File this in the “Managers really can be idiots” folder.

Kameisha applied for a job at Jersey Mike’s Subs (which by the way, makes an incredible #13 Original Italian sub). At the time she interviewed for a position, Kameisha was four months pregnant. Fearing she would not get the job if she revealed her pregnancy, Kameisha chose not to inform the manager, Marcos, of her exciting personal news during the interview.

As the story goes, she got the job, and after putting in a few days’ work, Kameisha informed Marcos that she was pregnant.  She also made clear that she needed her job to take care of herself and her new baby.  In other words, she was dedicated to the Jersey Mike’s cause.

Marcos responded by text, and here’s what he said:

Hello, I’m sorry to inform you but it’s not going to workout with Jersey Mikes. It’s not a good time for us to have someone who is leaving for maternity leave in several months anyways. You also failed to tell me this during our interview. Good luck to [you].

What in the holy hell?

According to a local news station, Marcos resigned his employment. Although she’s been offered her old job back, Kameisha declined. But after posting the text message on Facebook, she’s made it clear she plans to sue.

Ouch. Would you blame her for doing so?

Insights for Employers

There are plenty of lessons here for employers.

1.  The Interview. The text is awful, god awful. The sentiment behind it even worse. But let me start with the manager’s comment, “You also failed to tell me [of your pregnancy] during our interview.” I hear this from time to time from clients who are peeved after extending an offer to a candidate who shortly thereafter informs my client that she’s pregnant.

Why don’t they just come clean during the interview, my clients want to know.

Well, I tell them, because they’re worried about guys like Marcos. 

I wish this were a world where candidates could disclose their pregnancies during the interview process so that both sides could have a meaningful, supportive conversation about how the pregnancy and time off after childbirth will be accommodated and this joyous occasion celebrated. But this ain’t Utopia. Sadly, there are some managers like Marcos out there who ruin it for the rest of us.

Marcos’ reaction about the interview is a guide for us. The candidate has no obligation to tell us she’s pregnant, nor are we allowed to ask. For good reason. So, don’t hold it against her when she later informs you of her pregnancy. Respond with joy and support. Take it a step further and share how excited you were when you had your first child and what a blessing it was in your life. In the moment, don’t be afraid to be vulnerable, too. Then, work hard to figure out how you will accommodate the maternity leave, not simply because oodles of states now require it, but because you’re a good boss.

As a result, I’m willing to bet more times than not this employee will go to the wall for you to make the best damn #13 Italian original sub your customers have ever tasted.

2.  Employees Should Have a Clear Path to Complain.  My friend, Jon Hyman, who beat me to the punch in blogging about this incident on his fabulous employment blog, argues that more training isn’t necessarily the answer here.  Jon’s point:

If a manager does not know that you can’t fire a woman because she’s pregnant, no amount of training in the world is going to help that manager not discriminate.

Just as important, Jon argues, is that employees should have a clear path to complain about incidents like these. When they don’t, they resort to posting this kind of stuff on Facebook. This makes sense. During employee orientation and regularly thereafter, employers must put front and center its stand against workplace discrimination and harassment, ensure employees know precisely how to report discrimination or harassment internally, and then back this up with a quick and effective response to their report.

3.  Training Still is Important. I agree with Jon that “training won’t fix stupid.” But don’t throw training out the window. Please, please, please train your employees on how to effectively and lawfully respond to an employee informing you of a pregnancy or for a leave of absence for a medical reason. Included in this training, of course, should include as stern a warning possible against any comments of the kind above. Train them on how they interact with employees in precisely these situations (use role play!) so they understand your expectations, despite some of their wayward tendencies. Investing a couple hundred bucks now to conduct effective training will maximize your chances of saving tens of thousands when the real life Jersey Mike’s situation presents itself.

4.  Don’t terminate any employee by sending them a freaking text message! Need I actually explain this? [Waits a moment . . . ] Ok, good, glad you understand. (Hat tip: Stuart Silverman)

Parental leave policies are on the rise.

Maternity. Paternity. Caregiver. You name it. I am drafting more of these policies than ever before.

So, you can imagine my interest when, last year, the EEOC sued skin care/fragrance behemoth Estée Lauder, claiming that its parental leave policies discriminated against men. According to the EEOC at the time, Estée Lauder provided eligible new mothers six weeks of paid parental leave for child bonding (in addition to leave for recovery for childbirth), but only offered new fathers two weeks of paid bonding leave.  The Company also apparently provided  flexible return-to-work benefits to moms that were not offered to dads.

