The dog ate my sanity -- employee's strange behavior may place company on notice of "serious health condition"

Employees' excuses for missing work come in all shapes and sizes. For Beverly Stevenson, it was her fear of dogs that kept her away from her warehouse job at Hyre Electric Company, and her strange behavior on the job that, according to the 7th Circuit, should have put her employer on notice of a serious health condition for FMLA leave.

On February 9, 2004, a stray dog somehow entered the workplace and approached Stevenson. She immediately felt physical and mental symptoms, including a headache, a rush of blood to her head, a tightening of her neck and back, and agitation. When her supervisor entered the work area, Stevenson began screaming obscenities that animals shouldn't be there. After three or four minutes she calmed down, but two hours later she informed a manager she was feeling ill and had to go home. She did not visit a doctor until the next day, when she advised her supervisor that she wasn't feeling well and would be absent from work. On February 11, Stevenson returned to work to confront Hyre's president, screaming at him about dogs being in the building. After that encounter, Stevenson told her supervisor that she could not work and left. Stevenson continued to call in sick until February 17, when she only worked for a few hours, only to leave after feeling harassed despite having her workplace moved to accommodate her fear of stray animals. On February 23 she attempted to return to work with a doctor's note excusing at least some of her past absences, but she could not enter the building as the locks had been changed to keep her out. Hyre would also not accept her doctor's note. Stevenson's union asked the company for an explanation as to why the note was insufficient, and the doctor offered to supply whatever information the company sought. Hyre never responded to either request, and instead on March 9 notified Stevenson that she had been terminated effective February 25.

Typically, an employee is not entitled to the protections of the FMLA unless and until that employee notifies the employer of the need for the leave, either 30 days in advance or as soon as practicable if shorter. While it is the employee's burden to notify the employer, typically the employee just has to provide the employer with enough information to show that the employee believes there is an entitlement to FMLA leave. It then becomes the employer's responsibility to request additional information from the employee's doctor to confirm the FMLA entitlement.

Stevenson never told Hyre that she was missing work because of an illness. The 7th Circuit, however, found that Stevenson's case should go to a jury because a factual question existed as to whether Hyre had constructive notice of her need for FMLA leave. Constructive notice of a serious health condition may be established by either clear abnormalities in the employee's behavior or the employee's inability to communicate. The court concluded that one could find that Stevenson's behavior was so bizarre that it amounted to constructive notice of the need for leave. It was undisputed that she was a "model employee" prior to the dog incident on February 9. The company president acknowledged that her behavior on February 9, 11, and 17 was so strange that he had to change the locks: "We were concerned about Beverly coming into the workplace.... I was concerned about having a very angry employee." Thus, Hyre should have been on notice of Stevenson's need for FMLA leave:

Lengthy encounters of yelling and swearing at one's superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employees calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre notice of a serious mental health condition.

Companies have to be proactive with employees' needs for FMLA leave. If an FMLA-eligible employee has been absent from work, and you think it might be related to a medical reason, you act at your company's peril if you do not at least try to determine if the absences qualify for FMLA protection. After all, having to cover for an employee for 12 weeks is much less painful that having to litigate a termination for 12 months or more.

Stevenson v. Hyre Electric Co. is available for download here.

Gap sweatshop allegations highlights child labor issues

I heard about the Gap sweatshop allegations (Gap: Report of kids' sweatshop "deeply disturbing") on the news while I was eating dinner last night. After watching video of children at work in a New Delhi sweatshop, Gap President Marka Hansen said, "It's deeply, deeply disturbing to all of us. I feel violated and I feel very upset and angry with our vendor and the subcontractor who made this very, very, very unwise decision."

In American workplaces, the Fair Labor Standards Act sets wage, hours worked, and safety requirements for individuals under age 18 . The rules vary depending upon the age of the minor, the job involved, and the state in which the work is performed. In Ohio, for example, children under 16 are permitted only to work 3 hours per school day and 18 hours per school week. Their hours are capped at 8 hours per day and 40 hours per week otherwise. Generally, those same children cannot work later than 7 p.m. (or 9 p.m. 6/1 through 9/1 and during school holidays of 5 days or more). 16 and 17-year-olds have no limits on how many hours they can work per day or per week, but they are prohibited from working after 11 p.m. and before 7 a.m. on schooldays (or 6 a.m. if not working the night before). The FLSA also prohibits anyone under 18 from working a job that is considered hazardous or involves the operation of a motor vehicle. As one could imagine, the Department of Labor takes child labor violations very seriously, and the consequences for violations can be severe, not to mention the potential PR nightmare. Just ask Marka Hansen.

OCRC approves new maternity leave regulations

As predicted, today's Cleveland Plain Dealer reports that the Ohio Civil Rights Commission approved its new maternity rules that guarantee 12 weeks of leave for all pregnant employees of companies with 4 or more employees. 1 of the OCRC's 5 members voted against the new regulations. The proposal will now go the legislature's Joint Committee on Agency Rule Review, which will consider whether the OCRC overstepped its authority in enacting the new regulations. That Committee has no power to approve or reject the rules, but can merely recommend to the legislature that it invalidate improperly enacted rules. The new rules could go into effect by year's end, although business groups vow to lobby the legislature to invalidate them. Interestingly, yesterday's Plain Dealer reported that the rules did not spark much response from businesses prior to its approval.

For prior posts on this issue, see OCRC to vote on new maternity leave regulations, OCRC to vote on new maternity leave regulations - part 2, and The more things change the more they stay the same.

