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The Labor & Employment Report

Do You Have To Talk To Your Employee’s Lawyer?

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

You know how it goes.  You have an employee with issues – performance, health, whatever.  The relationship with the employee starts deteriorating.  Now the employee wants his lawyer to be involved in any further discussions.  What do you do?

As a general matter, an employee doesn’t have a right to bring his attorney to work.  An employer can meet with, talk to, interview, and discipline an employee without permitting the employee’s attorney to participate.  Even during a formal internal grievance process, there’s no requirement that the employee be allowed to use an attorney (unless your company’s policy says so – in which case, follow your policy).

One court, however, found an employer’s failure to respond to an employee’s attorney to be an issue in the course of Family and Medical Leave Act discussions.  In Bralo v. Spirit Airlines, Inc., an employee on FMLA leave, Serge Bralo, informed Spirit he was ready to return to work with certain restrictions.  The leave administrator told him that he could only return if he were “100 percent.”  She eventually sent him a letter (dated June 14 but mailed on June 18), requesting a fitness for duty certification and other medical information from his doctor by June 22.  Bralo received the letter on June 21.  At that point, Bralo’s lawyer (whom he had hired because he hadn’t heard anything from Spirit for more than 30 days after being told he couldn’t return with restrictions) wrote to the leave administrator requesting an extension of time to respond to the request.  The leave administrator did not reply to the attorney; instead, on June 25, she left a voice mail for Bralo, stating that he had until June 29 to respond to the request for medical information.  On June 28, the attorney sent another letter, requesting that she be contacted to discuss her client’s restrictions.  Again, the leave administrator did not respond to the attorney, but called Bralo on June 28 and 29, reiterating the deadline.  Because no medical information was provided, Bralo was terminated on July 3.

Bralo then sued Spirit, claiming interference with his FMLA rights, among other things.  Spirit asked the court to dismiss his claims, stating as to the FMLA interference claim that Bralo had failed to provide the requested medical information.  The court found, however, that “there is also evidence that this failure arose because Spirit – who had previously failed to communicate with Bralo upon receiving notification that he was ready to return to work – failed to communicate with Bralo’s counsel in her attempt to resolve the issue.”  In other words, even though Spirit was communicating directly with the employee during this time, the court thought it should have also been communicating with the employee’s attorney.

What this means for employers – in the normal course of performance managing an employee, there is no need to allow the employee to inject his attorney into the situation.  But in more complicated situations, communications through or with the attorney might be necessary.  At a minimum, rather than simply ignoring the attorney, it might be wise to respond to the attorney with something like, “We have received your communication, but we will be discussing this directly with our employee.”  At least, that makes it clear what the employer intends the lines of communications to be.

FMLA Does Not Apply to Care for Unborn Child

Posted in Employee Leave (FMLA and ADA)

In an interesting twist on the right to care for family members under the Family and Medical Leave Act, a court has held that the FMLA does not apply to unborn children.

In the case of Lukudu v. JBS USA, LLC, an employee was on final written warning for attendance violations.  He then called out to go to the hospital because he thought his pregnant domestic partner was in labor.  In fact, the baby was not born for another week.  The employee was terminated based on his further attendance violation.  He sued his employer for violating his FMLA right to take leave in order to care for his child.  (He also argued that he should have been given leave to care for his domestic partner, whom he called his “wife,” but since they were not actually married, she could not be considered a “spouse” under the FMLA).

Observing that the baby was born a week after the employee’s termination, the U.S. District Court for the Western District of Kentucky found that the employee could not take FMLA leave to care for an unborn child.  Looking to the actual language of the FMLA, the court stated, “it is impossible for [the employee] to be entitled to FMLA leave ‘[b]ecause of the birth of a son … and in order to care for such son’ when that son had not yet been born.”

So, life may (or may not) begin at conception, but FMLA doesn’t apply until the child is born.