In unison, new dads across America booed and hissed loudly [of course, while we spritzed on our “Lauder for men” cologne].

A New Era at Estée Lauder

I never have been able to get my hands on that elusive Estée Lauder parental leave policy. So, I have no idea whether its policy effectively discriminated against men (as EEOC claims) with respect to bonding leave and other benefits.

But after reading my good friend Marti Cardi‘s blog post, I now know that Estée Lauder has settled the infamous EEOC lawsuit for a $1.1 million payment to a class of dads and a consent decree that requires the Company to avoid treating dads in a discriminatory manner.

In defense of Estée Lauder, it’s important to note that the Company announced earlier this year that it would significantly sweeten its parental leave benefits for both women and men who regularly work 30 hours per week.  According to a Business Insider report (as reported by HR Dive), the Company now offers:

  • Six to eight weeks to moms for recovery from childbirth
  • An additional 20 weeks of paid leave for bonding (available to moms and dads)
  • $10,000 toward adoption expenses
  • A back-to-work transition program (regardless of gender or sexual orientation)

The company reportedly will also continue to offer $20,000 toward fertility treatments and in-home child care and elder care at reduced rates.

That’s a pretty fabulous parental leave policy, says me, the father four times over.

Insights for Employers

Are you thinking of creating your own parental leave policy?  Or sweetening benefits in a leave policy you currently offer your employees?  Here are a few nuggets you might consider to ensure your parental leave policies are up to snuff:

  • You choose Eligibility Requirements, not some Federal agency. Employers have the right to set eligibility for parental leave benefits. You are not obligated to provide these benefits on day one of employment. (Estée Lauder, for example, requires at least three months’ service time, and other employers often require up to 12 months of service).  Clearly, you can require some period of service before accrual, as you likely do with other employment benefits.
  • Moms vs. Dads. You can treat women who give birth better than men. Really, you can. And you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn’t it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery? Me thinks so, too. Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees.  (See example 14 in the guidance.)
  • But let’s not get too crazy about Moms vs. Dads. Although the EEOC makes clear that you can treat mom better to allow her to recover from childbirth, employers cannot treat the sexes differently when it comes to bonding leave. [Ahem, just ask Estée Lauder.] In its pregnancy discrimination guidance, the EEOC makes clear:

“for purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.”

If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), it must provide the same leave to men or risk a gender discrimination claim. The logic behind the EEOC’s position is clear—dads need lovin’ too.

This is the takeaway of the Estée Lauder case.  Let me be clear: when it comes to bonding leave, you cannot treat men differently from women. If you currently take this approach, change it now.

  • Parents getting busy don’t get extra! Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period?  Crazier things have happened, and you have every legal right to limit the benefit over a period of time.
  • Exhausting other paid leave prior to parental leave is legal. Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay.  The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions.  That said, consider employee morale here and think about allowing employees to hold back a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).
  • Run FMLA leave concurrently with parental leave. Just do it. You have a legal right to do so. ‘Nuff said.  If you don’t do this, you might just start wondering why your employees are away from work more than they’re at work.
  • Primary vs. secondary caregiver provisions are not for the faint of heart. Ay de mi! The plot thickens! I am convinced oodles of HR professionals attended a SHRM conference a few years back in which some charming presenter encouraged them to draft parental leave policies providing leave for the “primary” vs. “secondary” caregiver in the family. And now, we’ve created a mess. Technically, these provisions are fine, but they surely can be a challenge to administer. So you have an employee sign a document acknowledging that they are the “primary” caregiver so they can get more leave. Whoa – sign me up, along with every other individual you employ.  Note: Draft primary vs. secondary care giver at your own risk (and only after you consulted an employment attorney).
  • If you need a sample paid FMLA policy (covering parental leave and other forms of family and medical leave), I have you covered. Last year, I partnered with non-profit organization Panorama to prepare such a policy, which can be accessed (for free!) here.

Poorly implemented FMLA policies and procedures are in the spotlight this week.  And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.

Their mistakes, however, are golden lessons for the rest of us.

Confusion Over How Much Maternity Leave is Provided

In Sad Employer Story No. 1, Bhavani sought leave to give birth to her child and to bond with the child. No sweat, said the employer, who had surely gone through this exercise before.  The employer maintained both an FMLA policy and a standalone “maternity leave policy,” which read (in part) as follows:

Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave.

At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.

Notably, these two policies were completely silent on whether FMLA leave and maternity leave ran concurrently or consecutively.

