Under the Family and Medical Leave Act (“FMLA”), employers face significant challenges in understanding how much information from an employee is considered sufficient to trigger the employer’s duty to follow up. Courts have routinely found that minimal information will trigger an employer’s duty to ask if the employee needs leave and the corresponding duty to seek more information to determine if the FMLA applies. Knowledgeable employers know that an employee does not have to use any “magic language” and does not have to even mention the FMLA or even a need for “leave.” Rather, the employee must provide sufficient information “for an employer to reasonably determine whether the FMLA may apply.”

Some recent decisions address this important issue. In a recent case decided in Michigan, Byron v. St. Mary’s Medical Center, U.S. District Court – Eastern District Michigan, Sept 11, 2012, an employee’s telling her supervisor that she was “too sick to work” and was “going to the emergency room” were sufficient comments to put the employer on notice that the FMLA may be in play. Interestingly, the employer noted that although the employee had pancreatitis, her absences were never more than three consecutive days, meaning that the absences did not qualify anyway. However, the Court noted that given the condition, and the employer’s duty to gather more information, the employer would have learned that the condition was such that her not obtaining treatment would have led to absences in excess of the three-days requirement.

Continue Reading FMLA – What Information is Sufficient to Trigger Employer’s Duty to Follow Up

Some recent court rulings have referred to the “cat’s paw theory” of liability for discrimination. Employers should be aware of these recent decisions because:

  • Employers can be held liable under this theory, even if there is no evidence that the ultimate decision-maker acted in a discriminatory manner;
  • Supervisors who wrongly influence a termination decision can be personally liable in a race case under Section 1981; and
  • This is a terminated employee’s answer to the employer-friendly “honest belief” rule.

Continue Reading Cat’s Paw Theory: What Is It? Why Should I Care?

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave.  Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

Some employers use last chance agreements (“LCA”), particularly in union settings, to allow hourly employees “one last chance” to improve performance.  In return, the employee waives the right to use the union’s grievance and arbitration process if later termination is due to continued failure to improve performance or due to another policy violation.  Employers will explain that the employee otherwise would be terminated, but can remain employed in return for signing this “one last chance” agreement; if the employee fails to sign the LCA, the employee will be terminated for the underlying violation which led the employer to offer the LCA.

Some employers also require employees to release statutory civil rights in an LCA.  As an employer recently learned, this practice is hazardous and can lead to significant liability.

Continue Reading Last Chance Agreements – Asking for Waiver of Discrimination Claims Perilous

Lawsuits under the minimum wage and overtime laws have become a cottage industry. Filings of these lawsuits have increased 400% from 2000 to 2011. Why? While some reasons may depend upon whom you ask (and their political leanings), there are clearly some trends, as noted in a recent article here.

A few reasons:

  • The Fair Labor Standards Act (FLSA) was passed in 1938 and the substance of its provisions has remained constant since then. But, our economy has changed dramatically – from a primarily manufacturing-based economy then, to a primarily service-based economy now. This leads to some “square peg/round hole” problems as employers try to apply concepts from a bygone era to a new economic reality.
    Continue Reading Wage and Hour: Why So Many Lawsuits?

The National Labor Relations Board’s recent attempt to change its union election rules has been halted by a federal district court in Washington, D.C. The Court ruled that the attempted changes were not valid because the vote to approve the rules occurred when the Board did not have a quorum (Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2262, 5/14/12).

Interestingly, the decision hinged on what is sufficient “participation” in an electronic vote to satisfy quorum requirements. Board member Brian E. Hayes did not vote or take any action in the December 16, 2011 electronic vote. Is that like being present but abstaining, and thus counting toward a quorum? No, said the Court. Hayes was only sent the notification calling for a vote; he did not vote or even abstain. His silence was as if he was not in attendance at an in-person meeting, and thus, no quorum was present for the election rules to have been properly adopted.

Continue Reading Federal Court Halts Board’s Changes in Election Rules

On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful.

BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and will result in liability for employers if they cannot show “business necessity” for rejecting an applicant based on the applicant’s criminal past.

Continue Reading EEOC Issues Guidance on Criminal Background Checks

The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any transgender applicant or employee enjoys all of Title VII’s protections against discrimination or harassment.

The complainant had applied for a job with the ATF while a male and believed she was going to be hired given certain promises made in the application process. Later, when the ATF learned she was transitioning from male to female, she was told that funding for the job was no longer available; that information, she later learned, was not accurate.

Continue Reading Transgender Status Now Protected Under Title VII

Employees in Michigan, Ohio, Kentucky and Tennessee who believe they have been wrongfully denied workers’ compensation benefits now have a new weapon – RICO. In Brown v. Cassens Transport Co., 6th Cir., No. 10-2334, 4/6/12, five employees sued their employer, a claims adjuster and a doctor alleging conspiracy to deny them workers’ compensation benefits. The Sixth Circuit Court of Appeals ruled that the lawsuit stated a claim under RICO.

RICO, the Racketeer Influenced and Corrupt Organizations Act, requires that an alleged victim identify four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Each element requires an additional analysis: an “enterprise” is marked by association and control; a “pattern” requires a showing of “continuity”, which is continuous and related behavior that amounts to, or poses a threat of, continued criminal violations; and “racketeering activity” involves the violation of designated federal laws. In addition, an alleged victim must allege that he was injured in his business or property “by reason of” a violation of RICO’s substantive provisions. Continue Reading Sixth Circuit Recognizes Potential RICO Claim If Employees Wrongfully Denied Workers’ Compensation Benefits

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Social media continues to gain attention in the employment law field.  From recent NLRB advice memoranda to Congress considering new legislation, to every employer now being advised to at least have a “policy” on social media, the news keeps pouring in. (Read this article by Eric Yaverbaum on The Washington Post blog, or this one on Mashable, or the many other articles online.)

Now, Maryland has become the first state to ban employers from asking for the social media site passwords of employees and applicants.  Relying on privacy concerns, the Maryland General Assembly passed legislation prohibiting employers from requesting or requiring usernames or passwords to personal online social media sites.  The legislation also bans an employer from taking disciplinary action, or threatening such action, if an employee or applicant refuses to disclose such information. Continue Reading Demanding Social Media Site Passwords Now Illegal in Maryland

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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