Employee Held To Choice Not To Invoke FMLA

Posted in Employee Leave (FMLA and ADA)

Sometimes, you can actually take an employee at her word.  Even if she later claims she didn’t mean it.  This happened in the case of Escriba v. Foster Poultry Farms, Inc., where the employee requested two weeks off to care for her father in Guatemala – a reason that would have been covered under the Family and Medical Leave Act, except that the employee said that she didn’t want FMLA leave.

The employee asked only for vacation leave.  The employee’s supervisor asked if she needed more time off, but the employee said that she didn’t.  (Interestingly, the employee’s round trip plane ticket, which she purchased before she asked for the time off, left on November 23 and returned on December 27 – more than a month.  Pretty clearly, this didn’t match up with her two week request.)  The employee was given the time off, but it was not designated as protected FMLA leave.  She was told that if she needed more time, she would have to contact Human Resources.

At the end of the two weeks, the employee did not return to work.  She also failed to call in, and did not request any extension of her leave.  And even though her husband also worked at the company, and she regularly spoke with him, she did not ask him to speak to the company on her behalf.  Sixteen days after the end of her leave, she finally contacted her union rep, who told her that she would likely be terminated under the company’s three-day no-call no-show rule.  And she was.

The employee sued the company, claiming that the company interfered with her FMLA rights.  Specifically, she argued that the company was required to designate her leave as FMLA, even though she had expressly declined to use FMLA.  (Whaaaat?  And by the way, this same employee had used FMLA on fifteen prior occasions, so she certainly knew how to request it!)

Fortunately, the jury didn’t buy it, and neither did the U.S. Court of Appeals for the 9th Circuit.  The Court found that an employee can decline to take FMLA leave and, in fact, an employer could actually be held liable “for forcing FMLA leave on an unwilling employee.”

So the good news for employers is that they don’t have to second-guess an employee’s stated decision.  If the employee says he doesn’t want FMLA, you don’t have to give him FMLA.


Thoughts on Unionizing College Athletes

Posted in Labor Law & NLRB, Unions

Even with the hoopla surrounding March Madness there has been equally compelling news regarding college football despite the fact that that sport is not even in season.  The National Labor Relations Board’s Chicago office just handed down a decision that Northwestern football players are employees and have the right to organize.  Nothing will happen immediately because the case is being appealed. Below are my thoughts on this fascinating development:

  •  The decision is a groundbreaking one and could lead to unionization amongst college athletes and major changes for the NCAA.
  •  The decision was largely based on the amount of control that the football program exercised over the students – i.e., the rigorous practice schedule, mandatory requirements, etc.   Basically, the schools are so demanding in what they require of the players that they are effectively acting as employers.
  •  The decision was also based on the fact that the NCAA is a major business and that the players are generating profits for the university like employees generate profits for employers.
  •  The fact that students get full scholarships was enough for the NLRB to conclude that the students are “paid” like an employee.
  •  The next step is an appeal to the NLRB in Washington, DC
  • The NLRB in DC is likely to uphold the decision because of its political composition (a majority are Obama appointees and pro-labor union)
  • If the decision is upheld, the NLRB will conduct a secret ballot election.
  •  It’s also possible that the NLRB will order the election to go forward even during the appeal and wait to count the ballots until after the appeal is done.
  • If a majority of players vote in favor of the Union, the University would be required to engage in collective bargaining negotiations over terms and conditions of employment (which in this case means playing football for the school).
  •  At that point the School can refuse to negotiate, and the case will go the U.S. Court of Appeals in either D.C. or Chicago.  The only other appeal after the Court of Appeals is the U.S. Supreme Court, which does not have to take the case.
  • Northwestern players have said they are not interested in negotiating for money for playing, but I suspect that if this continues down that path some group of players will be.  For now, they say they want better medical benefits and a say in how the team is run.
  • The Regional Director Decision covers Northwestern and the 16 other private Division 1 schools with FBS football programs.  In the event football players at a state school (like the University of Maryland, for example) want to form a union, they would have to go through the MD State Labor Board processes.  The NLRB decisions are not binding in that forum, but would be looked at for guidance.
  • The NLRB’s ruling is not controlling on other federal or state entities, but it will be interesting to see if this leads to worker’s compensation coverage for football players.
  • Currently under IRS Regulations the value of a scholarship is exempt from taxation.  Now that the NLRB has found that the scholarship is akin to the payment that makes the players employees, it will be interesting to see if Congress or the IRS changes its view on the exemption for scholarships.
  • The Board ruling is specific to big time football programs; it will be interesting to see what application it would have if student athletes on non-revenue sports teams (rowing, swimming, etc.) tried to unionize.