Racial harassment lawsuits on the rise

It seems like every day I'm reporting on another class of employment lawsuits that are multiplying in number. Today's victim is the racial harassment suit. Today's USA Today (Racial harassment lawsuits at work go up) is reporting that the EEOC has seen the number of racial harassment complaints filed with it more than double in the past 17 years, from 3,075 in 1991 to about 7,000 in 2007. Thursday, the EEOC settled for $290,000 a racial harassment complaint brought against a Gulf of Mexico oil driller stemming from the display of nooses (Global Drilling Company to pay $290,000 for Racial Harassment, Including Nooses). The USA Today article also discusses EEOC settlements involving allegations of the display of racial graffiti and the use of racial epithets. Hangman's nooses is also a popular allegation in these cases. Indeed, since 2001, the EEOC has filed more than 30 lawsuits involving the display of nooses at work, some of which resulting in 7-figure settlements.

While workplace harassment is typically thought of in terms of sexual harassment, a hostile work environment on the basis of any protected characteristic is just as unlawful. Racial harassment, national origin harassment, age-based harassment, disability harassment, religious harassment, and harassment based on any other protected class are all equally as unlawful as sexual harassment. All workplace harassment policies should make clear that all of these forms of harassment are illegal, and will be treated the same by management. Companies' annual or semiannual harassment training should not just be limited to sexual harassment, but should include all forms of unlawful harassment. This EEOC serves as a good tickler to remind all companies to check their harassment policies to ensure that it covers all types of harassment, and to update where necessary.

What else I'm reading this week #2

For those of you who've been with me for some time, you'll notice that the blog went under a bit of a redesign this week. I've not only made it a little more reader friendly, but I've also added some new functionality to the site. On the sidebar to the right you'll see a box that lists all of the items I've shared this week from my Google Reader account. Each Friday, I'm going to archive each week's links in a post. So without further fanfare, here's what I've been reading this week (in no particular order):

Please stop annoying me, from The Evil HR Lady, giving advice on the issue of unpaid time as a wage and hour violation.

CBO estimates minimal costs necessary to enforce ENDA, from Workplace Horizons, reporting that the Congressional Budget Office estimates a 5% increase in EEOC filings if the current version of the Employment Non-Discrimination Act of 2007 (which excludes gender identity as a protected class) in enacted.

Family friendly, also from The Evil HR Lady, discussing the difficult choices employees must make between job and family.

AT&T to pay $756,000 for religious bias against Jehovah's Witnesses, from the EEOC, reporting on a failure to accommodate religious discrimination case.

In-house counsel's biggest headache, from Gruntled Employees, noting that labor and employment cases are the biggest worry for in-house counsel.

Facebook, Employees and HR - You Can't Handle the Truth..., from The HR Capitalist, discussing the need for companies to be careful before fully embracing social networking sites for employee communication.

OCRC to vote on new maternity leave regulations - part 2

One short follow-up to this morning's post on the new OCRC maternity leave regulations. The USA Today article I linked to this morning talked about the rise of the "sandwich generation" — people who care both for children and an aging relative. This notion will have even greater meaning in Ohio if all employers have to provide 12 weeks of maternity leave to all employees. Take for example a pregnant employee who lawfully takes 12 weeks of FMLA leave during a year to care for a sick parent, and then in the same year gives birth. That employee would be entitled to an additional 12 weeks of leave under Ohio's new proposed regulations. Thus, pregnant women would receive double benefits. One modification to the hypothetical, however, illustrates the potential fundamental unfairness in the new regulations. Instead of the employee being a pregnant woman, let's suppose the employee is a man with a pregnant wife. If that man takes 12 weeks of leave to care for a sick parent, he would not be able to take even 1 day of extra leave for the birth of his child, and his employer would coldly have the right to terminate him in that situation. Everyone should be concerned about the potential disparities in implementing OAC 4112-5-05(G), both in its current and amended forms, and the potential for sex discrimination claims brought by male employees who are denied the same benefits as their female counterparts.

OCRC to vote on new maternity leave regulations

Over the summer I reported on the Ohio Civil Rights Commission's proposed amendments to its pregnancy discrimination regulations, Ohio Administrative Code 4112-5-05(G), which would extend 12 weeks of guaranteed unpaid maternity leave virtually to all employees, not just those covered by the FMLA. See The more things change the more they stay the same, and OCRC appears to bend on pregnancy leave regulations. Now, after three months of inactivity on this issue, it appears that the OCRC is finally ready to act on these regulations. Today's Cleveland Plain Dealer is reporting that the OCRC will consider the new regulations today (see Ohio may expand maternity leave rights to all moms. As reported, the change would supersede the federal FMLA by extending guaranteed pregnancy leave to Ohio employees no matter how long they've worked at a company, to part-time workers, and to anyone at a company with at least four employees. As revealed by the text of the proposed amendment, the OCRC resisted lobbying by business groups to lessen the amount of available leave from 12 weeks to 8 weeks. It is expected that the OCRC will approve these regulations. The final step before they would go into effect is approval by a legislative subcommittee, which would probably happen fairly quickly. Once enacted, Ohio would join 18 other states that have granted maternity leave beyond that guaranteed by the FMLA.

Coincidentally, today's USA Today has an article on the growth of family responsibility discrimination ("FRD") lawsuits. While I still believe that the OCRC's new regulations do not substantively change the law, they will increase awareness about the rights of employees of small business to pregnancy-related leaves of absence. That awareness certainly will not do anything to slow down the trend of FRD lawsuits against Ohio businesses. Now is as good a time as any for all companies to review their maternity leave policies to ensure that they provide for 12 weeks of leave, so that new policies can be put in place if needed.