SEPTA fired Ephriam Rodriquez from his job as a bus driver for excessive absences. Rodriguez sued, claiming that the termination violated his rights under the FMLA because a migraine headache caused his final absence (a fact of which he advised SEPTA prior to his termination).
Tuesday, October 15, 2024
One headache of an FMLA case
SEPTA fired Ephriam Rodriquez from his job as a bus driver for excessive absences. Rodriguez sued, claiming that the termination violated his rights under the FMLA because a migraine headache caused his final absence (a fact of which he advised SEPTA prior to his termination).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, October 2, 2024
Spying on your sick employees is a recipe for disaster
Do you remember the episode of The Office where Dwight stakes out Oscar's house to see if he's faking a medical condition and committing insurance fraud?
Believe it or not, something similar is happening in real life at Tesla. The managing director and human resources director of one of its foreign gigafactories recently targeted 30 employees on sick leave for home visits. While the HR director claims the visits had "nothing to do with general suspicion," the managing director has a documented history of intolerance toward factory workers who "couldn't get out of bed."
Needless to say, the employees did not appreciate the visits. "You could just tell by the aggression," the HR director said. Employees slammed doors, threatened to call the police, and questioned why the visits weren't scheduled in advance.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 19, 2024
Call me … maybe? 6th Circuit saves FMLA claim of employee who failed to follow employer's call-in rules.
Latrice Crispell, a 23-year employee of FCA working as a floater on its truck assembly line, suffered from major depression and anxiety, which qualified her for intermittent leave under the FMLA. FCA had a strict 30-minute call-in rule, requiring employees to notify their supervisors of any absence at least 30 minutes before their shift, or later with a statement explaining the missed call-in.
Crispell struggled to comply with that rule during severe flare-ups of her condition, which she argued made it impossible for her to call in on time and made her absent or late 15 times during the final three months of her employment. Despite submitting explanations and a doctor's note about how her illness made it impossible for her to comply with the 30-minute rule during flare-ups, FCA disciplined and ultimately terminated her.
Despite the employee failing to meet FCA's call-in requirements for her intermittent leave, the 6th Circuit reversed the trial court's grant of summary judgment to the employer.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 2, 2024
DOL cautions employers on the use of AI
"When used responsibly, AI has the potential to help improve compliance with the law. Without proper human supervision, however, these technologies can pose potential risks to workers … and may result in violations of the law…."
The DOL highlights many potential legal pitfalls for employers that rely on AI to manage how their employees are paid and to track their attendance and leaves of absence.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, December 4, 2023
It’s called family and medical LEAVE for a reason.
According to Above the Law, however, one Biglaw firm recently reminded its employees that they need to check their daily emails while out on leave.
There is ample time in the day for everyone on leave to monitor their emails daily and to forward any emails requiring attention to the appropriate members of the litigation team. If you are someone who has not been monitoring your emails daily, please do so as soon as possible. If, for any reason, you are unable to perform this minimal task on a regular basis, please advise.
This is not just a terrible employee relations practice, it's also potentially illegal.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 20, 2023
Facebook Messenger and other alternative communication channels for attendance call-outs
An employee uses Facebook Messenger to notify his supervisor of a medical absence, ignoring the company's policy that requires employees to use a specific call-in line to notify their supervisor of a tardy or absence at least 30 minutes before their shift begins.
Are these absences FMLA-protected excused absences, or unexcused absences subject to termination?
In 2019, Kasey Roberts took six weeks of leave to undergo and recover from an emergency appendectomy, after notifying his supervisor via Facebook Messenger. A few days after returning, Roberts was hospitalized for a post-surgical infection. He again sent his supervisor several Facebook messages notifying of his absences.
After Roberts missed three more weeks of work, his employer fired him for job abandonment, claiming that all of his absences were unexcused since the call-in line, and not Facebook Messenger, was its "usual and customary" system for medical leave notice.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 26, 2023
Yes, you can still fire employees for lying, even when they are seeking FMLA leave
67 employees of CSX Transportation submitted a required internal form requesting medical leave. Those requests had four key problems: 1.) each was submitted shortly after CSXT informed the employees that they would be furloughed; 2.) each was submitted by one of two chiropractors; 3.) each contained the same or substantially similar language referencing general minor musculoskeletal conditions such as sprains or muscle spasms with no individualized assessments and requiring at least eight weeks of leave; and 4.) they were all submitted within a very tight time period.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 1, 2023
“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim
The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.
In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, December 5, 2022
Bank properly terminates misbehaving employee despite FMLA leave, 6th Circuit holds
In 2017, a series of personal adversities, including probation for an incident with a gun and an ex-girlfriend, cocaine use, and a DUI arrest, ultimately culminated in a stroke for Mark Snyder, a financial director for U.S. Bank. When he returned in 2018 for his FMLA leave following his stroke, he suffered from residual physical and behavioral conditions, such as depression, agitation, and anxiety. Employees began to complain to management about his combative and confrontational behavior. After an investigation, the Bank told Snyder that further issues could result in other disciplinary actions, including termination of employment.
On June 4, 2018, Snyder had yet another confrontation with his supervisor, Johnnie Carrol, and his assistant Marcia Kleinhenz. As a result, Carroll emailed HR, explaining that Snyder's behavior "is consistent with his issues of attempting to intimidate people" and "I no longer think [Snyder's] situation is redeemable and feel I need to act." Carroll made the decision to terminate Snyder's employment that evening.
