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The Labor & Employment Report

Accommodating a Teacher’s Fear of Children?

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

I love these odd cases – like the one-armed man who wanted to be an “unarmed” security guard, about which I blogged previously. Here’s another one that tickled my funny bone – the teacher with pedophobia, which is a debilitating fear of children! (Let’s just absorb the irony of that for a moment, shall we?)

OK, to be fair, the teacher feared younger children, but was fine with teaching older children – which was the issue in the case of Waltherr-Willard v. Mariemont City Schools. The teacher, whose diagnosis of pedophobia had previously been confirmed for school officials by a doctor, taught all levels of French and introductory Spanish to high school students. The high school decided to move all of its French courses online, which meant that a French teacher was no longer needed. With the teacher’s (self-proclaimed “enthusiastic”) agreement, she was transferred to the middle school for the next school year.

After six months, the teacher asked to be transferred back to the high school, stating that her talents were being “underutilized” and that another year at the middle school would be detrimental to her health. (As the parent of two crazy teenagers, I agree that prolonged interaction with this age group can be very detrimental to anyone’s mental health!!) The school district superintendent told her that there were no openings at the high school because there was already a Spanish teacher there. The teacher retired, and then sued the school district for failing to accommodate her disability of pedophobia, among other things.

The district court granted summary judgment for the school district, finding that her claims were without merit. The U.S. Court of Appeals for the 6th Circuit agreed. With regard to the failure to accommodate claim, the Court noted that the Americans with Disabilities Act requires an employer to accommodate an employee’s disability, but it does not require “unreasonable accommodations.” Requiring the employer to create a new job or to displace a current incumbent in a job is not reasonable as a matter of law, which I am sure you will be happy to know!



A Seussian Recitation of Yates v. United States

Posted in Uncategorized

As we said yesterday, this case is outside our labor and employment law area of practice, but I was really so entertained by it that I couldn’t let it go just yet.  So, as inspired by Justice Elena Kagan and with apologies to Dr. Seuss:

The fish on the ship were just too small,

So the federal agent ordered they all

Be kept until the ship reached port.

But the captain threw them overboard.

This put the feds into a state –

“No evidence! We can’t investigate!”

They said, “This is a violation of SOX!”*

And they put the captain in a box

For thirty days. “Not fair!” he cried.

An appeal to the 11th Circuit he tried,

But his plea was rejected out of hand.

He took this to the top court in the land.

The Supreme Court tossed his conviction

By looking at a definition:

A fish is not a “tangible object”

That SOX was intended to protect –

Instead, it’s records and documents.

But the dissent cited as precedent

One Fish Two Fish Red Fish Blue Fish!

A fish not an object? Simply foolish.


*The Sarbanes-Oxley Act

OK, I’m finished.  Next time, we’ll be back to labor and employment matters – I promise!

The Fisherman and the Sarbanes-Oxley Act

Posted in Laws & Regulations, Litigation

Red GrouperThis case, Yates v. United States, is outside our usual employment law zip code, but it’s such a wacky one, it lured us in. It involves a fisherman who failed to preserve, as evidence, undersized fish that he had caught in violation of federal law. A federal agent found the undersized fish during an offshore inspection of a commercial fishing vessel in the Gulf of Mexico. The agent instructed the ship’s captain to keep the undersized fish separate from the rest of the catch until the ship returned to port.  After the agent left, however, the captain told his crew to pitch the fish overboard.

Casting a wide net, the government charged the captain with violating a provision of the Sarbanes-Oxley Act (SOX) dealing with the destruction of evidence. (Perhaps you remember that SOX was enacted by Congress following the Enron scandal, which made waves in the financial industry by involving massive accounting fraud and the destruction of documents). Under SOX , a person can be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. The captain was found guilty of destroying a “tangible object” – i.e. the fish.  He was found guilty and sentenced to 30 days. The U.S. Court of Appeals for the 11th Circuit affirmed the conviction, and the captain appealed to the U.S. Supreme Court.

