Winning the battle but losing the war in FMLA cases

The FMLA allows for two different theories of recovery—interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee’s use of a protected FMLA right causes an employer’s adverse action. These claims are mutually exclusive, and a terminated employee can succeed on one and fail on the other.

Consider, for example, Platt v. Lamrite West, Inc. (N.D. Ohio 8/17/11). Platt involved an employee terminated for violating an employer’s call-off policy after making a request for FMLA leave. The court denied the employer’s motion for summary judgment on the employee’s interference claim, but granted summary judgment and dismissed the employee’s retaliation claim.

On the interference claim, the court concluded that there was a genuine issue of fact as to whether the employer’s FMLA paperwork modified the call-in procedure. At the same time, however, the court concluded that there was no issue of fact on the employee’s retaliation claim:

He … would have been terminated for violating this policy even if he had not requested FMLA leave…. Between 2007 and 2010, 56 warehouse employees were terminated by Defendant for failing to comply with Defendant’s attendance policies. Like Plaintiff, these former employees were terminated for failing to report to work or notify Defendant for three consecutive work days. Unlike Plaintiff, these former employees did not seek FMLA leave, further supporting Defendant’s proffered non-retaliatory grounds for termination.

As the court pointed out, holding the employee to the call-off policy “may create an interference claim, [but] it does not give rise to a retaliation claim.” Thus, you can terminate an employee for exercising an FMLA right without retaliating against him or her, so long as you do not treat the employee any differently than any other employee. However, that termination still might give rise to a claim under FMLA for interfering with the exercise of FMLA rights. In other words, you might win the retaliation battle against a terminated employee, but ultimately lose the FMLA war.

Some social media stats to get you thinking this week

This time next week, I’ll be in Denver to speak about workplace social media issues at the annual Meritas Litigation and Labor & Employment Conference. In preparing for my session, I came across the following statistics (taken from a recent survey conducted by DLA Piper):

Of employees who use social media sites for personal use:

• 39% have befriended a colleague or business contact on Facebook or LinkedIn
• 14% have posted a status update or tweeted about their work
• 22% have posted a status update or tweeted about a work colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information

Of employers:

• 21% have taken disciplinary action because of information an employee has posted about a co-worker
• 25% have taken disciplinary action because of information an employee has posted about their activities at work
• 31% have taken disciplinary action because of information an employee has posted about the organization
• 30% have taken disciplinary action because of the level of an employee’s social media use at work

Despite these results, only 14% of employers reported having a social media policy that regulated the use of social media outside the workplace. In other words, there is still a huge divide between employees’ use of social media and employers’ regulation of that use.

Employers, you may think it is common sense that your employees not Tweet or Facebook about the goings-on in your workplace. These numbers say otherwise. Doesn’t it make sense to have a formal, written policy to guide the discussion, set expectations, and bridge this gap?

WIRTW #197 (the “NSFW” edition)

The following video has been making the rounds this week. It’s called Popsicle, and cleverly asked this question at the end: “Is this sexual harassment?” The video is probably NSFW, so watch with caution.

This ad is not the first to use this kind of imagery. Remember this Burger King ad from a couple of years ago?

Here’s the rest of what I read this week:

Discrimination

• EEOC’s Reduced Budget Likely To Impact Employees and Employers – from The Proactive Employer Blog
• Employers, don't try to dismiss that lawsuit before its time – from Robin Shea’s Employment and Labor Insider
• The EEOC: Now Marketing Lawsuits against a Company Near You – from Kris Dunn, The HR Capitalist
• Can An Employer Ask a Job Applicant …The Nuts & Bolts of Legal Preemployment Inquiries – from Michigan Employment Law Advisor
• Maternity leave, the Pregnancy Discrimination Act and summary judgment – from Work Matters
• Giving Aid to the Enemy: The Healthy Workplace Act Explained – from Michael Fox’s Jottings By An Employer’s Lawyer
• 4th Circuit Holds Religious Organizations Exempt from Title VII In “Modest Garb” Case – from Laconic Law Blog
• Court Case Gives Employers Clarity on Disciplining Disabled Workers for Misconduct – from Workplace Insights

Social Media & Workplace Technology

• Whoops. Google Engineer Accidentally Makes His “Plus Sucks” Rant Public – from Kashmir Hill’s The Not-So Private Parts
• Legal Issues Surrounding Social Media Background Checks – from Labor Employment Law Blog
• NLRB Social Media Memo Part IV - Overly Broad Policies – from Phil Miles’s Lawffice Space
• Labor negotiations now a social process – from The Human Race Horses
• Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases – from Labor Relations Update

HR & Employee Relations

• We Recommend Against the Asparagus – from Lawyerist
• What Are My Favorite “Work” Songs On My iPod? Steve Jobs Knows – from Dan Schwartz’s Connecticut Employment Law Blog
• Millennials Turn Corporate Culture on its Head – from i-Sight Investigation Software Blog
• The Importance of a Release – from Rob Radcliff’s Smooth Transitions
• What To Do When An Employee Doesn't Celebrate Halloween – from Workplace Diva
• Is Employment a Civil Right? – from Compensation Cafe
• Abortion at Work – from The Cynical Girl
• Should Companies Use Credit Checks to Screen Job Applicants? – from Time

Wage & Hour

• Doggone-it. Must employers give leave to employees with hurt pets? – from Eric Meyer’s The Employer Handbook Blog
• The Dark, Ugly Side of Using Unpaid Interns (under the FLSA) – from SmartHR
• President And CEO Personally Liable For Wage And Hour Violations In Torres v. Gristede’s Operating Corp. – from Overtime Lawyer Blog
• Judge Rules Ohio-based Cascom Employees Misclassified as Independent Contractors – from Fair Labor Standards Act Law
• Court: Cable Installers Employees, Not Independent Contractors – from Wage & Hour Insights

