“According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically.”

So begins United States District Court Judge James Boasberg’s opinion yesterday that officially invalidates the new NLRB election rules – for now, anyway.   A lot of interesting legal issues were before him in the case, but he based his opinion on one narrow and technical issue – whether the Board constituted a proper quorum when the final vote on the rules took place.   The Court answered “no.”

Going back to last year, the Board held a public hearing on the proposed rules on November 30.   There was rampant speculation that Member Hayes might not participate in that hearing and thus deprive the Board of its required three member quorum.  Hayes decided not to do that, showed up, and voted no.   At the end of that meeting, it was determined that a final rule with the exact language would be drafted.

On December 14, 2011, Chairman Mark Pearce distributed an email to the other Board members containing a draft Order directing that the final rule be published in the Federal Register.    Chairman Pearce and Member Becker voted yes by email, and Hayes voted no again.  On December 16, 2011, a final version of the rule itself was circulated electronically.   Pearce and Becker voted to approve the rule.  Hayes did not vote at all.  From an affidavit cited in the ruling, it does not appear that Hayes failed to vote out of ill-will—rather he just thought that his December 14 vote was enough and “[he] gave no thought as to whether further action was required of [him].”

The Court gave plenty of thought as to whether further action was required and found that further action was indeed required.  The Court found that by failing to say anything in response to the December 16 distribution, Hayes “simply did not show up – in any literal or even metaphorical sense.”   And by failing to show-up, the Board lacked a proper three-member quorum.   The Court stated that:

“He simply did not show up – in any literal or metaphorical sense. Had he affirmatively expressed his intent to abstain or even acknowledged receipt of the notification, he may well have been legally “present” for the vote and counted in the quorum. Had someone reached out to him to ask for a response, as is the agency’s usual practice where a member has not voted, or had a substantial amount of time passed following the rule’s circulation, moreover, it would have been a closer case. But none of that happened here. In our prior world of in-person meetings, Hayes’s actions are the equivalent of failing to attend, whether because he was unaware of the meeting or for any intentional reason.  In any event, his failure to be present or participate means that only two members voted. . . .”

As a result, because only two members voted, the Board lacked a quorum, and because the Board lacked a quorum, the rule is invalid.   A technical ruling, for sure, but the end result is that the rules are out, for now.

The question is – what will the Labor Board do to cure this defect?   Presumably, the three Democrat members of the Board could get together today, re-vote to approve the rules, re-publish them in the Federal Register, and the rules would take effect again sometime in the future.   Because the Judge failed to rule on the merits of the case, this also means that the Chamber of Commerce and other organizations would probably file another lawsuit challenging the rules and we would be back to square one.   It seems highly unlikely that given the amount of time and resources the NLRB has spent on these rules that the Board will just let this ruling stand.

As I mentioned in my five-part blog series on managing possible leave abuse under the FMLA, employers can hold employees accountable for failing to comply with call-in procedures, even when the absence is connected with FMLA.  This point was well-illustrated in the recent case of Chappell v. The Bilco Company, in which the employee ably demonstrated various ways to violate the company’s attendance policy and procedures.

The employee provided FMLA certification that he would be needed to care for his mother after her hip surgery.  When he actually took the leave, however, the employee simply left a message for his supervisor rather than speaking with him directly, as required by the call-in procedures set forth in the company’s attendance policy.  Because of this, he was assessed points under the attendance policy.

Six months later, the employee called his supervisor to inform him about two absences, but did not state that they were to care for his mother because of concerns about her blood sugar level.  He informed his supervisor of this after the fact, and was directed to submit new FMLA paperwork.  Because he did not do so, he received more points under the attendance policy.

The following month, the employee told his supervisors that he neede to take his mother to a doctor’s appointment (for which he had previously submitted other FMLA certification).  Because of the workload, he was told that he needed to tell them the actual appointment time, and that he needed to report to work before and after the appointment.  The employee not only failed to inform them of the appointment time, he failed to report to work at all that day.  He was given a 1/2 day of FMLA, but the other 1/2 day was counted against him under the attendance policy, resulting in his termination.

The employee claimed that he should not have been assessed points for these various absences, because they were for FMLA-covered reasons.  The U.S. Court of Appeals for the Eighth Circuit disagreed, finding that his non-compliance with the employer’s call-in procedures and his supervisors’ directions was appropriately counted against him for purposes of the attendance policy.

