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.