To make matters worse, the employer failed to provide Bhavani the critical FMLA Notice of Eligibility or Designation Notice, so she didn’t have a clue what was coming or going when it came to FMLA leave.

When Bhavani later was terminated when she did not return to work on time, she cried foul, claiming that the employer’s policies and lack of notice led her to believe she was entitled to additional leave. The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether Bhavani’s employer violated the FMLA when it declined to give her additional leave.  Rengan v. FX Direct (pdf)

Confusion Over How Much Notice an Employee Should Provide When Requesting FMLA Leave

In Sad Employer Story No. 2, Lisa injured her shoulder while falling through the hatch of a catamaran boat.

Ouch. That couldn’t have felt very good.

As a result, Lisa requested and was granted FMLA leave beginning in early July. On her leave of absence form, Lisa indicated that her return date would be July 31. Her physician later cleared her to return not on July 31, but on August 4.

In Lisa’s employee handbook, it stated:

If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.

But then it also mentioned this:

If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date.  (My emphasis, not the court’s.)

A bit confusing. In Lisa’s situation, the employer considered July 31 to be her last day of FMLA leave (since that’s the date she originally indicated). Therefore, when Lisa was a no-show on August 1, it considered her to have voluntarily resigned her employment. After all, that’s what the policy says, right?

Not so fast. The policy also states that Lisa has four business days to inform the employer of the need for FMLA leave. That’s practically a lifetime. So, when the employer terminated her employment without giving her up to four business days to comply, the court found that the employer potentially violated the FMLA. Perry v. Isle of Wight County  (pdf) My friend, Eric Meyer, has a good synopsis of the case here.

Insights for Employers

A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures:

  1. Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave. The FMLA regulations allow employers to run paid leave concurrently with FMLA, so do it.  And make it crystal clear in your policy.
  2. When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, it must provide the individual notices to the employee.
  3. Draft and maintain very clear call-in procedures, and ensure they are demanding. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” What kind of useless parameters are these? Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”  If you are inclined to be a bit more generous, consider cutting it back from the four business days allowed by Lisa’s employer. These lengthy reporting grace periods frustrate your ability to properly staff your operations, lead to misuse of FMLA and, as here, they create easy opportunities for you to violate them, resulting in expensive attorney’s fees and potential liability.

TrumpEvery other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical leave, of course!

How likely is employee paid leave to become reality in a Trump administration?  In short, don’t bank on it.

Trump’s Position on Employee Paid Leave

On the campaign trail, Mr. Trump did not offer a detailed position on federally-mandated paid leave for employees, though it certainly is notable that he was the first Republican presidential nominee to propose paid maternity leave for employees across the country.  Under his proposal as highlighted on his campaign website, Mr. Trump would provide six weeks of paid maternity leave to new moms, and he would pay for it by funds recovered in fighting unemployment compensation fraud.  Mr. Trump would not offer any paid leave to a father after the birth of a child, nor any paid time off (for either) for the adoption of a child.

If Mr. Trump carries through on his campaign promise and continues to endorse such a proposal, which has been pushed publicly by his daughter, Ivanka Trump, it faces a rocky road in a Republican-controlled Congress.  It’s hardly clear whether the Republican Congressional leadership would advance any of Mr. Trump’s priorities, but if the past is any indication, the GOP Congressional leadership has long been opposed to paid leave. There is little chance this position will change with Mr. Trump taking office.  Shout out to SHRM for providing a thorough analysis on this topic, too.

Who Will Become the New Secretary of the U.S. Department of Labor (aka the new “Head FMLA Nerd”)?

Speculation has been swirling that current EEOC Commissioner Victoria Lipnic, who holds one of the two Republican spots on the Commission, is the leading candidate to become Secretary of Labor. If her name rings a bell, Ms. Lipnic was the leading author of the changes to the (more employer-friendly) 2009 FMLA regulations.  From 2002 to 2009, she served as an assistant secretary of labor for employment standards, a role which allowed her to oversee the Wage and Hour Division, including FMLA enforcement.  Since 2010, she has served as an EEOC Commissioner, delicately advocating that the agency take a more moderate position on some of its most publicized priorities.

During her time as an EEOC Commissioner, she has become known for working collaboratively with her Democratic counterparts.  Notably, however, she criticized the EEOC’s decision to issue the 2015 Pregnancy Discrimination Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court was taking pregnancy and accommodations issues up at the time in Young v. UPS. She also has expressed concern for the gap in pay for men and women, but also opposed the EEOC’s push to try and fix it, again voting against a proposal that would require certain employers to disclose their pay data to the government.