The Supreme Court found that the charges against the captain were fishy. It held that SOX was meant to address destroyed records and information, not red grouper!  In the context of the statute, the destruction of evidence provision immediately follows corporate fraud and financial audit provisions. The term “tangible object” comes at the end of a list of terms that begins with “any record [or] document.” Given the context and placement, a “tangible object” under SOX “is one used to record or preserve information” and does not include the entire universe of objects. As Justice Alito (somewhat whimsically) noted in his concurring opinion,

[T]he term “tangible object” should refer to something similar to records or documents. A fish does not spring to mind – nor does an antelope, a colonial farmhouse, a hydrofoil, or an oil derrick. All are objects that are “tangible.” But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a “record” or “document,” said “crocodile”?

Now, the Supreme Court wasn’t united in this opinion. Justice Kagan wrote a dissenting opinion, which was joined by Justices Scalia, Kennedy and Thomas. She looked to the ordinary meaning of “tangible object” as “a discrete thing that possesses physical form.” She then went on (even more whimsically) to state:

A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Well, as for this case, I guess it’s the one that got away (from the feds).

Be Thoughtful About FMLA Certifications

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

Under the Family and Medical Leave Act (FMLA), an employer can (and should) require a certification from a health care provider to support an employee’s or the family member’s need for leave because of a serious health condition. This certification is the basis for determining whether the employee has a serious health condition requiring leave, which is then covered, and therefore protected, by the FMLA. It sets forth the parameters of what leave is medically required. Employers are, of course, entitled to rely on the certification – but not to the exclusion of all other information, as one employer learned to its great sorrow.

(Quick refresher – a “serious health condition” under the FMLA  includes incapacity of more than three consecutive days that also involves a visit to a health care provider and a supervised regimen of continuing treatment.  It also includes chronic conditions, which can be episodic, requiring at least two doctor’s visits a year for treatment. These episodes do not have to last for more than three days.)

In Smith v. AS America, Inc., a plant employee injured his back and was absent from work for three days. He submitted a request for FMLA leave, which included an FMLA certification form. The form  stated the employee had a back condition that would require treatment visits at least twice a year. The form further stated there could be episodic flare-ups of the condition every three months, lasting 3-5 days per episode, during which time the employee would not be able to work. The employee’s three-day absence was recorded as FMLA leave.

The following month, on February 5, the employee again strained his back. He reported to work on February 6, but had to leave because of his back pain. He called out on February 7 and 8, each time stating that his absence should be covered by his prior FMLA certification. The employee visited a health care provider on February 7, and the provider wrote a note stating that he had been seen on February 7 and excusing him from work on February 8. When the employee went to the plant on February 8 to submit his note, however, he was told that he was being terminated under the attendance policy for leaving early on February 6, and calling out on February 7 and 8. He was also given documents denying his January application for FMLA leave (even though the leave had already been recorded as FMLA!  What ?!!)  On February 11, although he had already been terminated, the employee submitted another FMLA request with a certification specifying that his back condition required continuing treatment, that it would cause episodic flare-ups, and that the current period of incapacity was February 7-9.

In the ensuing lawsuit, the employee contended that his February absence qualified as a serious health condition both because he had an incapacity lasting more than three days with treatment from a health care provider and because it was a chronic condition. With regard to the first argument, the employer argued that the certification stated that the incapacity lasted for only three days – February 7-9.  Therefore, it did not meet the relevant definition of a serious health condition, and the employer was entitled to deny FMLA coverage. The court, however, noted that the employer could not rely on the certification “to the exclusion of all other evidence it had at the time.” The court noted that the employer knew the employee had injured his back on February 5 and could not work on February 6. The employee, moreover, in calling out, had referenced his January FMLA application. Based on this information, the court found that the employer “should have reasonably concluded” that the period of incapacity lasted from February 5 at least through February 9 – more than 3 days.

