Honest belief wins out over dishonest conduct in FMLA retaliation case

The facts of Weimer v. Honda of Am. (6th Cir. 12/14/09) [pdf] are straight forward. James Weimer requested FMLA leave from Honda after injuring his head at work, which Honda approved. After Weimer returned to work, two of his neighbors reported to Honda that it had seen Weimer build a new front porch on his home while on leave. Honda conducted an investigation, which included surveillance video. During the investigation, Weimer admitted \to working on his porch during his FMLA leave. Honda terminated him for misrepresenting his need for medical leave.

The 6th Circuit held that the jury, which found in Honda’s favor, was properly instructed that Honda could prevail if it was wrong as to its stated reason for discharge, but its belief was honestly held:

Weimer asserts that the only way the jury should have been able to decide against him was to conclude that he had deliberately lied to the physicians to go on FMLA leave, and he did not actually have a serious health condition. If Weimer engaged in personal behavior at home that was beyond the job-related restrictions given to him by his physicians, he argues he could do so at his own risk….

When considering whether Honda terminated Weimer for a legitimate reason, the jury was instructed that the issue was not so much whether Weimer actually lied, but rather whether Honda reasonably and honestly believed that Weimer lied….

Honda presented evidence of its investigation into Weimer’s alleged misrepresentations, including the video surveillance tape, interviews with eye-witnesses who saw Weimer working on his porch, and who reported that Weimer admitted that he came back to work because he realized he had been “busted,” and interviews with Weimer himself. Weimer’s own testimony at trial included contradictory statements about his activities that would lead a reasonable fact finder to question his credibility. There was sufficient evidence for the jury to conclude that Honda reasonably relied on the facts before it at the time its decision to terminate Weimer was made.

The takeaway for employers from the Weimer case is to make sure that all reasons in support of a termination are documented. Because Honda could prove that Weimer violated its conduct standards, it became irrelevant whether he had actually lied about his need for FMLA leave. All that matter is that Honda could back-up its conclusion by its investigation. If you can verify the legitimacy of a termination rationale, a court is unlikely to second-guess you, even if your judgment turns out to be incorrect after the fact.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #108

The big news of the week is the U.S. Supreme Court’s decision to hear the appeal in Quon v. Arch Wireless. The issue in that case is whether a police officer had an expectation of privacy in text messages sent from his employer-owned mobile device. The court of appeals ruled for the employee earlier this year. While this case involves the constitutional privacy rights of public employees, I hold out a glimmer of hope that the Supremes will give broader insight into the rights of all employers to keep tabs on how employees are using their technology while on-the-clock. My fellow bloggers share their thoughts on this very interesting case:

• Dennis Westlind at World of Work: Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers.

• Michael Fox’s Jottings By An Employer’s Lawyer: Labor and Employment Comes (Slowly?) Into the Electronic World.

• Washington DC Employment Law Update: Supreme Court Review of Quon May Provide Important Guidance for Private Employers.

• Philip Miles’s Lawffice Space: Text Message Privacy Hits SCOTUS.

• Workplace Privacy Counsel: Supreme Court Review of Quon May Provide Important Guidance for Private Employers.

• Colorado Employment Law: Supreme Court to Review Employee Privacy in Text Messages.

• Ross Runkel’s LawMemo: Text message privacy at the Supreme Court.

• Jeffrey Hirsch at the Workplace Prof Blog: Supreme Court Grants Cert in Quon Privacy Case.

On to other news of the week.

Employee Terminations

• How NOT to Call in Sick – via Mark Toth’s Manpower Employment Blawg.

• It’s NOT Just a Fantasy: Company Fires Employees for Running Fantasy Football League, For Real – from Dan Schwartz’s Connecticut Employment Law.

Wage & Hour

• Lawyers See Easy Money in Wage-and-Hour Litigation – at the HR Daily Advisor.

• Just Because an Employee is Exempt Doesn't Mean They Can't Be Paid Extra – via Overtime Advisor.

• US DOL Finds 4000 Nurses at SSM Health Center Owed One Million Dollars Over Missed Lunches – from Wage & Hour – Developments & Highlights.

• House-Approved Omnibus Spending Bill Would Significantly Boost Funding for DOL, NLRB, EEOC – by Washington DC Employment Law Update.

Discrimination

• Fight over passage of the ENDA (Employment Non-Discrimination Act) delayed until 2010 – via Sindy Warren at the Warren & Hays Blog.

• Attendance at work is an essential function of the job in most instances – from Employment Law Matters.

• EEOC Continues to Attack "No-Rehire" Policies – by New York Labor and Employment Law Report.