Personally, I have found Commissioner Lipnic to be delightful and down-to-earth, not to mention realistic and thoughtful about the burdensome nature of government regulations on employers. Her appointment would be a benefit to the employer community.  As a related aside, I also can say “I knew her back when . . .” when she and I co-presented about pregnancy accommodations at a DMEC conference last year.

I received a ton of feedback on last week’s blog post, which discussed Yahoo’s new parental leave policy and its FMLA implications.  Much of the feedback related to Yahoo’s decision to provide 16 weeks of paid maternity leave to female employees and 8 weeks of paid paternity leave to male employees.  Some wondered whether such a policy is discriminatory on the basis of gender because different leave benefits would be offered to moms vs. dads.

In fact, this discussion carried over to a number of Linkedin groups: FMLA Nation (where the vote was split), FMLAEmployment Practices Risk Management and ABA Labor and Employment litigation (all are groups definitely worth joining on Linkedin).

I had the opportunity to speak with Colin O’Keefe of LXBN on this issue.  In the brief interview, which you can access here, I explain Yahoo’s paid parental leave policy and whether it discriminates on the basis of gender [short answer is “no,” but employers must tread carefully for reasons I explain to Colin].  I also share my thoughts on some related FMLA questions this situation raises. [As an aside, in the era of skype, the imperfect recording (my fault, not Colin’s) once again proves I have a face made for radio.]

I welcome your continued feedback on this parental leave issue so that we maximize the chances of crafting leave policies in a way to provide our employees a benefit without running afoul of the law.

marissa_mayer.jpgIt seems that what Yahoo CEO Marissa Mayer taketh, she giveth back.  Or something like that.  

As you will recall, Mayer made waves several months back when she banned all Yahoo employees from working from home, a rather controversial move seen by some as unfriendly to working parents. Now, in an interesting twist, Yahoo has announced a sweetened parental leave policy that will provide 16 weeks of paid maternity leave for moms and eight weeks of paid paternity leave for dads (not to mention $500 in spending money to help after baby comes home).    

As all things in life naturally find their way back to the glorious subject of FMLA [how does my poor family live with me, right!?!], Yahoo/Mayer’s evolving story lines lead me to ponder a number of FMLA family bonding leave issues.  Two in particular stand out simply because several of my clients have raised them recently: 1) Can an employer like Yahoo require medical certification supporting a mother’s (or father’s) request for bonding time after childbirth?; and 2) Before mom returns to work from maternity leave, can an employer require her to submit a fitness for duty certification? Let’s discuss…

Can an Employer Require Mom or Dad to Provide Medical Certification to Support Bonding Leave?

Keep in mind the purpose of medical certification: to determine whether the employee or a family member has a serious health condition that requires leave from work.  Thus, it’s not surprising that the U.S. Department of Labor very clearly warns employers in its FMLA guidance (pdf) that an “employer may not request a certification for leave to bond with a newborn child or a child placed for adoption or foster care.”

But can an employer require some sort of documentation from mom or dad confirming the need for bonding leave?  Yes, indeed!  In the Rights & Responsibilities Notice (pdf) provided to the employee at the time they request bonding leave, the employer can (and should): 1) check the Box in Part B indicating that “other information [is] needed;” and 2) inform the employee that documentation from the health care provider is necessary to confirm the pregnancy and due date of the child (to support the need for bonding leave).  In the case of adoption or foster care, similar documentation from the adoption or foster agency involved would suffice.

Can an Employer Require Mom to Submit Fitness for Duty Certification when Returning from Maternity Leave?

If mom simply is returning from bonding leave, the employer cannot require a fitness for duty certification as a condition of her return to work.  Again, there is no serious health condition at issue, so there is nothing to test through certification.  (Keep in mind, however: if mom also suffers from a serious health condition during bonding leave, the employer may require fitness for duty certification in this instance.)

There is one caveat to this general rule.  At times (and Marissa Mayer is a good example), a mom chooses to return to work before the entire 12 weeks of FMLA bonding time is exhausted. In this instance, can an employer obtain documentation that mom is fit to return to work?  To answer the question, I would adopt the generally recognized period of recovery from childbirth — six weeks for a normal childbirth and eight weeks for a Cesarean section.  Therefore, if mom wants to return before Week six or eight (depending on the circumstance), an employer arguably can require documentation from her physician confirming that she is able to perform the essential functions of her job.  

