How not to fire an employee for theft.  (Workplace Prof Blog)

Diabetic’s disability lawsuit against restaurant is hard to swallow.  (LA Times)

Should I fight or settle?  (Connecticut Employment Law Blog)

New OSHA PPE (personal protective equipment) guidance.  (Manpower Employment Law Blawg)

Weekly calls to employee interfere with FMLA leave.  (FMLA Blog)  (Additional commentary here.)

Who is a successor for FLSA purposes?  (Connecticut Employment Law Blog)

The FMLA Blog has a good post here (“Adverse References to FMLA Leave Usage Sufficient to Defeat Employer’s Claim that it Terminated Employee for Performance Deficiences, Not Exercise of FMLA Rights“) on why employers should not make negative references to FMLA leave in employee performance reviews.

A recent study suggests that only 6 percent of the plaintiffs in employment discrimination cases make it to trial.

Release of memo by law firm on gender disparities at Wal-Mart may prove to be unhelpful in giant class action suit.  WSJ Blog has a post here.

Slaughterhouse manager acquitted of child labor charges.  The story is here.  Yes, there are still criminal labor law prosecutions.

The Senate has moved to eliminate the business tax deduction for punitive damages awards.  The BLT has a post here.

In Dotson v. Pfizer, Inc., the Fourth Circuit affirmed the lower court’s finding that the employer had interfered with an employee’s right to leave under the Family and Medical Leave Act (“FMLA”) and had engaged in retaliation for the employee’s exercise of those rights.  In this case, Dotson and his wife adopted a child from Russia, which required two trips to the country during 2003.  Dotson had spoken with a Human Resources representative about taking leave and the benefits available to him during that time.  Dotson also took some company samples of Zithromax to give to the orphanage as a gift.  Following his first trip to Russia, Dotson’s supervisors gave him a less than favorable performance review, and expressed displeasure in Dotson’s taking of the samples.  Just a few weeks after Dotson returned from his second trip, he was discharged.  The trial court awarded Dotson $1,876 on the interference claim and $331,429.25 on the retaliation claim.  Dotson was also awarded $331,305.25 in liquidated damages, $375,000 in attorneys’ fees, and $14,264.88 in costs.  

On appeal, the parties did not dispute that Dotson had taken intermittent leave in preparation for an adoption.  Pfizer argued, however, that it had never approved intermittent FMLA leave.  The Fourth Circuit rejected this argument, finding no evidence that Pfizer had prohibited Dotson from taking intermittent leave.  In fact, the court found that Pfizer had agreed to the intermittent pre-adoption leave because Dotson had contacted human resources about the leave and kept his supervisor informed of his plans, yet no one had ever suggested to him that he could not take the trips.  The court also rejected Pfizer’s argument that since Dotson had not properly exercised his FMLA rights, those rights could not have been interfered with.  The court stated that Dotson had given “clear and advance notice” of his need to take leave, and that Pfizer had the responsibility to determine whether the requested leave was FMLA leave. 

Finally, the court rejected Pfizer’s argument that Dotson had failed to prove pretext on the part of Pfizer.  Pfizer’s stated reason for firing Dotson was that giving the Zithromax samples to the orphanage could be regarded as a quid pro quo.  The court found that there was ample evidence from which the jury could reasonably conclude that Pfizer’s stated reason was pretext for discrimination.  In support its finding, the court pointed to the fact that other Pfizer employees who were aware of Dotson’s intent to donate the samples, including his direct supervisor and a member of the executive team in charge of his termination, did nothing to stop him.  The court also emphasized the fact that Dotson was the only one out of the five employees who were involved in the alleged mishandling of medication to have been terminated.

As to the question of damages, the Fourth Circuit affirmed the trial court’s denial of front pay as “too speculative.”  With regard to the issue of pre-judgment interest, however, the Fourth Circuit reversed the trial court’s denial of the award, stating that pre-judgment interest under the FMLA is “mandatory rather than discretionary.”  On the issue of attorneys’ fees, the court held that the award of $375,000 was reasonable.  Nevertheless, the court vacated the fee award for recalculation based on Dotson’s right to pre-judgment interest, which would result in a fuller recovery on his claims.

