Repeated calls from supervisor to employee on medical leave violates FMLA

What is the line between checking on a sick employee and harassing a sick employee to return to work early? Terwilliger v. Howard Mem. Hosp. (W.D. Ark. 1/27/2011) draws that line in a case that concluded that the employee was entitled to present her FMLA interference claim to a jury.

Regina Terwilliger worked as a housekeeper for Howard Memorial Hospital. On November 14, 2008, Terwilliger completed and submitted an FMLA request for leave for necessary back surgery. After the hospital approved her request, Terwilliger took her leave, underwent surgery, and returned to work after release by her doctor. During her recovery, and before her return to work, Terwilliger claimed that her supervisor, Kim Howard, contacted her weekly to inquire when she was going to return to work. During one phone call, Terwilliger claimed that she asked Howard if her job was in jeopardy, to which Howard replied that she should return to work as soon as possible. According to Terwilliger, she felt pressured by Howard’s calls to return to work early.

Terwilliger claimed that the hospital interfered with her statutory right to 12 weeks of FMLA leave by pressuring her to return to work after only 11 weeks. The district court agreed that a jury should decide that claim.

Interference includes discouraging an employee from using FMLA leave, … as well as manipulation by a covered employer to avoid responsibilities under FMLA…. To prove interference, an employee must show that the employer denied his or her benefits to which he or she was entitled under the FMLA….

Defendants argue that, because Plaintiff returned to work after her doctor had released her to return to work without any restrictions, she cannot claim that she was denied a benefit that she was entitled to under the FMLA. Defendants, however, are overlooking the fact that an interference claim includes the “chill theory.” … Interference occurs when an employer’s action deters an employee’s exercise of FMLA rights…. Here, Plaintiff had a right not to be discouraged from taking FMLA leave…. [T]he Court finds that a reasonable jury could conclude that Defendants interfered with Plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.

It should go without saying that employers should not harass employees into returning early from FMLA leaves. But, this case is a good excuse to remind businesses that the FMLA has specific procedures in place to check on employees during FMLA leaves.

• If the employee’s medical certification indicates that the minimum duration of the serious health condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification.

• In all cases, an employer may request a recertification of a medical condition once every 6 months, even if the original certification is for a longer period of time.

• Otherwise, an employer may request recertification no more often than every 30 days, and only in connection with an absence by the employee, unless the employee requests a leave extension, the circumstances described by the previous certification have changed significantly, or the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

In all cases, employers should avoid personal contact to check on the return-to-work status of an employee on an FMLA leave, and follow these timelines if a recertification of a serious health condition is necessary.

[Hat tip: FMLA Blog and FMLA Insights]

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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.

The Internet is a dangerous place for human resources

The Internet is a fabulous resource for businesses. For example, I could conduct a Google search for “social media policy” and fine some wonderful results, including an online database of 164 real-world examples. Because of the Internet’s easy access to information, it creates a strong temptation for businesses to do-it-themselves when it comes to policies and forms.

Not all websites, however, are created equal. Just because you find something on the Internet does not mean that its legal. Take, for example, Pre Employment Medical Questionnaire, which has at least 8 different questions that violate the ADA:

• Do you smoke?
• Do you drink alcohol?
• Are you under any medication?
• Are you under any medical supervision?
• Have you ever suffered from an ailment that resulted in an absence from work?
• Please indicate the total number of sick days you took out in the past year?
• Have you ever been admitted in hospital?
• Do you suffer from any medical condition that could hamper your sight, hearing, coordination or other sensory ability?

(For good measure, it also asks for employees’ dates of birth, which would constitute unlawful age discrimination, and height and weight, which could have a disparate impact based on sex).

The website says, “During the recruitment process most companies require to find out the medical history of all prospective employees.” Trust me, the only companies that ask for this information from prospective employees are those that want to find themselves on the losing end of a disability discrimination lawsuit. When searching the Internet for DIY policies and forms, do yourself and your business a favor and run them by employment counsel before using them. One 15 minute consultation could save you years in court and hundreds of thousands of dollars in legal bills.

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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.

Oh my god, they're really alive!

We found this when we returned to our little guy's room after a walk. We love the peds staff at the Clinic.

Patrice O’Neal on sexual harassment (NSFW)

Today is President’s Day (no, this post is not a dated Bill Clinton joke). The courts are closed. The banks are closed. There’s no mail. And, we’re still in the hospital with our son (who has stabilized), in need of a laugh or two. I saw this over the weekend on Comedy Central. Because the topic fits and it made me laugh really hard, I thought I’d share (with tongue planted firmly in cheek).

The video is definitely NSFW, so if you are working today you might want to wait until you get home tonight to press play. And if you’re easily offended you might just want to to skip the video altogether. Patrice is about as un-PC as they come. You’ve been warned.