Furthermore, the court noted, the form does not require the health care provider to provide exact dates for the incapacity – it seeks the “approximate date the condition commenced” and the “probable duration of the condition,” and further requests the provider to “estimate the beginning and ending dates for the period of incapacity.” In addition, the court noted that the employee was fired even before submitting the certification, although his similar request the prior month for FMLA leave for a back injury had been granted. The court thus found “disingenous” (at the very least!) the employer’s claim that it relied on the February certification to deny FMLA leave.

Moreover, the court noted that the employee was entitled to FMLA leave based on a chronic condition, as indicated in both FMLA certifications. The court rejected the employer’s argument that the condition cannot be considered chronic until it has lasted for a number of years. As the court logically noted, chronic conditions “undoubtedly have a starting point.” As long as the provider predicts that the condition will recur over an extended period of time, the condition could qualify as a FMLA-covered chronic condition.

So, bottom line, employers should be reasonable when they rely on those health care provider certifications, and take into account other information they may have. If there is some discrepancy between the information and the certification, because the certification is vague, ambiguous or unclear, the employer could deem the certification insufficient and request, in writing, that the employee submit a sufficient certification. Assuming that the certification is technically sufficient, but is hard to read or the meaning is unclear, the employer could seek clarification of the certification, as permitted by the FMLA regulations. Furthermore, if the employer doubts the validity of the certification based on the other information available to it, the employer can require a second (and possibly a third) opinion. What the employer should not do is simply reject the certification!

Can You E-mail FMLA Notices?

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

So I previously wrote about the problem with proving that an employee received a notice required by the Family and Medical Leave Act by regular mail, where there was no delivery confirmation. In a variation on that theme, a court recently held that proving an employee received an emailed FMLA notice could be equally problematic.

In Gardner v. Detroit Entertainment, LLC, the plaintiff had been approved for intermittent FMLA leave. However, the number of times that she called out on FMLA leave in the month of September (9x) exceeded the amount estimated by her doctor in the Certification of Medical Provider (4x). The employer and its third-party FMLA administrator also noticed that the plaintiff had called out every Sunday that month. (Definitely seems suspicious…)

Under the FMLA, recertification of an employee’s need for leave is permitted for several reasons, including where circumstances described in the previous certification have changed. The Department of Labor’s regulations implementing FMLA provide specific examples of such changed circumstances at 29 C.F.R. § 308(c)(2):

For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification… Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences might constitute a significant change in cirucmstances sufficient for an employer to request a recertification…

In this particular case, there was both a change in the frequency of the absences and a question about the timing of her absences. The FMLA administrator emailed a request for recertification to the employee. When the employee did not respond to the request for recertification, the absences that she subsequently incurred were deemed to be unprotected by FMLA. They were counted against her under the attendance policy, and she was fired for her attendance violations. She then sued her employer, arguing that she had specifically requested that FMLA correspondence be provided by postal mail, and that she never opened – and therefore never effectively received – the email. In other words, the employer did not provide her with proper notice of her need to recertify.

FMLA regulation 29 C.F.R. § 305(a) states that, after the initial request for certification, “an employer’s oral request to an employee to furnish any subsequent certifications is sufficient.” The employer argued that, given the sufficiency of an oral notice, an emailed notice should be more than adequate.

The court disagreed with the employer, however. It stated, “oral notice, a person-to-person communication, guarantees actual notice to the employee.” (Although, it’s entirely possible that an employee could deny the oral communication ever took place!) In contrast, no actual notice can be demonstrated by “the transmitting of an email, in the absence of any proof that the email had been opened and actually received…” So it will be up to a jury to decide if the plaintiff really received the email or not.

What should the employer do? Well, it seems that this decision, as well as the one I previously discussed suggest that all required FMLA notices and requests should be delivered by certified mail or with delivery confirmation. It may seem excessively cautious, but could save you in litigation!


