or “100% healed.”  Consider the following requirement, which was embedded in an employer’s return to work notice at the conclusion of FMLA leave:

As your FMLA leave is nearly exhausted, we expect you to return to work on April 2, 2012 with a note from your physician stating that you are able to work with no restrictions.

Or take this one, which a third party administrator proposed to one of my clients for use in correspondence sent with the Company’s FMLA Rights and Responsibilities Notice:

In addition, [the Company] cannot accept light duty restrictions upon your return to work.  If you are unable to return to work without restrictions, you must remain on leave until you are able to return without restrictions.

¡Ay, caramba!  Really?

What’s the Problem with a “No Restrictions” Approach? 

When employers require that employees be 100% healed or have no restrictions upon their return to work, the far majority of employer labor compliance courts have found that these policies discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation under the Americans with Disabilities Act.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Not all courts feel this way, of course.  Recently, in Powers v. USF Holland (pdf), a federal appellate court found that “100% healed” policies are only problematic if the employee can show he or she is actually disabled or is regarded as disabled.  Hmmmm…that doesn’t make me feel too comfortable.  Interestingly, this decision applied pre-ADA Amendments Act (ADAAA) law and regulations because the facts pre-dated the ADAAA.  However, even this conservative Seventh Circuit court warned employers:  “The risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”

The Powers decision certainly echoes the EEOC’s position, which has long held that these policies violate the ADA.  In fact, late last month, I had the chance to serve as a fellow speaker on ADA and FMLA issues at a DMEC conference with Chris Kuczynski, the EEOC’s Assistant Legal Counsel and Director of its ADA/GINA Policy Division.  At the conference, Mr. Kuczynski reminded employers that they face significant risk under the ADA if they maintain a policy that requires an employee to return to work without restrictions (for the reasons stated above).

Insights for Employers

Given the much broader regulations implementing the ADAAA, employers that still enforce “100% healed” policies or require evidence that employees can return to work “without restrictions” take on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC’s recent litigation in this area, this evaluation is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation.

maryland_flag1.jpgThat pesky State of Maryland! (Not that I hold grudges all these years after your Maryland Terapins beat my Indiana Hoosiers for the 2002 NCAA basketball championship!) 

With a little assistance from the U.S. Supreme Court, the State of Maryland avoided potential FMLA liability yesterday in Coleman v. State of Maryland Court of Appeals when the Supremes held that the Family and Medical Leave Act does not allow lawsuits against states by their employees when the suit deals with the “self-care” provisions of the FMLA.  Consequently, Maryland’s victory is a win for all states and their subdivisions. 

The Facts

Plaintiff Daniel Coleman worked for the Maryland Court of Appeals.  A good employee by all accounts, Coleman requested FMLA leave as a result of his own alleged serious health condition.   Instead of providing leave, however, the Court of Appeals fired him.  Not surprisingly, Coleman sued his employer.

Maryland asked the trial court to dismiss Coleman’s lawsuit because it was barred by Maryland’s sovereign immunity.  What is sovereign immunity?  It is a legal privilege under which federal, state and local governments cannot be sued unless they agree to be sued.  (Wouldn’t that be a neat trick for the rest of us private citizens to invoke, too?)  In order to work around the privilege of sovereign immunity and allow private lawsuits against state entities, Congress has to show that the self-care provision of the FMLA remedies a pattern of gender-based discrimination (or some other form of legally cognizable discrimination) in states’ sick leave policies.  Here, Maryland argued that the self-care provision of the FMLA was passed pursuant to the Commerce Clause of the U.S. Constitution, which cannot be used to bypass the states’ sovereign immunity. 

The trial court and appellate court agreed.  And so did the Supreme Court.  For several of the conservative justices, the decision was an easy one, since there arguably is little evidence that Congress passed the self-care provisions of the FMLA to right the wrongs of gender discrimination.  However, in an interesting exchange during oral argument before the high court, Justice Samuel Alito seemed concerned by the apparent unfairness of the result here — that state employees would have no legal recourse in the event they were denied FMLA leave for self-care or terminated because of the need for leave.  Ultimately, Justice Alito suggested that an employee still could seek an injunction to stop the employer from violating the FMLA, even though the employee could recover no monetary damages. 

Insights for Employers

Keep in mind that this decision only affects employees of the states and their subdivisions.  Therefore, public employers cannot to be sued under the “self-care” provision of the FMLA (so long as they have not voluntarily ceded their sovereign immunity with respect to the FMLA).  Other forms of FMLA leave (e.g., caring for a family member), however, still remain protected. 

Interestingly, the Supreme Court has not ruled on whether states can be sued under the FMLA for “bonding” leave and similar forms of FMLA leave.  Thus, public employers should be cautious when seeking to deny FMLA leave for reasons other than self-care.  

Similarly, it is vital for employers — public and private alike — to enforce sick leave and FMLA policies consistently to avoid claims of discrimination.  Failing to do so could subject you to liability under other federal, state or local employment laws.

Wal-martFor 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.