Social Media

• Too Much Information: Social Media Pose Risks For Employers And Employees Alike – from Hunton Labor & Employment Perspectives.

Harassment

• An Employer Cannot be an Ostrich in Response to Complaints – by Tom Crane’s San Antonio Employment Law Blog.

• $1,260,000 settles harassment claims – via Ross Runkel’s LawMemo.

• Weird Sexual Harassment Cases In the News – by Teresa Cheek at the Delaware Employment Law Blog.

• Harassment Is All About the Threshold – from Kris Dunn, The HR Capitalist.

• Why we should put filters on our work computers – via the Evil HR Lady.

Top 10…

• …Weirdest Work Stories for 2009 – linked by Minnesota Labor & Employment Law Blog.

• …Worst phrases to use at the office – from CNN.com.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

AT&T sued for a BILLION dollars in a wage and hour dispute

MSNBC reports that multiple class actions have been filed against AT&T claiming that it misclassified as exempt all of its first-level managers and unlawfully deprived them of overtime pay. The lawsuits seek $1 BILLION (that’s nine zeros) in damages.

Rush Nigut’s Rush on Business has done an excellent job spotlighting the critical issues raised by these types of claims:

Naturally that kind of pie in the sky number might leave one to think, “It’s never going to happen to me, my business is much smaller and I won’t be a target.” But when you look at the fact that experts believe approximately 70 percent of businesses are out of compliance with wage and hour laws, you shouldn't be quick to shrug off the prospects of a process server knocking on your door. All it takes is one disgruntled employee … and you could find yourself in the middle of a wage and hour dispute.

Click on through to Rush’s post to read his six tips to avoid wage and hour lawsuits.

I’ve also written extensively on the dangers wage and hour compliance poses for employers:

• Is the sky falling? The reality of wage and hour lawsuits.
• Study of American working conditions presents opportunity for employers to tune up legal compliance.
• Department of Labor to step up enforcement; employers should step up self-audits.
• Make a list and check it twice – FLSA exemptions.
• Wal-Mart ordered to pay $140.5 million on overtime claim.
• Fortune Small Business Magazine: The ticking time bomb of overtime.
• Department of Labor investigations highlight important wage and hour compliance issues.
• Use a wage and hour audit to proactively head off claims.
• Wage and hour litigation hits the big time.
• Department of Labor investigations highlight important wage and hour compliance issues.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

How to properly terminate an at-risk employee

Employees often believe that an employee’s exercise of a protected right acts as a shield to protect the employee from termination. And often they are right. That shield, however, does not insulate an employee’s  poor performance. For example, take King v. Aultman Health Foundation (Stark Cty. Ct. App. 11/30/09) [pdf].

Brianne King took three different medical leaves during her employment, plus intermittent leave under the FMLA. Following her leaves, and during her intermittent leave, she had a documented history of poor attendance:

1. Medical leave for surgery: Mar. 24 – May 5, 2003

• Feb. 2004: written warning for attendance.
• Three-day suspension for missing work from May 9 – May 12, 2004.
• May 14, 2004: written warning that her next call-off in the next four months would result in termination.

2. Medical leave for surgery: June – Aug. 2004
3. Medical leave for surgery: Feb. 27 – May 16, 2005
4. Grant of intermittent FMLA leave: Oct. 2005

• Mar. 2006: verbal warning for tardiness.
• Aug. 2006: written warning for tardiness.
• Sept. 2006: two-day suspension without pay, plus six-month probationary period, for tardiness.
• March 19, 2007: written “last chance” suspension for four tardies between Feb. 24 and Mar. 19.
• Apr. 12, 2007: Tardy again.
• Apr. 21, 2007: Again warned that another attendance issue would result in termination.
• May 8, 2007: Forgets she is scheduled to work and misses work.
• May 9, 2007: Resignation in lieu of termination.

The court of appeals upheld the trial court’s dismissal of King’s disability discrimination claim:

[King] has asserted that her inability to come to work in a timely fashion was caused by pain, nausea, fatigue, depression, and the continuing effects of her hysterectomy on her ability to care for herself. However, when [King] was confronted by her supervisors about being tardy, [she] did not ask for an accommodation for a disability, but rather offered various other reasons for her lack of punctuality. The undisputed evidence shows [King] was not terminated for her claimed disability, but rather for tardiness and poor work history. [King] was terminated due to a well-documented, poor attendance record.

The hospital prevailed in this lawsuit for three reasons:

1. King had serious attendance problems.
2. The hospital documented each and every attendance violation.
3. The hospital gave King no less than eight chances to correct her attendance problems before it asked her to resign.