The final FMLA regulations became effective on January 16, 2009.   The following is a summary of the changes implemented by the new regulations:

a.      Gaps in Service:  The new regulations state that although the required 12 month period of employment before an employee can be eligible for leave does not need to be consecutive, employment prior to a break of 7 years or more will not be counted (unless the break was due to National Guard or Reserve military service or the employer and employee had a written rehire agreement).

b.      Definition of “Serious Health Condition”:  The definition of “serious health condition” remains the same under the new regulations.  However, the regulations provide further clarification in 3 areas:

i.      For a serious health condition that involves more than 3 consecutive days of incapacity plus 2 visits to a health care provider, the 2 visits must occur within the 30 days following the beginning of the period of incapacity, with the first visit taking place within the 7 days following the beginning of incapacity.

ii.      For a serious health condition involving more than 3 consecutive days of incapacity plus a regimen of continuing treatment, the first visit to the health care provider must occur within the 7 days following the beginning of incapacity.

iii.      “Periodic visits” for chronic conditions are now defined as at least 2 visits to a health care provider per year.

c.       Substitution of Paid Leave:  The FMLA allows employees to take any type of paid leave (vacation, personal, family, medical, or sick leave) concurrently with their FMLA unpaid leave.  The previous regulations had different procedures in place for the taking of vacation or personal leave as opposed to medical, sick, or family leave.  The new regulations eliminate these distinctions and require an employee taking FMLA leave concurrently with paid leave to follow the same procedures that apply to other employees requesting that type of paid leave.  An employer who requires an employee to take paid leave concurrently with FMLA leave must specify this on the designation notice.

d.      Intermittent Leave:  Employees must now make reasonable efforts to schedule intermittent leave so as not to unduly disrupt the employer’s operations.

e.       Perfect Attendance Awards:  An employer can deny perfect attendance awards to employees who do not have perfect attendance due to taking FMLA leave, so long as the employer treats employees who take non-FMLA leave in the same manner.

f.       Employer Notice Obligations:  Employers are required to provide employees with notice regarding:

i.      General information about the FMLA through a poster or in electronic form.  This information must also be included in an employee handbook or other written guidance, or distributed upon being hired.  Also, where a significant portion of the workforce is not literate in English, the information must be provided in a language in which the employees are literate.

ii.      FMLA eligibility information, employee rights and responsibilities with respect to FMLA leave, and designation of FMLA leave.  Employers now have 5 business days instead of 2 within which to provide these notices after they become aware of an employee’s need for leave.  The Department of Labor has issued a new WH-381 form which contains both the eligibility notice and rights and responsibilities notice.  The form is available as Appendices C & D to the new regulations.  The designation form is available as Appendix E.

g.      Employer Penalties:  The new regulations invalidate the categorical penalty provision for employers who fail to follow the proper notification procedures and instead states that an employee who can show harm as a result of the employer’s failure to provide a required notice could be entitled to monetary damages or equitable relief.

h.      Employee Notice Prior to Leave:  The regulations now require employees who become aware of the need to take leave less than 30 days in advance to notify their employer “as soon as practicable.”  In contrast to the previous regulations, which allowed employees to give notice of leave up to 2 days after an absence in certain situations, the new regulations now require employees taking leave to follow their employer’s normal procedures for reporting absences.

i.        Medical Certification:  The changes to the medical certification provisions are as follows:

i.      Employees may authorize the employer to contact their health provider directly, but the person who contacts the health care provider on behalf of the employer must be a human resource professional, leave administrator, health care provider, or management official, and may not be the employee’s direct supervisor.

ii.      An employee does not have to allow the employer to contact his health care provider, but if he denies contact and refuses to clarify an incomplete certification, the employer is free to deny leave.  The employer must give the employee 7 days to cure any deficiencies in the certification.

iii.      Certification forms may now include information on symptoms, diagnoses, hospitalizations, prescriptions, or doctors visits regarding the medical condition for which leave was requested.  However, this information is not required and it is up to the health care provider to determine what to include on the form.