New Performance Standards Could Be Pretext for Discrimination

Posted in Employment Discrimination, Litigation, Reasonable Accommodation, Workplace Trends

In our troubled economic times, many employers have focused on making their workforce leaner and more efficient.  This frequently involves raising performance standards for employees.  But it is important to do so in a thoughtful and legally defensible way.

An illustration of this point can be found in the case of Dupont v. Allina Health System, which involved a long-term employee with a number of physical impairments.  This employee had worked as an environmental services aide for a hospital for more than 30 years, cleaning patient discharge rooms and other common areas, and had been considered a valuable employee. 

In 2011, the hospital implemented new cleaning standards that required the patient discharge rooms to be cleaned in 30-45 minutes.  The stated reason for the new standards was to increase patient satisfaction by shortening wait times for available rooms, which certainly seems reasonable.  Because of her disabilities, however, the employee could not meet the new standards and she was suddenly found to be not so valuable – she was issued corrective action.  The employee requested several different accommodations: to be given more time, to have other workers help her (as they had in the past), and to be assigned to clean areas other than patient discharge rooms (which also had been done in the past).  All of them were refused, and she was ultimately terminated for failing to meet the new standards.

The court noted that there were concerns about the hospital’s implementation of the new standards.  The court questioned whether the new time limits for cleaning rooms were an essential function of the aide’s job, given that the aide had performed the same job without those time limits for 35(!) years.  In addition, she had been given her requested accommodations in the past.  These standards were also not “black and white” in that the time to clean a room varied based on a number of factors, such as the type of room and the equipment it contained.  The court further found significant the fact that the standards were unwritten.  Because of these concerns, the court declined to dismiss the aide’s claims, and the case will proceed to trial.

What this case illustrates for employers is the need to consider and implement carefully any new performance standards.  Although it is entirely reasonable and legitimate to impose new standards, these standards should be well-defined and communicated appropriately to employees.  It may be wise to put them in writing.  But most importantly, employers should consider whether the new standards are actually essential job functions in the case of employees with disabilities, who may not be able to meet those standards.  There may be situations where the standards must be waived as a reasonable accommodation, depending on the circumstances.

“Hen House” Statement Can Be Evidence of Discrimination

Posted in Employment Discrimination, Litigation

“Too many hens in the hen house.”  Quaint remark, isn’t it?  The problem is, these quaint remarks can end up as evidence of discrimination, as one employer learned to its sorrow in Ford v. E.J. Leizerman & Associates, LLC.

In that case, an older female attorney sued her law firm for age and sex discrimination after her termination.  The firm stated that her termination was part of a reduction in force.  There was evidence, however, that could support a finding that the firm’s explanation was simply a pretext for discrimination.  Among the evidence were several gender-related comments that were allegedly made by the partners: that the plaintiff could not sit at counsel’s table during a trial because she would be the third woman at the table; that the plaintiff would not be allowed to attend certain railroad-related parties because women cannot make it in the area of railroad law (even though the plaintiff was practicing law in that area); and, in the context of the termination of another female employee, making reference to the “hen house” and that having too many hens together is a problem.  Because of this evidence, the court refused to dismiss the claims, meaning that the case would proceed to trial.

I’m sure the partner making the “hen house” statement didn’t think much of it at the time – he was probably just making a flip comment.  Many of us use old clichés and sayings because they are familiar or may seem apt to the situation.  It has long been part of the common vernacular to refer to women as various types of fowl – “chicks,” “birds” and “hens” among them.  The problem is that these types of comments can take on a derogatory or negative meaning, even unintentionally. 