That same night, Snyder suffered a nervous breakdown and was hospitalized. The following day, he requested FMLA leave, which the Bank granted. A couple weeks later, however, Carroll and HR contacted Snyder to inform him that Bank was terminating his employment effective at the end of his FMLA leave.- On his FMLA interference claim, the Court concluded that the June 4 confrontation was the "point of no return" for Carroll, and that he made the decision to terminated Snyder before learning of his nervous breakdown and hospitalization later that night.
- On his FMLA retaliation claim, the Court disagreed that evidence that Snyder had been a good employee before he took FMLA leave for his stroke supported a theory that the Bank schemed to push him out of the company after he took his that initial FMLA leave. To the contrary, the Court held, "Snyder cites no evidence supporting his theory that it was the FMLA leave, not the numerous complaints into his behavior, that was the reason for his termination, and "the only evidence he has supporting his theory is timing, which by itself is insufficient."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, October 19, 2022
Don’t estop thinking about your leave claim
"Is there money owed to you for claims against third parties, whether or not you have filed a lawsuit or made a demand for payment, such as for accidents, employment disputes, insurance claims, or rights to sue?"
When Stephen Stanley filed his bankruptcy petition with the bankruptcy court, he answered that question, "No."
His problem, however, was that within weeks of filing his bankruptcy, Stanley's employer fired him from job, which he believed was related to their earlier FMLA violations.
Several months later, the bankruptcy court modified Stanley's bankruptcy plan with "no future modifications." Indeed, Stanley never disclosed to the bankruptcy court the FMLA claims (or the FMLA lawsuit he filed against his former employer) until 16 months later, and only after the employer's lawyer questioned him about it at his deposition in his FMLA interference lawsuit.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 2, 2022
Mere "discouragement" is enough to state an FMLA interference claim, federal appeals court holds
"You've taken serious amounts of FMLA … don't take any more FMLA. If you do so, you will be disciplined."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, July 22, 2021
Coronavirus Update 7–22–2021: How the ADA and FMLA apply to Covid long haulers
The risks associated with Covid-19 aren't limited to the 625,000 Americans this virus has killed or the 2.3 million hospitalizations. One of the greatest risks comes from the fact that nearly one-third of Covid-19 patients will develop long-haul symptoms that long outlast the actual infection, and further that nearly one-third of all Covid long haulers had asymptomatic Covid cases. These long-haul symptoms can include fatigue, respiratory problems, "brain fog," body aches and muscle pain, abdominal issues, and loss of smell and taste. They can be quite debilitating and last for months or longer.
If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, May 3, 2021
Does President Biden have the political juice to make paid family and medical leave a reality?
For the past couple of administrations, it's a presidential rite of passage—unveiling a plan to provide paid family and medical leave to American workers. Last Wednesday night, President Biden released his proposal as part of his $1.8 trillion American Families Plan.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 4, 2021
No, you don’t get to keep your paid leave after your position is eliminated
The headline reads, "Trump aides made a late request to Team Biden to extend their parental leave. They said no." Here's the story:
[A] number of ex-Trump political officials … lost their parental leave when Joe Biden was sworn into office. It's a byproduct of the field they're in: Their boss (the president) may have been the one let go, but his departure has meant that they, too, lose their jobs and benefits. Still, they argue that the Biden administration should have honored their leave by keeping them on payroll until the end of it — a request that … the Biden transition did not grant.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 4, 2021
Coronavirus Update 1-4-2021: DOL approves telemedicine visits to establish a serious health condition under the FMLA
With the COVID-19 pandemic closing health-care-provider offices or severely limiting patient access, many have turned to telehealth to remotely obtain healthcare from the safety of their homes. The question arose, however, whether these remote visits would qualify as "treatment" under the FMLA's qualifying definition of a "serious health condition," which under the FMLA's regulations requires an "in-person visit to a health care provider," and does not include "a phone call, letter, email, or text message."
While you were celebrating your December holidays, the Department of Labor issued a Field Assistance Bulletin [pdf] addressing this issue.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Saturday, March 14, 2020
BREAKING: House passes broad coronavirus stimulus and relief package, including paid sick and family leave
It’s been 12 days since I asked if coronavirus the thing that will finally make paid family and sick leave a national reality. Twelve days in the COVID-19 news cycle feels like 12 years. Regardless, I am happy to report that in the very early hours of this morning, by a bipartisan vote of 363-40, the House passed the Families First Coronavirus Response Act, sweeping legislation that will provide myriad emergency relief to businesses and individuals, including paid family and sick leave.
Shortly after the House passed the bill, President Trump tweeted his support, virtually assuring a swift run through the Senate and his signature.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 9, 2020
Is an employee entitled to FMLA leave to care for the children of a family member with coronavirus?
Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.
The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).
Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 3, 2020
Can an employer require an employee with a serious health condition to take FMLA leave?
Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.
The answer is a qualified “yes.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 18, 2020
7th Circuit concludes employer should have advised injured employee of FMLA rights even after employee went AWOL
Buddy Phillips injured his ribs while playing with his grandchildren. Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.
He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 22, 2020
Dream on — lawsuit by Aerosmith drummer highlights the legal risk of "fitness for duty" exams
Joey Kramer, Aerosmith's founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend's honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend's Grammys.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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