A New Boss Is Not A Reasonable Accommodation

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

The bad boss is a cliché. There have been many movies about evil supervisors- for example, “Horrible Bosses” and (because one wasn’t enough) “Horrible Bosses 2.” There are TV shows featuring frustrating or bad bosses – like Michael Scott in “The Office,” or Mr. Burns from “The Simpsons.” There’s even a website where you can rate your boss and check out the ratings of others, so you can avoid them – eBossWatch.com.  (I didn’t check to see if I’m in there…)

Sadly, many of us have had personal experience with a boss who drives us crazy. So to speak. But what about the boss who literally drives an employee crazy? Is the employee now protected by the Americans with Disabilities Act? And what accommodation should be provided? A federal district court recently addressed these questions in the case of Alsup v. U.S. Bancorp.

According to the plaintiff, who had a history of mental health problems, her new boss treated her in “a negative and devaluing manner,” which caused her disability to resurface. She was subsequently diagnosed with Bipolar II depression. After the plaintiff received a write-up from her boss, she had to schedule an urgent appointment with her psychiatrist, who put her on a medical leave and recommended an accommodation of “a switch in supervisors.” A company HR representative emailed and spoke with the plaintiff on multiple occasions to request additional information about her boss’ conduct and what other accommodations might be possible to enable her to continue working for her boss. The plaintiff insisted the transfer to another supervisor was the only solution. The company refused and the plaintiff never returned to work. She then sued the company under California’s anti-discrimination law for disability discrimination and failure to accommodate her disability.

Under the ADA (which the courts look to in interpreting the disability provisions of California’s law), in order to bring a claim of disability discrimination, the plaintiff must show (among other things) that she can perform the essential functions of her job, with or without a reasonable accommodation.  In this case, the court found that,

“Because the plaintiff’s claimed disability stems from her inability to get along with her supervisor, and the only effect it had on her job was to render her unable to work with that supervisor, she has not and cannot allege she could perform the duties of her job with or without reasonable accommodations.”

The court also cited a number of other cases, all standing for the proposition that “an inability to get along with one’s supervisor does not give rise to a disability” protected by the ADA. The court concluded that the plaintiff failed to state a claim for disability discrimination.

As for the plaintiff’s failure to accommodate claim (assuming she had a disability covered by the ADA), the court, again citing numerous other cases, found that a transfer to another supervisor is an unreasonable accommodation as a matter of law. The court also pointed to the Equal Employment Opportunity Commission’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, in which the EEOC expressly states: “[a]n employer does not have to provide an employee with a new supervisor as a reasonable accommodation.”

Although the court ended there by throwing out the plaintiff’s claims, I want to point out that the EEOC’s Guidance does also say that, “although an employer is not required to change supervisors, the ADA may require that supervisory methods be altered as a form of reasonable accommodation.Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.” So employers should not simply dismiss an employee’s request to transfer to another supervisor and consider the matter finished, particularly if the employee is claiming that the supervisor’s conduct is causing mental and physical health problems.  In any case, the wise employer will still look into the supervisor’s conduct to see if any adjustments should be made to the way the supervisor interacts with the employee (and possibly others). After all, while a bad manager may not necessarily be illegal, he or she can still cause you problems from an efficiency or morale standpoint.


Thoughts on Shielding Laws from a Management Attorney

Posted in Background Checks, Laws & Regulations, Legislative Developments, Workplace Trends

As one of the co-chairs for the Employment Issues Task Force of the Maryland Chamber of Commerce, I see the employment legislation that is proposed during each Maryland General Assembly session. Some of it makes sense (although, frankly, not often), and some of it makes me scream (literally – just ask my partners). For the past  couple of years, an issue that has come up and received serious consideration from our legislators is shielding – and this is one that falls into the latter category for me.

Shielding is part of the movement to enable those with criminal histories to move back into the workplace. One aspect of this movement, which is a hot topic right now at the state and local level, is ban-the-box laws. Those laws prevent an employer from asking about an applicant’s criminal history on an employment application (i.e. by checking the “box” indicating a criminal record) and through part or all of the hiring process. The most restrictive “ban-the-box” laws only permit an employer to review the criminal record of an applicant after making a conditional offer of employment, while less strict laws may permit it after or during the interview. But at least the employer can see the criminal record at some point.