So, keep in mind that one tool you can use to manage employees on FMLA is to have an attendance policy with specific call-in procedures.  Then make sure that you hold all employees accountable under the procedures- not just those on FMLA, because  otherwise you’ll face a legitimate claim that you are targeting employees on FMLA.

In Part One of my analysis of the recent case brought by the NLRB challenging various aspects of the Rio Hotel & Casino’s employee handbook, I reviewed two parts of the handbook that the Board found objectionable: a prohibition on off-duty clothing and an off-duty access rule.   The ALJ ruled in favor of the Company in both instances.   Below, I will now review two other handbook provisions that the Labor Board objected to and the outcome for each objection.  All Handbook provisions are verbatim from the actual Employee Handbook.

 

Confidentiality Rules

Employee Handbook: Confidentiality: All employees are prohibited from disclosing to anyone outside the Company, indirectly or directly, any information about the Company which has not been shared by the Company with the general public. This type of

disclosure includes participation in internet chat room or message boards.

Exceptions to the rule include disclosures which are authorized by the Company or

as required or authorized by the law. This information includes, but is not limited

to:

  • Company financial data
  • Plans and strategies (development, marketing, business)
  • Organization charts, salary structures, policy and procedures manuals
  • Research or analyses
  • Customer or supplier lists or related information.

NLRB General Counsel Complaint:  The GC’s objection to this provision was somewhat unclear.  The complaint objected to this entire rule, but in its brief to the ALJ, the GC backed down from that view, and objected only to the prohibition against the disclosure of “organizational charts, salary structures, policy and procedure manuals” and the rule which defined confidential information as “any information about the company which has not been shared by the Company with the general public.”  The GC claimed that these prohibitions would inhibit protected concerted activity because they would preclude employees from discussing wages and working terms and conditions as well as freely contacting and conferring with union representatives, Board agents, or other third parties on “internet chat rooms or message boards” concerning these particular subjects.

ALJ Decision: NLRB loses, on the basis that the Board previously held that a rule prohibiting the disclosure of “organizational charts and databases” did not explicitly restrict Section 7 activity and that the context of such a rule made it doubtful that employees would construe it as interfering with Section 7 either.   The ALJ acknowledged that the Rio’s rule “contains no magic words such as “intellectual property” or “proprietary assets,”” but that nevertheless, “the examples set forth in Respondent’s rules plainly establish that these are the interests Respondent seeks to protect.”

One important lesson for employers here might be to include “magic words” such as “intellectual property” or “proprietary assets” in order to make it clear that this is what is being protected.

 

Computer Usage Policy

Employee Handbook: Two sections of a long computer usage policy were primarily called into question.

Computer resources may not be used to:

  • Share confidential information with the general public, including discussing the company, its financial results or prospects, or the performance or value of company stock by using an Internet message board to post any message, in whole or in part, or by engaging in an internet or online chat room

 

  • Do not visit inappropriate (non-business) websites, including but not limited to online auctions, day trading, retail/wholesale, chat rooms, message boards and journals. Limit the use of personal email, including using streaming media (e.g., video and audio clips) and downloading photos.

 

NLRB General Counsel Complaint: First, the GC urged the ALJ to overturn the Labor Board’s Register Guard decision, which gave employers more leeway to restrict computer usage.   The GC then objected to the two above sections of the handbook, arguing that the limitation on personal email use may “inhibit employee’s Section 7 rights, as they do not allow employees to express concerns which may later become logical outgrowths of group concerns or discuss wages or working conditions.” The GC reached that conclusion because it assumed that the restriction on ““confidential” as used in the computer usage policy parallels that found in the confidentiality rules.”

 

ALJ Decision: NLRB loses, on the basis that the computer usage policy does not explicitly import the same confidential definition as from the confidentiality rules section.   Furthermore, the ALJ found nothing explicitly restricting Section 7 rights with this provision and that the GC did not meet its burden to establish that the rule would be construed as such.  Finally, the ALJ refused to overrule Register Guard, finding that a matter for the Board.

 

Stay tuned for Part Three of this series which will review two additional Employee Handbook provisions.

 

 

 

Last week, the EEOC issued an “updated” Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII .  The guidance takes the place of the Commission’s 1987 and 1990 policy statements, and was precipitated by a 2007 federal court decision that criticized the EEOC’s past guidance.