That said, I would not seek this documentation under the guise of an FMLA fitness for duty certification, since there still seems to be no support in the FMLA or its regulations for such a condition upon return to work.  (Thus, you may want to communicate such a requirement separate an apart from your FMLA communications with the employee.) 

However, if it’s after the recovery period, I am hard pressed to come up with any (legal) reasoning for insisting on fitness for duty documentation.  So, don’t do it!

Photo credit: Fortune Live Media/Flickr

macho.jpgDads need lovin’ too.  So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer’s “macho man” culture was a culprit in his ouster. 

As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law firm.  By all accounts, he had two years of solid performance evaluations and a $30,000 bonus in the year prior to his termination.  Then, he took four weeks of leave to care for his wife after the birth of their child and to bond with his newborn.  (The facts suggest he needed to care for his wife, who suffered from a variety of serious health conditions.)

When Ayanna returned to work, it wasn’t the same.  He claims the firm assigned him less work and ridiculed his care-taking ways.  At the time of his termination, the firm even shared that his “personal” issues constituted one of reasons for his ouster.  Ouch.

In refusing to dismiss Ayanna’s FMLA retaliation claim, the court clung to the statement above, suggesting that a “reasonable jury could find that the comment was directed at Ayanna’s recent need to take FMLA leave.”  Also noted as an inconsistency in the employer’s story: its claim that Ayanna’s low client billable hours also supported his termination.  The problem?  There was evidence that others missed the hours mark, too, and did not suffer the same fate as Ayanna. 

In Ayanna’s complaint, he claimed that the firm maintained a “macho culture” where time off to attend to fatherhood and being an “engaged” dad were seen as weak and undesirable.  However, in a nod to the employer, the court bounced this claim, finding that it was too vague to support a sex discrimination claim, which the court dismissed.  Ayanna v. Dechert LLC (pdf)

However, the FMLA retaliation claim now remains for a jury to consider.  The evidence precluding dismissal falls into two usual taboo categories that often trip up an employer when it comes to retaliation claims: insensitive comments that could be viewed as discriminatory and an inconsistent application of discipline to those outside the protected class. 

Insights for Employers

As always, there are lessons to be learned by employers.  The court’s decision reminds us of at least two best practices:

  1. As I have stated before, loose lips sinks ships.  If one of the reasons for his termination was indeed his “personal” issues — that is, taking care of his wife with a serious health condition and bonding with his child — it created a tremendous risk of liability for the employer.  Note to managers, supervisors, owners, HR professionals and anyone else in a positive to effect a personnel decision:  Stop saying stupid stuff!  I’ve detailed all too often lately stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made foolish remarks in conjunction with a termination decision.  Don’t do it, and train your managers and supervisors to do the same.  This case serves as yet another example of how easily a court will send a case to a jury as a result of one indiscreet comment.
  2. Apply disciplinary criteria consistently.  If you decide that a performance deficiency is particularly troublesome and requires termination, look around the room before lowering the boom.   Are other employees (especially those who have not recently returned from FMLA leave) guilty of the same problem?  If they were not subject to similar discipline or their situation cannot be distinguished in some meaningful way, employers again create significant risk of liability.  Courts don’t like it, and juries are even less forgiving.

woman_pregnant.jpgThe Family and Medical Leave Act and its regulations tell us that an employer must return an employee to the same or an equivalent position upon return from FMLA leave.  Not surprisingly, I often am asked by clients, “What is an ‘equivalent’ position?” 

On their face, the FMLA regulations seem to be a bit unforgiving for employers, offering what appears to be little wiggle room in returning the employee back to his/her original status. 

The regulations state that an “equivalent position” is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

My emphasis above.  But the regulations appear to offer little wiggle room, right?  A recent federal court case highlights the cautious approach employers should take when returning an employee to work after FMLA leave

The Facts

Sally Wanamaker was a computer teacher for the Westport Board of Education in Connecticut.  While on maternity leave, Sally gave birth to her daughter, but she had complications during labor that resulted in a spinal cord injury.  Her daughter also was born with a heart defect, necessitating a lengthy period of FMLA leave. 

She claimed that, at first, her school district told her it would employ a substitute teacher to cover her work during her leave of absence.  However, just a few weeks later, Sally alleged that the principal informed her that he had decided to replace her permanently.  Later, the school district gave her the option of returning to a full-time classroom teacher position instead of a computer teaching position.  When she declined the classroom position, the district terminated her employment.