Enjoy. I’m back tomorrow with more serious content about the risks of using the Internet as the source for your HR policies and forms.

Jokes.com
Patrice O'Neal - Harassment Discussion
comedians.comedycentral.com
Jokes Joke of the Day Funny Jokes

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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 #165 (the medical update edition)

So we’re on day 9 at the Cleveland Clinic, the only medical facility in the world where it’s actually a good think to say you’re at the Clinic. Our little guy seems to have stabilized. The juices flowing out of his stomach are ever so slightly less in volume and lighter in color, which suggests that the very large hematoma that is blocking one-third, and maybe as much as two-thirds or even all, of his small bowel, is starting to slowly subside. This is not to say that we are headed home anytime soon. He’ll need to be off the NG tube for at least 24 hours, and able to keep drink down without vomiting before they’ll even think about discharging him. It could be anywhere from another week to three weeks before he can again sleep in his Buzz Lightyear bed. In the meantime, we continue to watch his blood counts, which have been low. There was talk of a transfusion the past couple of days, but I think we’ve dodged that bullet. And, if there’s a bright side (which I usually try to find), we’re hoping the nourishment he’s getting through his PICC line will fatten him up some, since he’s a little guy to begin with.

Thank you everyone for your thoughts and prayers this past week. It means more than I can communicate.

Here’s what I read this week (trust me, I’ve had a lot of downtime staring at the hospital room walls):

Social Media & Workplace Technology

• Small Firms, Big Lawyers: Social Media and Breast Implants – from Jay Shepherd at Above The Law

• Using Social Media in Union Organizing – from Workplace Prof Blog

• Overlawyering and Social Media – from Legal Developments In Non-Competition Agreements

• Facebook Business Etiquette: Why You Shouldn’t Friend Your Boss – from CBS MoneyWatch

• A Teachable Moment: Why Dissing Students on Your Blog Isn’t a Good Idea – from TLNT

• Employees and Social Media: Empower and Reward them, or Fear Them – from Social Media Today

• Insurance For Social Media Users? – from Social Media Employment Law Blog

• Social Media Posting Gets Firefighter Fired – from Alabama HR Law

• Yes, you CAN discipline employees who abuse social media – from The Employer Handbook Blog

• Could Your Firm’s E-Mail Policy Run Afoul of the Federal Wiretap Act? – from EDD Blog Online

• Eighth Circuit declares RAZR a computer under federal law – from Engadget Mobile

• Juror Study Shows More of a “BlackBerry Effect” Than a “CSI Effect” – from Ride The Lightning

Discrimination

• Screening Out Unemployed Job Seekers? You May Be Breaking the Law – from the Evil HR Lady, writing at BNET

• The Cases Companies Are Watching: The Cat’s Paw Cases – from Employment & the Law

• Harassment in the hot tub: even bizarre cases require a measured response – from Donna Seale’s Human Rights in the Workplace

• Supreme Court Upholds “Relative” Retaliation Claim; Avoids Setting “Bright Line” Rule — Part II, Assessing Thompson Decision’s Significance – from George's Employment Blawg

• New EEOC Budgetary Request To Congress Portends Increased Governmental Litigation In 2011/2012 – from Workplace Class Action Litigation

• Examining Questions of Disparate Impact – from Stephanie Thomas’s Proactive Employer Blog

Wage & Hour

• New Bill Would Raise Minimum Wage for Tipped Employees – from Maryland Employment Law Developments

• Did Employer's Constant Phone Calls to Employee Violate FMLA Rights? – from Wisconsin Employment & Labor Law Blog

• Did supervisor's offhand remark amount to approval of FMLA leave? – from Stephen Meyer’s HR Cafe

• The WARN Act – Ignorance of the Law is Not a Defense! – from CPEhr

• Fog Still Shrouds The Bridge To Justice – from Wage and Hour Laws Blog

• Ninth Circuit Issues Strong Rebuke to Department of Labor, Upholds Outside Sales Exemption for Pharmaceutical Sales Representatives – from Wage & Hour Counsel

• 9th Cir.: Notwithstanding DOL’s Position Otherwise, Pharmaceutical Reps (PSRs) Are “Outside Sales” Exempt – from Overtime Law Blog

• You Learn Something New Everyday – from Michael Haberman’s Omega HR Solutions

• Dick’s Sporting Goods Settles Wage And Hour Violation Case For $15 Million – from Overtime Lawyer Blog

• Wage Hour Issues For New Companies: A Puzzlement – from Wage & Hour - Development & Highlights

Labor Relations

• NFL v. Players Association - NLRB Complaint – from Philip Miles’s Lawffice Space

• NLRB Continues Aggressive Campaign – from Employer Law Report

• The Battle Over Public Sector Collective Bargaining Begins – from Vorys on Labor

• House Subcommittee Addresses Direction of the NLRB – from Washington D.C. Employment Law Update