While the Commission uses the same general standards that have been in place for evaluating whether a conviction should be a bar to employment, it interprets those  standards in a way which makes it more difficult for employers to defend against any adverse employment action based on a employee’s criminal conviction.  As reported by The Daily Record, the take away message for employers is this:

Employers beware: Your prohibition on hiring job applicants with arrest or conviction records could land you in trouble with the U.S. Equal Employment Opportunity Commission.

Consistent with its past position, the EEOC emphasizes that employers must consider (1) the nature of the crime, (2) the time elapsed, and (3) the nature of the job.  The new guidance, however, suggests that employers should conduct an “individualized assessment” with regard to each applicant to determine if the policy as applied is job related and consistent with business necessity.  In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:

 “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.”

This individualized assessment will no doubt cause headaches for employers.  Indeed, the Commission suggests that employers must review multiple factors for each applicant, including:

  •  The facts or circumstances surrounding the offense or conduct.
  •  The number of offenses for which the individual was convicted.
  •  Older age at the time of conviction, or release from prison.
  •  Evidence that the individual performed the same type of work, post-cnviction, with the same or a different employer, with no known incidents of criminal conduct.
  • The length and consistency of employment history before and after the offense or conduct.
  • Rehabilitation efforts (e.g., education/training).
  • Employment or character references and any other information regarding fitness for the particular position.
  • Whether the individual is bonded under a federal, state, or local bonding program.

Clearly, this could become an onerous process for employers, especially those employers with large applicant pools.  Moreover, applicants and employees may be unwilling to share such information with prospective employers.  Notably, however, the guidance does state that if the individual does not respond to the employer’s attempt to gather additional information about his background, the employer is free to make a decision without such information.

The bottom line is that the Commission’s claim that the updated rules do not reflect a substantive change in its enforcement policy or the guidelines it expects the courts to apply is disingenuous.   The standards the Commission has published will, if deferred to by the courts, make it more difficult for employers to sustain the rejection of an applicant because of a conviction record.

A little-noticed ALJ case recently coming out of Las Vegas gives employers excellent insight into how the NLRB General Counsel views certain employee handbook provisions.   The case involved the famous Rio Hotel and Casino – a venue which boasts a couple thousand hotel rooms and, in my opinion, the best buffet in Vegas.  Last July, the NLRB’s Acting General Counsel’s office brought a complaint against the casino on the basis of several sections of its employee handbook.

The case went to an ALJ and, as I will detail below, the NLRB lost most of its charges.   But employers should pay attention because these are the type of provisions that are drawing NLRB scrutiny right now.  Checking to see if your own handbook has these provisions and possibly making some modifications might be warranted in order to stave off Board proceedings.

The basis of the complaint is that an employer violates the NLRA if it maintains workplace rules that tend to chill Section 7 activities by employees.   One such Section 7 activity that was implicated by these rules is the right of employees to engage in protected concerted activity.  In short, two or more employees have a right to complain about their terms and conditions of employment, without retaliation from their employer for doing so.  This provision of the NLRA applies to both unionized and non-unionized employers.

Today and Monday I will re-publish the six portions of the employee handbook that the General Counsel’s office found objectionable and the ALJ’s decision on each portion.   This will provide a roadmap of specific employee handbook provisions that are being called into question.

(1)  Prohibition on Off-Duty Clothing

Employee Handbook: “Visiting Property When Not In Uniform: When on property while off duty for 30 training, New Hire Orientation, meetings, or coming in to change for work, the following Appearances Guidelines apply . . . The following may not be worn: bathing suits, short shorts, thong type sandals, tube tops, halter tops, tank tops, thin straps, strapless clothing, midriff tops, clothing which displays profanity, vulgarity of any kind, obscene or offensive words or pictures.”

NLRB General Counsel Complaint: The words “clothing which displays profanity, vulgarity of any kind, obscene or offensive words or pictures” could reasonably lead an employee to “construe the rule to prohibit them from wearing clothing intended to protest working terms or conditions for fear that Respondent may deem it to be vulgar, profane, or offensive.”

ALJ Decision: NLRB loses, on the basis that he was “unpersuaded” that employees “would reasonably construe the rule to prohibit Section 7 activity.”

(2)  Off-Duty Employee Access & Manager’s Authorization

Employee Handbook:  With your manager’s authorization you may use the Rio public facilities while off duty. When doing so, employees must act professionally and adhere to Conduct Standards (note the above Conduct Standard regarding gambling). In addition, if alcohol is consumed, it should be done responsibly while having a meal. Employees participating in company-sponsored events where alcohol is served (e.g. award banquets) must act responsibly and professionally.