This is in contrast to shielding laws, which protect certain (usually misdemeanor) convictions from being disclosed to an employer – ever. Unfortunately, the crimes being shielded are often the very types of crimes that may be directly relevant to an employer’s decision to hire or promote an individual.  The fact that they are misdemeanors, and not felonies, doesn’t make them any less relevant or concerning to employers – they are still a violation of the law for which the individual has been convicted.

Shielding legislation typically includes crimes of conduct, like disorderly conduct and disturbing the peace, as well as destruction of property, which could suggest a propensity to violence. Given all of the instances of workplace violence that saturate the media, I think most employers would agree that this is important information to know about an applicant. This type of legislation often also includes crimes of honesty, like theft. Again, wouldn’t this be of importance in hiring an employee that, for example, has access to corporate accounts or handles customer transactions? Driving offenses – certainly those are important if an employer is hiring for a position with driving responsibilities. And shouldn’t an employer who has instituted a drug-free workplace know if the applicant has drug offenses on his or her record? These are all crimes that would have been shielded under the shielding law that was proposed in last year’s Maryland General Assembly session, and generally what we expect to see in this year’s legislation (which has not yet been released).

I understand and fully support the effort to give those with criminal records a chance for employment. But not by pretending that those records don’t exist. That is not fair to employers, who should be allowed to make the decision about who they want to hire based on full and complete information. In addition, those employers could be held liable to others for misconduct by their employee, which is particularly concerning if the conduct is related to the type of crime for which the employee had been convicted – crimes about which the employer was not permitted to know.

The EEOC has already issued guidance on how criminal convictions should be used in employment decisions – and it is an individualized, case-by-case assessment that takes into account the following factors:

1.  The nature and gravity of the offense or offenses;

2.  The time that has passed since the conviction and/or completion of the sentence; and

3.  The nature of the job held or sought

(We discussed the EEOC’s guidance more fully in a prior posting, “EEOC’s Updated Guidance on Arrests and Convictions.”) Applying these factors is logical and reasonable, and most importantly, fair to both individuals and employers.

Thoughts on Paid Sick Leave from a Management Lawyer

Posted in Employee Benefits, HR Compliance, Laws & Regulations, Legislative Developments, Workplace Trends

So my brilliant partner, Liz Torphy-Donzella (who also serves as General Counsel for the Maryland Chamber of Commerce), was a guest on WYPR’s “Midday with Dan Rodricks” show yesterday.  She was invited to provide the management perspective on paid sick leave laws, while Jason Perkins-Cohen of the Job Opportunities Task Force, a Baltimore-area pro-worker advocacy group, presented the arguments in favor of such legislation.  You can listen to a recording of the show here.

As management lawyers, we do not question the moral underpinnings of paid sick leave laws.  (We’re not that heartless!)  Of course, low-wage employees should not be forced to choose between going to work sick (or sending a sick child to school) and staying at home without pay.  Of course, there are societal benefits to keeping sick employees from spreading infection in the workplace – to co-workers and customers.  Of course, employers who provide such benefits build employee loyalty.  And most of our clients who can afford to give sick leave do so – for the very reasons noted here.

As Liz pointed out during the show, what we object to is making paid sick leave a legal mandate, with all of the consequent results.  It is clear that small employers suffer the most immediate impact as a result of paid sick leave.  Although the economy has improved, many smaller businesses are still struggling and will continue to struggle to make a profit, and any added expenses – even arguably minor ones – can make the difference between making it and breaking it.

Now, I know that proponents of sick pay laws argue that paid sick leave actually reduces costs to employers.  They say, for example, other employees won’t get sick if sick employees stay home, which increases productivity.  They also say that employee turnover will be less, which reduces training costs for new employees.  But the federal Bureau of Labor Statistics has calculated the cost of paid sick leave at $.34 per hour, per employee.  This works out to $707 per year for each full-time employee!  Even for a small employer, this works out to thousands of dollars per year in increased labor costs.