 Lesson for employers – think before you speak!  Or you may just put the cat among the pigeons.

Confidentiality Agreement Breached By Daughter’s Facebook Post

Posted in Contracts, Litigation, Social Media

Teenagers!  In the world of social media, they seem to have no sense of privacy.  They will share anything and everything with their multitude of Facebook “friends.”  And in one case, doing that cost the teenager’s father $80,000 for breach of the confidentiality provision in his settlement agreement.

In Gulliver Schools Inc. v. Snay, a headmaster sued his school for age discrimination and retaliation.  The parties settled for a total of $150,000 – $10,000 in back wages, $80,000 in other compensation, and $60,000 for attorney’s fees.  The settlement agreement included a confidentiality provision, stating that the headmaster “shall not directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…. A breach…will result in disgorgement of the Plaintiff[']s portion of the settlement Payments.”

So it appears that, practically before the ink was dry on his signature, the headmaster told his daughter about the settlement, because she immediately posted on her Facebook page: “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”  This charming comment was shared with her 1200 Facebook “friends,” many of whom had attended Gulliver or were current students there.  Unsurprisingly (because really, kids, social media is not private!), Gulliver found out about the posting and notified the headmaster that he had breached the agreement.  Therefore, the school initially refused to pay the monies that were to go directly to the headmaster, although it paid the attorney’s fees.  It later paid the $10,000 in wages, but continued to withhold the $80,000.

The Florida Court of Appeals agreed with the school that there had been a breach – the headmaster had “violated the agreement by doing exactly what he had promised not to do” by telling his daughter that the case had been settled.  And then she “did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”  Bottom line, the daughter’s Facebook post cost her father $80,000.

From management’s perspective, this case illustrates the importance of a strong confidentiality provision – and making sure that plaintiffs understand what that actually means.  From a parental perspective, I would have grounded my daughter for the next ten years.

Disturbing Criminal History Ordinance Being Considered in Baltimore

Posted in Background Checks, Employment Discrimination, Laws & Regulations

I follow proposed employment legislation in Maryland during our legislative session, which runs from January to April each year. More and more, the bills that are proposed use California statutes as models, which is troubling. Employers in our State certainly do not want Maryland to become the “California of the East!” More troubling still, in Baltimore City (which genuinely needs to attract more business) there currently is a piece of legislation pending before the City Council that would prevent employers from asking about an applicant’s criminal history until a conditional job offer is made, and thus is much more radical than typical “ban-the box” legislation enacted in a few states.

Some states prohibit “the box” (i.e. a question about criminal history) on an employment application but do permit criminal history questions to be asked of an applicant in a job interview.  The stated rationale for this type of law is that it gives convicted criminals, who otherwise might be automatically disqualified from employment by an affirmative answer to the criminal history question, to get their foot in the door and potentially “wow” the employer during an interview.  (While I understand the rationale, I actually don’t see the need for this type of law -  the EEOC has repeatedly and aggressively stated that automatic disqualification policies are discriminatory against minorities.  In my experience, most employers don’t consider an affirmative answer to automatically disqualify an applicant.  They do take the circumstances of the conviction into account – what kind of conviction, how long ago it was, etc.)    

The proposed ordinance, however, takes this even further – unreasonably so.  It would permit employers to obtain criminal background information only after a job offer is made (except for jobs where criminal background checks are required by law).   This means that an employer would go through an entire recruitment process only to find out, after choosing a candidate, that the individual has an employment-disqualifying criminal record.  That simply makes no sense.  What a waste of time and recruiting resources! 

In addition, the proposed ordinance prohibits employers from taking any action against an applicant or employee based on arrest.  Sometimes employers want to put an employee on leave while certain charges are pending.  This would affect an employer’s ability to do so. 

This proposed ordinance is really troubling for employers.  If you’re a Baltimore City employer, you may want to let your Council member know about your concerns!


Regular Attendance Can Be An Essential Job Function – Really!