Visits are permitted with your supervisor’s or manager’s approval so long as you are not in uniform. With that approval, you may visit public lounges, restaurants, casino and other public areas while off duty. When using any of the facilities as a guest you are restricted to public areas. Even though off duty, you are expected to conduct yourself in a manner consistent with the Conduct of Standards. Please ensure you review Conduct Standards #7 (gambling) and #9 (consuming alcohol) prior to visiting the property.

NLRB General Counsel Complaint: The GC argues that the rule could interfere with Section 7 rights, because an employee might believe that he needs a manager’s “authorization” or “approval” to engage in certain Section 7 Rights.

ALJ Decision: NLRB loses, on the basis that the rule could not be read by reasonable employees as requiring prior managerial permission in order to engage in protected activities on their free time in non-work areas.

 

Monday: Check back for the other portions of the Employee Handbook that the General Counsel’s office found objectionable and the ALJ’s decision on each. 

Today marks a new day for the National Labor Relations Board, as significant changes to its election procedures officially take effect.   All NLRB election petitions filed starting today will be subject to these new rules.

The most significant changes concern the role of a pre-election hearing.   Up until now, a pre-election hearing was an opportunity for the Union and the Employer to litigate various issues associated with the election, including which employees should be eligible to vote and which employees are supervisors and are ineligible to vote.   Now, according to a Guidance Memorandum released by the NLRB General Counsel’s office last week, individual voter eligibility issues will be litigated at a pre-election hearing only if 10 percent or more of the unit is in question.    Furthermore, when deciding scope of voting unit issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework (see our previous series of blog posts analyzing post-Specialty Healthcare cases here).  That is, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and share a community-of-interest.  If so, the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”   The hearing officer and regional director will then make the call as to whether the employer has met that test.

What if the hearing officer and regional director get it wrong?  After all, Specialty Healthcare was just released last August, the case was a major deviation from how bargaining unit determinations were previously made, there are scant Board cases on the issue, and the case is on appeal in the 6th Circuit.   Yet, the new election rules eliminate any pre-election appeal to the NLRB of hearing officer/regional director determinations, unless there are “extraordinary circumstances.”   In discussions we have had with Region 5 personnel, it appears that employers will need to trust that the Regional offices and their staff will get these bargaining unit determinations right.  We also understand from NLRB staff that the “extraordinary circumstance” pre-election appeal will be rarely granted by the Board.

As for the supervisor issue, disputes over whether an employee is a supervisor will not be considered at the pre-election hearing at all, if the employees in dispute constitute less than 10 percent of the voting unit.  Those employees will vote subject to challenge and the issue will be decided post-hearing.

The new rules change some other technical aspects of the hearing as well.  For instance, on the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.  Regional Directors are encouraged to narrow the issues at a “pre-hearing” hearing and conduct a pre-hearing conference, if necessary.  And, in a major logistical change, the hearing officer retains discretion on whether to allow post-hearing briefs.   When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.

The post-hearing process is also different under the new rules.  The biggest change is that exceptions to the hearing officers’ report and requests for review will be considered by the Regional Director.   The Labor Board may grant or deny requests for review, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

The big question many employers have is how much time they will be allotted between the filing of an election petition and an actual election.   Previously, the Board used a 42-day timeframe.   The new rules and the GC memo do not establish a new timeframe.   However, given the changes outlined above, the 42-day period will be shortened.   The exact amount of time will depend, as reviewed above, on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing.  Also, a major factor in the timing is whether the Union waives its right to a voter eligibility list.  The Union has a right to have such a list (called an Excelsior list) for 10 days prior to the election, but can waive that right, for some or all of the 10 day period.   A Union that feels good about its chances of winning an election (or has already obtained the info through other means) now might very well waive that right in order to speed up the election.   Running through an example with the new rules, it appears that the petition to election time frame could be as little as 28-30 days if the Union waives its right to the list.  If not, the election still could take 38-40 days, though this would be the outer bounds.

The big picture is that the new rules will likely result in faster elections.   This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important employers have a proactive strategy now that addresses unionization.      In that way, today is not only a new day for the NLRB, but for all non-union employers as well.