Employers who already provide sick leave, including most larger ones, may not object to proposed sick leave laws – after all, they’re already giving this benefit.  However, they should still be aware that there are negative consequences to laws that mandate sick leave, even for them.  These laws are very specific in the amount of sick leave that must be accrued, how and when it can be used, carryover requirements, and recordkeeping and notice provisions.  They protect the use of sick leave from disciplinary consequences, meaning that an employer cannot implement a no-fault attendance policy that counts any absence – including time off when sick – as an occurrence (of course, not including legally protected leave like FMLA and ADA – and we all know how challenging that can be to manage!).  It is certain that most, if not all, of these employers’ existing sick leave policies do not comply with one or more of these requirements, which will require possibly significant revisions to those policies.  More importantly, these employers will lose the flexibility to develop sick leave policies that best fit their organizations, because the law imposes a one-size-fits-all sick leave policy.  In addition, multi-state employers may end up with difference sick leave policies in different states, which will be an administrative nightmare to manage.

And back to the small employer – many of them do not have a Human Resources staff to manage the process and paperwork associated with sick leave, particularly to ensure compliance with the very technical requirements imposed by these laws.  Moreover, the additional recordkeeping requirements are a new burden that the small employer may not be equipped to assume.

For all employers, these laws also provide a new basis for employees to sue.  And in this litigation-happy society, you can be sure that they will.

So, in light of these costs, what will happen?  We can look to San Franciso’s example (they passed a sick leave law in 2006).  According to a study done by the Institute for Women’s Policy Research, 1/3 of employers increased work demands, reduced hours, or reduced employee compensation as a result of the law.  Thus, this law hurt many of the very employees it was meant to help.  14% of employers reported a negative impact on profitability.  One result of this is that many San Francisco restaurants are adding a 2-4% surcharge to checks to cover paid sick and health benefits, and a survey by San Francisco Gate found that 2/3 of respondents deducted that amount from the server’s tip!

Bottom line – forcing employers to comply with expensive and extensive mandates is damaging to business, and can end up hurting those workers whom the mandates intend to help.

Employers Can Designate Leave As FMLA

Posted in Employee Leave (FMLA and ADA), HR Compliance, Laws & Regulations, Litigation

So this is a follow up to my post, Employee Held to Choice Not to Invoke FMLA.  A bright reader pointed out that the U.S. Court of Appeals for the 9th Circuit made a statement in its decision, which I quoted, that was quite confusing when applied in a broader context.  So let’s discuss:

In the underlying case, Escriba v. Foster Poultry Farms, Inc., the employee requested vacation leave to take care of her father, and was informed that FMLA might apply.  She declined to apply for FMLA, took her vacation leave and then some (without approval) and failed to return to work when she was expected to do so.  She was terminated for violating the no-call, no-show policy.  She then sued, arguing that the Company should have designated the leave as protected FMLA leave, for which she could not be terminated. The 9th Circuit held that the employee could be held to her choice not to invoke the FMLA to cover leave.  In its written decision, as I noted in the blog, the 9th Circuit stated that an employer could actually be held liable “for forcing FMLA leave on an unwilling employee.”

As the bright reader wondered, does this statement mean that an employee who is out on workers’ compensation can choose not to use FMLA during that WC leave?  My immediate reaction was, “Of course not – that’s just ridiculous!”, but it’s true that the statement suggests that the employee could do so.  To the extent it does, I think the 9th Circuit is not really correct (I could say “wrong,” but “not really correct” seems less, well, confrontational – and the 9th Circuit is a federal court while I am simply a lowly attorney.  So let me be somewhat tactful…).  There are several reasons why I think the 9th Circuit is less than right.

First, the FMLA regulations at 825.702(d)(2) do state,

“An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA.  The workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).”