iv.      Employers are prohibited from asking the health care provider for more information than that required by the certification form. 

v.      For medical conditions lasting longer than 1 year, employers may request new medical certifications each leave year.

vi.      An employer may request recertification for conditions of unlimited duration every 6 months in conjunction with an FMLA absence.

j.        Fitness-For-Duty Certifications:  Under the previous regulations, employers could require similarly-situated employees taking leave to certify that they are able to resume work.  The new regulations allow employers to require employees to specifically certify that they are able to perform the essential functions of their job.  However, the employer must give the employee a list of the job functions by the date of the designation notice, and the notice must also state that the employee is to address his ability to perform those functions in the certification.  Further, employers may require certifications from employees returning to work from intermittent leave if there are reasonable safety concerns.

k.      Light Duty:  The regulations also state that the time spent on “light duty” work does not count against an employee’s leave entitlement.  Further, an employee is not considered to be on leave while voluntarily performing light duty.

l.        Waiver of Rights:  Employees may voluntarily settle or release any FMLA claims without the Department of Labor’s approval or without court approval.  However, prospective waivers of claims are not allowed.

Since this is “emergency legislation,” it calls to mind the mantra of the current Administration — “never waste a good crisis.”

A third party was held in contempt by a Virginia federal court for failing to produce documents in response to a subpoena duces tecum, and then for disobeying a direct order by the court to preserve evidence on the computer – Electronic Discovery Law

Perjury by employment plaintiff during trial results in dismissal — CT Employment Law Blog

Worst employee safety drill ever — Above the Law (Hat tip to Ohio Employer’s Law Blog)

A Virginia circuit court has struck a large portion of the plaintiff’s claim for damages in a tortious interference with contract case in Roanoke — VLW Blog

Lack of knowledge of FMLA cited by court in finding violation:  “It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as [Employer] admitted he was before [Plaintiff] complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].” – Jottings By An Employers’ Lawyer

MA state court overrules federal judge in American Airlines skycap “tip” litigation — Fair Labor Standards Act Law Blog

Employee fired for ALL CAPS in New Zealand — Workplace Prof Blog

The Ohio Employer’s Law Blog has commentary here.

Please click on the following link to access all Opinion Letters from the Wage and Hour Division at:

http://www.dol.gov/esa/WHD/opinion/opinion.htm.

In Cracco v. Vitran Express, No. 07-3827, 7th Cir., 2009, Kevin Cracco worked for Vitran Express for years and received nothing but positive work reviews.  When Cracco went on FMLA leave, however, his temporary replacement discovered what he believed to be serious errors.  Vitran conducted an investigation into the alleged findings and found that Cracco had been falsifying delivery records to cover up late or missing shipments.  Based on the findings of the investigation, the day he was scheduled to return, Vitran terminated Cracco’s employment.  Cracco brought a lawsuit against Vitran based on interference with his FMLA rights.

The company argued that nothing in the FMLA prevents employers from disciplining workers for performance problems discovered while they are out on FMLA leave. Otherwise, it reasoned, it would be required to keep a subpar employee just because he took FMLA leave.  The 7th Circuit Court of Appeals agreed that employees on FMLA leave do not have rights above other employees who do not perform up to par.  The case was therefore dismissed.  Therefore, although an employee is entitled to return to his same or similar position after FMLA leave expires, he is not entitled to greater rights than non-FMLA employees.

In Smith v. The Hope School, No. 08-2176, 2009 U.s. App. LEXIS 6985 (7th Cir. March 30, 2009), an employee who was absent from work under the guise of falsified FMLA documentation was terminated by the employer.  The termination was determined to be proper by the Court. Tanum Smith worked as an instructional aide for Hope School, a residential facility for children with development disabilities.  After developing issues with students that did not allow her to work directly with students, Smith was provided medical certification forms in the event she wanted FMLA leave to cover her absence.  She provided the forms to her doctor.  After securing the FMLA paperwork from her doctor, Smith altered the medical certification in several ways.  She added to the narrative description of her condition “plus previous depression.”  Her doctor had not diagnosed or treated Smith for depression.  Smith also backdated for the FMLA form several days.  She also filled out a separate “Attending Physician’s Statement” in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.” 