Managing an employee on leave for a disability under the Americans with Disabilities Act (ADA)  can be challenging.  It becomes even more frustrating when the employee fails to respond to an employer’s request for information about the employee’s condition and status.  But employers are not entirely without recourse.  Courts have consistently found that employees who fail to respond to their employers’ requests for information are not protected by the ADA.

For example, in the recent case of Alston v. Microsoft Corp., a federal District Court in New York rejected an employee’s claim that his employer failed to accommodate him by providing an indefinite leave.  In that case, an employee received several extended leaves of absence, in addition to other workplace accomodations.  He applied for, but was denied long term disability benefits.  At that time, the employer sent the employee a letter, informing him that he needed to return to work or to submit to an independent medical evaluation (IME).  Receiving no response to its letter, the employer then sent an e-mail and left a message at his home.  When the employee still failed to respond, he was terminated.  He filed suit, claiming a violation of the ADA.

The Court found that, “Requiring an employer to keep an employee on an extended leave of absence with no indication of whether or when the employee will return constitutes an undue hardship under the facts of this case.”  The Court further rejected as “nonsensical” the employee’s contention that he should have been permitted to take an IME before being terminated, despite his failure to respond.  As the Court noted, in the letter to the employee, the employer directed him to advise them if he intended to take an IME.  As the Court logically stated, the employer “is not required to infer – from plaintiff’s total silence – that [plaintiff] had intentions to either return to work or to undertake the medical examinations.”  Thus, the Court appropriately found, “Plaintiff’s failure to act is not a failure to accommodate on the part” of the employer.

Bottom line – if an employer requests information about an employee’s return to work status, the employee has an obligation to respond.  So if an employer takes (and documents!) reasonable steps to determine whether an employee can return to work, and the employee doesn’t respond, the employer can justifiably terminate the employee.

 

According to a recent article in the Wall Street Journal, the cost of Social Security Disability Insurance (SSDI) benefits has skyrocketed.  In 2010, U.S. workers paid $104 million into the program, while far more – $127.7 billion – was paid out in benefits.  Much of this is due to expanded definitions of disability, but the article reports that fraudulently obtained benefits also are a major problem.

Against this backdrop, a case issued by the U.S. Court of Appeals for the Fourth Circuit on April 17, 2012 is particularly interesting.  In EEOC v. Greater Baltimore Medical Center, the EEOC asked the Fourth Circuit to reverse the grant of summary judgment in favor of GBMC under the Americans with Disabilities Act (ADA).  GBMC refused to reinstate an employee who made representations to the Social Security Administration (SSA) that he was totally disabled from working.  The lower court found the employee’s representations to SSA to be utterly inconsistent with any conclusion that he was a “qualified individual with a disability” under the ADA; that is, able to perform the essential functions of his job, with or without a reasonable accommodation.

The applications for SSDI benefits filed by the employee asserted that he was totally disabled from work as demonstrated by:

  • severe impairments in his left arm and hand,
  • use of a beside commode with hand rails,
  • left sided weakness which required him to have assistance with walking,
  • use of leg braces,
  • inability to drive,
  • inability to lift more than two to three pounds, and
  • severe limits on his ability to stand, bend, or walk.

According to a case decided several years ago by the U.S. Supreme Court, Cleveland v. Policy Mgmt. Sys. Corp., while an employee should not automatically be “estopped” by an SSDI application from pursuing an ADA claim, in order to survive summary judgment, he has to provide some reasonable basis to permit a jury to conclude that his representations of “total disability” are reconcilable with a claim that he is a “qualified individual with a disability” under the ADA.  In this case, the question for the court was could a reasonable jury find that this employee was acting in good faith in representing to SSA that he could not work at all while at the same time telling GBMC that he could return to work without any accommodation?

A divided Fourth Circuit answered no.  Having never alerted SSA to any change in his circumstances and having continued to receive his checks, the employee’s ADA claim was, the majority concluded, foreclosed.  The court found it impossible for the employee to both have a good faith belief that he could return to work without accommodation while at the same time have a good faith belief that he was entitled to benefits due to his total disability, as detailed in his SSDI application.

The EEOC countered that “passive receipt” of such benefits by the employee should not be viewed as an affirmative representation to SSA.   The majority rejected this position.

Judge Gregory, in dissent, would have reversed summary judgment, mainly because the EEOC, not the employee, was the party bringing the case and the EEOC never made any misrepresentations.  In addition, Judge Gregory asserted that the agency charged with enforcing discrimination laws has a broader mission.  As such, he wrote, the EEOC “should not be barred through the happenstance of an unemployed victim having applied for and received SSDI benefits.”