The Ruling — New Position Might Not Be Equivalent

This case is at the beginning stages of litigation, but at least at the outset, the court refused to dismiss Sally’s FMLA interference and retaliation claims.  Notably, the court found that a reasonable juror could infer that the offer of a full-time classroom position was not equivalent to her former computer position, particularly in terms of skills and responsibilities.  In fact, the court suggested such a move actually might be considered a demotion.  Wanamaker v. Bd. of Education (pdf).

Insights for Employers

  1. Of course, employers often have to temporarily replace an employee while they are on FMLA leave.  However, avoid the temptation of replacing them permanently.  Permanently replacing the employee on FMLA leave requires you to return them to an equivalent position, which (as you see above) is fraught with danger.  (Permanently replacing an employee also causes ADA headaches, since employers are obligated to hold open an employee’s position while they are out on leave as a reasonable accommodation under the ADA.)   
  2. If you are returning an employee to an equivalent position, be prepared to show that you gave the decision considerable thought and document how you determine to be equivalent.  Prepare an analysis of how the new position requires the same level of duties, skill, responsibility, earning potential, authority and room for advancement within the company or organization. 
  3. I find that employers often get into trouble when they don’t fully consider how the duties of the new position will be viewed by the employee in terms of prestige, authority and especially earning potential.  One common example is a sales position.  Here, an employer can’t take the approach that all of its sales managers are the same.  Selling a different trinket, or assigning them to different accounts that arguably provide for less earning potential or cause them to work with “lower profile” clients in your industry may very well be enough — in light of the fairly stringent regulations above — to create genuine risk of a viable FMLA interference or retaliation claim.  I am not suggesting here that the employee gets to choose the position to which he/she returns, but employers simply need to be mindful of the impact of the decision and give it some thought beforehand.
  4. Another sobering reminder: Be mindful of what you put into email and about the comments you make about an employee’s leave of absence.  In Sally’s case above, her principal allegedly: 1) told the union president that Sally’s daughter’s health condition was one of the reasons she was replaced permanently; and 2) sent an email to all staff that suggested that short-term absences were not legitimate and may dealt with more harshly.  Hello…FMLA intermittent leave!?!  Nothing is more short-term than intermittent leave.  As we have pointed out in other posts here and here, emails and thoughtless comments almost always come back to haunt employers.  (I say this while fully acknowledging that the comments above come from a union president, which of course will be subject to discovery and cross exam.)  In any event, the best practice is clear — stop saying things that will make you cringe if and when they are uttered in front of a jury!

woman_pregnant_child_stomach_brother_sister.jpgHere’s a question from the client inquiry line this past week, and it pops up often enough that I figured I would share:

Q:  An employee on maternity leave contacted us two months into leave that she will not be returning to work at the end of FMLA leave (which now is one month away).  Is her employment terminated immediately?  And can we recover any health care premiums we paid during her leave?

A:  The question above raises two issues: 1) What are the restoration rights of an employee who has informed you they will not return after FMLA leave? and 2) Can the employer recover its share of health care premiums paid during FMLA leave?

Restoration Rights

As we know, employees generally are entitled to be restored to the same or equivalent position upon return from leave under the Family and Medical Leave Act.  However, in this fact scenario, one important exception applies.  Under the regulations:

If an employee gives unequivocal notice of intent not to return to work, the employer’s obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.  (My emphasis, not the DOL’s.)

When do the employer’s obligations to maintain health benefits and restore the employee cease?  Immediately.  According to the regulations, an employee’s FMLA rights effectively end where they have provided uneqivocal notice (defined by Merriam-Webster as “leaving no doubt”) that they will not return.

Recover Health Care Premiums

Under the regulations, the employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work, unless the reason for not returning to work is due to, among other things, “circumstances beyond the employee’s control.  The Department of Labor makes clear that this phrase is “necessarily broad” and includes a situation where the employee chooses to stay home with a newborn child who has a serious health condition.  However, the DOL acknowledges that this caveat clearly does not cover a situation where the employee chooses to stay home with a “well, newborn child.”

Beware of Treating Employees Differently

Although employers technically have the right to recover health care premiums from a mom who voluntarily decides not to return to work, should they recover them?  On one hand, the decision may be based on company culture and business priorities.  On the other hand, might the recovery of premiums in these situations open the employer up to a claim of gender discrimination?  Do you do this for all employees who do not return after FMLA expires?  Recovering premiums only from the mom who chooses not to return might be inadvertent — and bad — evidence of gender discrimination.  A theory perhaps, but what do you think?  Post a comment below.   

fatherhood.jpgAs 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.