After Smith submitted the forms, the school subsequently confirmed its suspicion that the form had been materially altered.  Therefore, the school denied Smith’s request for FMLA leave and terminated her for incurring unexcused absences – not for altering FMAL documents.  Smith sued alleging that her termination violated the FMLA.  The district court awarded summary judgment to the school.  The Seventh Circuit affirmed.  The court found that by altering the FMLA medical certification, Smith did not provide adequate medical certification to establish that she had a serious health condition, in support of her request for FMLA leave.  “[W]here an employee adds to a medical care provider’s certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave.”   As a result, her leave was both unprotected by the FMLA and unexcused.

Contributed by Michael K. Wilson

The core results as reported by HR.BLR.com were:

“When asked “Which federal employment-related law gives you the biggest headache?,” nearly half of respondents-49 percent–said it was FMLA.  A distant second–identified by 13 percent as their biggest employment law headache-was COBRA, followed closely by the Fair Labor Standards Act (FLSA) at 12 percent. The rest of the laws were cited by respondents as follows: HIPAA, 8 percent; the Americans with Disabilities Act (ADA), 8 percent; the Occupational Safety and Health Act (OSHA), 5 percent; and the Employee Retirement Income Security Act (ERISA), 5 percent.”

Oddly enough, these results track our statistics at The Laconic Law Blog.  Posts here on the FMLA and COBRA get the most hits by far, with the FLSA coming in third.

With each new administration comes changes to employment law. The Obama administration is making major changes that will impact your organization. This breakfast briefing will shorten your learning curve and keep you on the right side of new laws. Specifically, this event will address changes to FMLA, ADA and COBRA.  More information after the break.

When:�
Thursday, April 16, 2009
Breakfast & Networking 7:30-8:00 a.m.
Presentation 8:00-9:00 a.m.
Q&A 9:00-9:30 a.m.

Where:
Tower Club
8000 Towers Crescent Drive
Vienna, VA
703.761.4250

Speakers:
Eric Welter, Employment Law Attorney, Welter Law Firm, P.C.
Karla Leavelle, President, Human Capital Advisors LLC

Some of the issues discussed:

• New definition of “disability under ADA
• New FMLA regulations on support leave, notice obligations and medical certifications
• New COBRA benefits rules under stimulus package

Who Should Attend: HR and benefits professionals, business managers, office managers, administrators, directors, payroll professionals and attorneys.

The cost is $35.00. You may pay by credit card using Pay Pal or by check. Payment due prior to attendance.

To pay by check (payable to Welter Law Firm, P.C.) mail to:
Welter Law Firm
720 Lynn Street, Suite B
Herndon, VA 20170

For more information, contact Eric Welter @ 703.435.8500
or via email: eaw@welterlaw.com

Bridget Wright, a former employee of Southwest Airlines (“Southwest”), alleged that she had been retaliated against for requesting leave under the Family and Medical Leave Act (“FMLA”).  The district court granted summary judgment for Southwest, and the Fourth Circuit affirmed.

On appeal, Wright argued that the district court erred in finding that her supervisors were unaware of her request for FMLA leave at the time they decided to terminate her.  The court stated that to establish a claim for retaliation, a plaintiff must prove that:  1) she engaged in a protected activity; 2) an adverse employment action was taken against her; and 3) a causal link exists between the protected activity and the adverse employment action.  The burden then shifts to the employer to advance a legitimate, non-discriminatory reason for the employment action.  Upon this showing, the burden shifts back to the plaintiff to show that the employer’s reasons were mere pretext.

The Fourth Circuit acknowledged that Wright had engaged in a protected activity and that an adverse employment action had been taken against her.  The court found, however, that Wright had not established a causal connection between the protected activity and the employment action.  The court stated that to prove a causal link under the third element for retaliation, a plaintiff must show that the employer had knowledge of the protected activity.  The court found that because Wright had failed to prove that the supervisors responsible for her termination were aware of her protected activity, she had failed to establish a prima facie case of retaliation.

Contributed by Claudia L. Guzman