So, the regulations themselves clearly contemplate that FMLA and WC can run at the same time, and they do not require that the employee ask for the FMLA leave in conjunction with WC leave.  It’s up to the employer to provide notice and to designate the WC leave as FMLA leave.

Next, as employers know, a workers’ comp injury or illness frequently qualifies as a disability under the Americans with Disabilities Act.  The FMLA regulations at 825.702(c)(2) also contemplate that FMLA leave will run concurrently with any leave provided as a reasonable accommodation under the ADA.  The regulations provide a specific example of this:

“A qualified individual with a disability who is also an “eligible employee” entitled to FMLA leave requests 10 weeks of medical leave as a reasonable accommodation, which the employer grants because it is not an undue hardship.  The employer advises the employee that the 10 weeks of leave is also being designated as FMLA leave and will count towards the employee’s FMLA leave entitlement.”

Thus, as with WC leave, the regulations give the authority and responsibility of designating ADA leave as FMLA leave to the employer.

Moreover, I think all employers and courts would agree, it would not be any kind of reasonable accommodation for an employee to decline FMLA coverage while taking ADA-covered leave, and then invoke another 12 weeks of FMLA leave after the ADA leave is finished.  And even then, if the second FMLA-eligible event is also an ADA-covered disability, the employee could again decline the FMLA leave and take ADA leave.  When would FMLA ever apply?  That’s simply nonsensical, and inconsistent with the purpose of these laws.

Finally, as my colleague Jeff Nowak (both of our firms are members of Worklaw, a network of firms that specialize in employment and labor law) points out in his excellent blog post, “Can an Employee Decline FMLA Leave Even Though the Absence Is Covered by the Act?“, on his excellent, award-winning blog, FMLAInsights.com:

“At 29 C.F.R. 825.301(a), the DOL tells us, ‘Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].’ There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.”

So, I agree with Jeff, who says that you should ignore the 9th Circuit and designate the leave as FMLA if it qualifies for coverage.

Employee’s “Husband” Didn’t Sexually Harass Her

Posted in Employment Discrimination, Litigation, Sexual Harassment

This one raised my eyebrows – definitely not your typical sexual harassment case.

In Waltz v. Dunning, the plaintiff began working for a company, BHC, in 2001. She reported directly to the CEO.  They began a sexual relationship in 2003, which the plaintiff claimed was initially non-consensual (she said she only had sex with the CEO to avoid his becoming upset or physically abusive). However, she and the CEO began referring to each other as “husband and wife” (even though he was already married, the dog!), and had two children together, in 2005 and 2007. In 2008, the plaintiff resigned from BHC to work at another company, Synergy, which was also started by the CEO and had close ties to BHC. By 2009, the plaintiff was wearing a wedding ring that had been given to her by the CEO. They spent holidays together, went on family vacations, and took videos to commemorate special occasions. He joined in birthday and holiday celebrations with the plaintiff’s parents. He helped pay for the medical expenses of the plaintiff’s mother, who had cancer. He also bought the plaintiff and their children a home. The plaintiff sent him affectionate texts and emails, as well as cards, and bought him expensive gifts including a $7,000 watch (garnished with diamonds!).

In 2012, the plaintiff ended the relationship and quit her job at Synergy. The CEO filed for custody rights for their two children, and the plaintiff then sued him and his companies for sexual harassment and other state law tort claims, including invasion of privacy, and assault and battery.

The court, however, threw out her claims. In order for the plaintiff’s claims to be valid, the CEO’s conduct had to be “unwelcome.” As the court noted, although the conduct might have been unwelcome at the outset and for some time thereafter, the relationship clearly became consensual, when taking into consideration all of the circumstances described above and the fact that it lasted for ten years! The court also particularly marked the fact that the plaintiff filed suit only after the CEO sought custody of their children. (That was definitely some suspicious timing).

Sexual harassment? Clearly that’s hard to prove when the alleged harasser is the same person you called your “husband” for many years!