I probably would have pulled the trigger sooner on the termination. Nevertheless, the fact that the hospital gave King a second, third, and even an eighth chance before it ended her employment served it well.

In disciplining an employee who has engaged in protected activity, ask yourself, “Will a judge or jury think that we gave this employee a full and fair opportunity to correct her behavior? Did she have notice that she would be terminated if her performance did not improve?” Unless you can answer yes to these questions, consider delaying the termination until you can.

Why you need a workplace technology policy

While doing some routine maintenance of its computer system, Butler Township discovered that members of its fire department – including part-time firefighter Ralph Bowman – had been accessing and downloading violent and sex-related files from the Internet on work time using Township computers. The computer records revealed that Bowman watched eight videos while at work. Seven of the videos were violent, military videos: Lions Eat Man, Hamas Militant Shot Killed, Felony Fights, Helicopter Crewman Execution, Sniper Shots, Guerillas Killed, and Terrorists Guerilla Killed. The other, called Best Girlfriend Ever, contained sexually explicit language, but was not pornographic.

The Township permitted its employees to use Township computers and other media for personal use during down time. The Township did not provide any guidance as to what types of computer usage were acceptable or appropriate, except for a Code of Ethics that instructed Township employees that they were “bound by the highest standards of morality” and should conduct themselves so as to not bring discredit to the Township.

The Township terminated Bowman for malfeasance in accessing and viewing “inappropriate materials” at the firehouse.

In Bowman v. Butler Township Bd. of Trustees (Montgomery Cty. 11/20/09) [pdf], the court of appeals reversed the termination. It reasoned that because the Code of Ethics was vague as to what computer use was permitted, and because there was no other policy to guide Bowman regarding acceptable computer use during his down time, the Township could not use the Code of Ethics as a basis for termination.

This case is an excellent example of the need for employers have a technology policy that spells out, in sufficient detail, what is and what is not acceptable use of an employer’s equipment. As Bowman points out, failing to have such a policy could leave you without a remedy against an employee who misuses technology.

Come back Tuesday when I’ll share some insights on what to think about when drafting a workplace technology policy.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Recertification of FMLA leave

Asking an employee taking leave under the FMLA to recertify the need for the leave is a powerful tool employers can use to curb FMLA abuse. However, there are specific rules employers must follow to ensure that they are not the one accused of abuse.

1. 30-day rule.

Generally, an employer may request recertification no more often than once every 30 days, and only in connection with an absence by the employee. An employer can never ask for or require a second or third opinion on recertification. It must wait for the next 30-day period to request another recertification.

2. More than 30 days.

If the employee’s medical certification shows that the minimum duration of the condition is more than 30 days, an employer must wait for that minimum duration to expire before requesting a recertification.

Regardless of the minimum duration, an employer may always request a recertification of a medical condition at least once every six months in connection with an employee’s absence.

3. Less than 30 days. 

An employer may request recertification in less than 30 days if:

• The employee requests an extension of a leave; or
• Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
• The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification (e.g., an employee with a knee injury playing on the company softball team). 

4. Timing.

An employer must give the employee at least 15 days to provide the recertification. The employee must meet that deadline to keep his or her FMLA leave, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

5. Content.

The employer may ask for the same information when obtaining recertification as permitted for the original certification. The employee has the same obligations to participate and cooperate in the recertification process as in the initial certification process. Importantly, as part of the information allowed to be obtained on recertification, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

6. Expense.

An employer can require that the employee bear the cost of the recertification.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Truck drivers with positive drug tests should not file lawsuits … period.

Consider these facts:

• A city garbage truck driver is injured on the job.
• When he goes to the ER for treatment, a blood test reveals cocaine in his system.
• Upon returning to work following a workers’ compensation leave of absence, he agreed to attend Narcotics Anonymous meetings as a condition of his employment.
• He did not attend the meetings.
• When it was discovered that he was trying to surreptitiously tape record his follow-up conference with the city, he received a five-day suspension.

How do you think the subsequent law suit filed by this employee against the city turned out? Garofolo v. City of Fairview Park (8th Dist. 12/10/09) [PDF] has the details. The short answer (surprise) is that the employee lost:

Garofolo offers no legal basis for his argument that appellees should have ignored the disclosure of his positive drug test and that he should not have been subjected to the substance abuse program or other measures taken by appellees. We find the argument that the appellees should not have acted upon the information to be disingenuous in light of Garofolo’s safety-sensitive position and DOT requirements. Indeed, once provided with the information, Fairview Park had a clear interest in creating a safe working environment.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.