Posted in Employee Leave (FMLA and ADA), Litigation, Reasonable Accommodation

One of the most challenging issues that my clients deal with is managing employee leave rights under the Americans with Disabilities Act and the Family and Medical Leave Act.  Getting employees to come to work on a regular basis can be frustrating – hair-pulling, teeth-gnashing frustrating.  So the recent case of Mecca v. Florida Health Services Center, Inc., in which the court held that regular attendance at work is an essential function of a specialty nurse’s job, is grounds for rejoicing by employers.

This case involved a peripherally inserted central catheter (PICC) nurse, a position that requires specialized training and is subject to specific treatment protocols.  The nurse requested and received accommodation for panic attacks in the form of both intermittent and block FMLA leave.  After being threatened with termination for failing to respond to requests to assess patients and insert a PICC line, the nurse resigned.  He subsequently sued, claiming among other things that the employer failed to provide reasonable accommodation under the ADA.

In order to be protected under the ADA, an employee must be able to perform the essential functions of his job with or without reasonable accommodation.  The ADA regulations identify three bases for finding that a job function is essential:

  • the reason the position exists is to perform the function
  • there are a limited number of employees available among whom the performance of the job function can be distributed
  • the function is highly specialized so that the incumbent in the position was hired for his or her expertise or ability to perform the particular function

In this case, the court found that the nurse’s position was so specialized, he could not be easily replaced at a moment’s notice, which would jeopardize patient care.  Therefore, regular and punctual attendance was an essential function of the PICC nurse position.  The only accommodation the nurse sought was leave.  But taking leave obviously will not help the nurse meet the essential job function of regular attendance.  Because the nurse could not perform an essential function of his position, he was not entitled to the protection of the ADA.

Sadly, even though it makes no sense, regular attendance is not considered an essential job function for many jobs.  But it may be for certain specialized positions, and employers should be aware of this possibility as they struggle to manage employee leave demands.

Lessons from the Ivy League on Discrimination and Retaliation

Posted in Employment Discrimination, Laws & Regulations

Even smart people can get tripped up on personnel decisions.  Harvard, for example, ran into this problem in Pierce v. President and Fellows of Harvard College

That case involves an African-American university police officer claiming race discrimination and retaliation in the denial of three promotions and being placed on foot duty.  The court threw out the claims as to one of the promotions and the foot duty assignment, but found that there was enough evidence to support his claims as to two of the promotions to send it to trial.

Specifically, the court found “puzzling” and “inconsistent” Harvard’s explanations as to one of the promotions – that the promotion was cancelled by the chief of the university police department because a member of the interview panel leaked interview questions to one of the candidates, that there may have been sex discrimination because a highly-qualified female was not advanced in the process, and that a new development project might change the department’s staffing needs.  The court noted the inconsistency in the chief’s explanation of finding the leak to be so problematic that the promotion had to be cancelled, but not taking any disciplinary action against those involved in the leak.  As to the sex discrimination, a female panel member said that she saw no improprieties in the process.  And with regard to the staffing needs, Harvard failed to explain how or why the project would affect staffing.

As for the second promotion, the Court found troubling evidence that suggested the successful Caucasian candidate had been preselected for the position and that the selection process had been “exceptionally abbreviated,” with interviews lasting only 10 minutes each and taking place in the course of a single day.  The typical process takes at least one week, according to six witnesses.  The officer also offered evidence that his managers’ attitudes towards him changed after he complained about possible discrimination, and that he was targeted for an extended disciplinary investigation.  In addition, there was evidence that the departmental managers had retaliated against other employees, including similar changes in attitude, who had either complained about department management or supported complainants.

There are a number of lessons here for employers.  First, don’t offer inconsistent or changing explanations for an employment decision.  Second, make sure your explanation makes sense.  Third, don’t deviate from normal processes unless you have a really good reason for doing so (and make sure you can prove that reason).  Fourth, make sure you continue to interact with complaining employees in the same professional manner that you interact with other employees, and don’t assign them suddenly to less favorable work or shifts.