• Amendment to Defund National Labor Relations Board Fails House Floor Vote – from Seth Borden’s Labor Relations Today

HR and Employee Relations 

• Smoke & Mirrors - Beware of the “Newest Trend” on Smoker-Free Workplaces in Connecticut – from Daniel Schwartz’s Connecticut Employment Law Blog

• More Employers Resorting to No-Nicotine Hiring Policies – from World of Work

• Health-Care Employers Who Don’t Hire Smokers – from Molly DiBianca’s Delaware Employment Law Blog

• Do You Still Hire Smokers? – from You’re the Boss Blog

• Top Ten Employment Laws You Think Exist – That Don’t – from Screw You Guys, I'm Going Home

• Fred Has a Very Bad Day (Termination Checklist and Guide) – from World of Work

• Lack of A Background Check May Leave An Employer Liable For Negligent Hiring – from Minnesota Labor & Employment Law Blog

• Employees In A Pickle Over Office Lunches – from Workplace Diva

• Alleged Rapist Case Another Black Eye for CORI Criminal Background Check – from employeescreenIQ Blog

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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.

Out of work? Out of luck. EEOC hold meeting on use of employment status as screening tool

As I reported yesterday, the EEOC held its public meeting on the use of the exclusion of unemployed persons from applicant pools, a practice which it calls "emerging." As I expected, the EEOC is using this meeting to explore whether the use of employment status has a disparate impact on certain racial and ethnic minorities, such as African-Americans, Hispanics, and Native Americans.

According to the testimony of Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, "any practice which disadvantages currently unemployed workers relative to similar employed workers will likely have a disproportionate negative impact on people of color." The Commission also heard testimony from Colorado School of Law Profession Helen Norton, who considered various defenses employers could raise under the anti-discrimination laws to a claim of disparate impact. Professor Norton considered possible claims of job-relatedness and business necessity, such as current employment as a signal of job performance, current employment as a proxy for relevant experience, and as a tool to reduce the number of applications received. With little explanation, she rejected each possible defense.

The EEOC did take testimony from two advocates for employers, James Urban, an attorney with Jones Day, and Fernan Cepero, Vice President for Human Resources The YMCA of Greater Rochester and representative of the Society for Human Resource Management. Mr. Urban relied on his experience to cast doubt on the legitimacy of this issue as a real problem:

At end, under the widespread practice that I have seen employers follow, the simple fact that the applicant is or was unemployed does not operate to disqualify the applicant. The reason the employer may decline to hire the applicant will be the underlying reason the applicant became unemployed, and typically it is job-related. In sum, it is my experience and belief that there is not a widespread practice among employers to disqualify applicants on the basis of unemployment. I submit to you that the anecdotal examples contained in a media reports over the past year or so regarding such circumstances are, when viewed in the broad scope, isolated incidents.

Mr. Cepero elaborated further, challenging that the blanket exclusion of the unemployed is not a good HR practice, and runs contrary to the best interest of companies that simply look to fill jobs with the best people available:

Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed. Our members recognize that any type of blanket exclusion raises concerns under Title VII. What’s more exclusionary policies are poor business practices because they prevent organizations from accessing some of the best available knowledge, skills and abilities in a given labor force.

This public meeting was fascinating. The EEOC is looking for systemic discrimination in new and unique places. Just because something might be bad business, however, does not mean it is discriminatory. Nevertheless, employers who use blanket screening tools such as employment status should be aware that the EEOC may be watching. Employers would be wise to document the job-relatedness and business necessity for all screening tools to be prepared if the EEOC appears on your doorstep.

For more information about yesterday's meeting, the EEOC has published the bios and written testimony of each of its presenters.

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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.

EEOC to examine the treatment of unemployed job seekers

Later this morning, the EEOC will hold a public meeting to examine employers’ practices of excluding currently unemployed persons from applicant pools. Presumably, the EEOC is considering whether using current unemployment status as an applicant screening tool has a disparate impact based on race.

As a management-side attorney, my natural inclination is to write this story off as the EEOC looking for another way to hamstring the ability of companies to use their best judgment in making personnel decisions. Then, I considered the following data, provided by the Center for Economic and Policy Research:

If the unemployment rate for blacks is nearly double that for whites, and Hispanics nearly 50% higher, can one argue in good faith that a disparate impact does not exist? I am not a statistician, but the impact of this data looks significant to me. Is the real question, then, not whether unemployment status has a disparate impact, but whether using current employment status is job-related for the position in question and consistent with business necessity? I can envision lots of legitimate uses for employment status as a screening factor for lots of types of jobs.

I am very curious to the read the speakers’ comments from today’s EEOC meeting to understand their thoughts on the legitimacy of using this criterion as a screening factor. I am sure I will have more to share tomorrow after digesting the notes from today’s EEOC meeting.

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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.