This case presents some interesting issues.  First, as a purely legal matter, the EEOC’s mission to address discrimination cannot be separated from the fundamental requirement that the cases it pursues be based on cognizable claims.  If the employee is not an individual with a disability within the meaning of the ADA, then his claims cannot be the basis for an EEOC enforcement action.  The majority got that right.

Second, it is hard to fathom why an employer should be accountable to an employee under the ADA for back-pay and other damages for refusing to return him to work when he has represented to the government, under oath, that he is totally unable to work and received years of disability benefit payments as a result.  Moreover, where litigation about this takes almost six years to resolve (as it did in this case), that entails significant costs, both in EEOC funds expended on litigation and those of the defending employer (in this case, a hospital).

Finally, when one government agency – the EEOC – asks the court to ignore an employee’s “passive” failure to advise another government agency – SSA –- that he is no longer entitled to benefits because he actually is not disabled from work, I start really scratching my head.

While most employers are familiar with Title I of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in employment against those with disabilities, many are less familiar with Title II of the ADA which requires that places of public accommodation and commercial facilities be designed, constructed or altered so that they are accessible to the disabled.

As the New York Times recently reported, a small group of attorneys has discovered a clever way to manipulate the requirements of the ADA for their own gain  — instead of waiting for a disabled person to come to them with a complaint regarding an establishment’s accessibility for the disabled, these attorneys are proactively looking for businesses that are not in compliance with the law and then recruiting disabled persons to serve as plaintiffs.   The attorneys are typically targeting small businesses, such as delis, flower shops and liquor stores, and they allege violations ranging from no ramps to shelves that are too high.

Once finding a plaintiff, the attorney then files suit against the establishment.  While the plaintiffs themselves collect only about $500 per suit, the lawyers makes several thousand dollars off of each lawsuit.   Further, the same plaintiff can, and is being used, several times by the same attorney to file suits against different businesses.  In one glaring example, a Florida attorney filed
143 lawsuits using the same plaintiff, including 9 lawsuits in one day.

This practice has sparked a debate regarding the fairness of such lawsuits, with one side arguing that the targeted businesses are non-compliant with the ADA so the suits are justified, and the other side arguing that this is just a new version of ambulance chasing.  The trend in these types of lawsuits is not unique to New York, as the Times reports:

 “In the last year, 3,000 similar suits, including more than 300 in New York, were brought under the Americans with Disabilities Act, more than double the number five years ago.”

There is little an employer can do to fend off these types of lawsuits, except make sure that their facilities are compliant with the ADA’s regulations.

Here are the facts: An employer suspected an employee of fraudulent misuse of FMLA leave.  It hired a private investigator to watch the employee over a six-day period when the employee was taking FMLA leave for severe back pain.  The investigator reported that the employee went hunting several times – one time for ten hours.  The employer terminated the employee for fraud and dishonesty in relation to his use of FMLA.  Seems pretty clear cut, doesn’t it?

In Turner v. Parker-Hannifin Corp., the U.S. District Court for the Western District of Michigan disagreed.  The Court questioned whether it was reasonable for the employer to terminate the employee based solely on the investigator’s report.  The Court noted that the employer did not typically conduct surveillance on employees taking FMLA leave, and that its “lack of experience in this area appears to reflected in the quality of the Report it requested and received.”  The Court found that the report did not address whether the employee’s hunting activities were inconsistent with his doctor-imposed restrictions, and did not indicate whether the employee had engaged in specific actions (like bending, twisting, heavy lifting, etc.) that were inconsistent with his assertion that he could not work.

The Court further stated that the employer failed to consider the employee’s actual medical condition or limitations.  Significantly, the Court was troubled by the employer’s failure to give the employee an opportunity to explain his activities.

What is the lesson here?  As I mentioned in my earlier five-part blog series on managing potential FMLA fraud, employers can conduct surveillance of employees suspected of FMLA fraud.  This case serves as a warning that the information sought through the surveillance must be focused on the employee’s actual physical actions during the surveillance period, and the employer must consider whether those actions are inconsistent with the doctor-specified limitations for the employee.

In addition, before taking action against the employee, it is important to give the employee the chance to explain.  This plays into a factfinder’s (whether a court, jury, or government agency) basic sense of fairness.  Plus, you never know – there might actually be a reasonable explanation for the perceived discrepancy.