Labor Relations

• A Public Menage A Trois - Joining The NLRB’s Public Posting Party – from Social Media Employment Law Blog
• Ladies’ Local 321 – from Main Street Gazette
• Union Free You Tube Video: Organizer Ties OWS to SEIU – from Labor Relations Institute

Social media and privacy cannot coexist

During my appearance on The Sound of Ideas to discuss social media in the workplace, NLRB General Counsel Lafe Solomon made an interesting point about the accessibility of employees’ social media by employers. The question arose as to whether employees can short-circuit workplace problems by locking employers out via available privacy settings on sites such as Facebook. Lafe observed that in every social media case brought to the NLRB, the employer learned of the offending social media posts not by its own online discovery, but by a co-worker who narced. Privacy settings on Facebook can keep non-friends from accessing information, but they cannot prevent someone to whom you have granted access from turning that information over.

Here’s the snippet of my back and forth with Lafe Solomon discussing this issue during yesterday’s show:

Employees need to disavow themselves of the notion that there is such a thing as “privacy” in social media. After all, the word “social” is half of the equation. These are not conversations we are having with ourselves. People keep diaries for those matters they really want to keep private; they should not be broadcasting those private thoughts for the world to see. Once you put information out there, you have to assume that your employer will discover it.

Using social media is as much an exercise in reputational management as it is in the sharing of information. Until employees fully understand and embrace the implications of the sociability of these tools, the NLRB will remain busy deciding the merits of terminations that result from social media’s irresponsible use by those seeking the NLRB’s protection.

They always said I had a face for radio

This morning’s appearance on WCPN—discussing social media and the workplace—could not have gone better. It was an engaging hour, capped off with a rare opportunity to challenge NLRB General Counsel Lafe Solomon on some of his agency’s positions on social media. All told, I thought Mr. Solomon came across (more or less) reasonably, even if I think the positions of his agency and him on the issue of social media as protected concerted activity are (more or less) unreasonable.

For those who missed my appearance, or cannot wait to relive the hour, here are the links:

• www.ideastream.org/soi/entry/42863: to stream from WCPN’s website
• itunes.apple.com/us/podcast/social-media-and-the-workplace/id210936081?i=100923395: to download as a podcast for your iDevice
• www.OhioChannel.org/MediaLibrary/Media.aspx?fileId=132970: for the video stream

Or, you can simply watch right here:

I’ll be on NPR tomorrow morning talking about social media

Tomorrow morning, from 9 – 10 a.m., I’ll be a guest on WCPN’s The Sound of Ideas (the “best radio show” in Ohio, according to The Cleveland Press Club). I’ll be discussing workplace social media and labor/employment law. One of the other guests will be Lafe Solomon, General Counsel of the National Labor Relations Board, so it should be an interesting and spirited conversation.

You can listen/watch live at www.ideastream.org/soi. Following the live show, a recording will be available at iTunes and from The Ohio Channel.

The phone numbers, should you want to call with a question or comment during the show, are 216-578-0903 or 866-578-0903.

The Employer Bill of Rights

---

The Employer Bill of Rights is now available as a book. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations.

You can purchase your copy in a variety of formats:

• Amazon – paperback
• Amazon – Kindle
• Barnes & Noble – paperback
• eBook

---

According to Liz Ryan, writing at Businessweek.com. “Actual employee rights in the U.S. are fairly limited.” She posits that because “it’s legal to make hiring and termination decisions for random (nondiscriminatory) reasons” (such as an employee’s favorite sports team), employees need a “Bill of Rights” to protect themselves.

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees:

• Title VII: race, color, religion, sex, and national origin
• PDA: pregnancy
• ADEA: age
• ADA and ADAAA: disability
• GINA: genetic information
• USERRA: returning veterans
• FMLA: family leave
• FLSA: minimum wage, overtime, and child labor
• ERISA: benefits
• COBRA: continuing health coverage
• OSHA: safety
• NLRA: labor
• FCRA: background checks
• WARN: plant closings

The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer Bill of Rights:

1. The Right to Hire on Qualifications: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire.
2. The Right to Fire on Performance: We also want the right to fire without the fear of an expensive lawsuit when you fail to perform. Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
3. The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.
4. The Right for You to Follow Our Work Rules: We do not distribute handbooks and other policies because we like destroying trees. We do so because we think every relationship needs to be guided by a set of expectations under which each side is supposed to operate. All we ask is that you live up to your end of the bargain and accept the consequences if you don’t.
5. The Right to Be Told When There Is a Problem: We cannot fix workplace problems if the first we hear about them is when a lawsuit is served. Help us help you by letting us know if you think you’re being discriminated against, retaliated against, paid incorrectly, or otherwise being treated unfairly. If you’re right, we’ll fix it. Right or wrong, we won’t hold it against you.
6. The Right to Receive an Honest Day’s Work: When you are at work, we ask that you reasonably dedicate yourself to the tasks at hand. It’s only fair; after all, we are paying you for your services.
7. The Right to Have Our Say Before You Form a Union: We recognize your right as employees to form a union if that’s the collective choice of your majority. Just hear us out and let us have our say on why it’s not all it’s cracked up to be and may not be in your best interest.
8. The Right to Reasonable Notice: We understand that certain laws (the ADA and the FMLA, for example) provide employees rights to certain accommodations, which we follow. In return, we merely ask that when possible, you not wait until the last minute to request an accommodation or a leave of absence. It wreaks havoc with our scheduling and operations.
9. The Right to Be Treated With Respect: Businesses need respect too. We expect that you will demonstrate that respect to us and your fellow employees by showing up on time, not passing off to others that which you can (and should) do yourself, not waiting until the last minute to schedule your vacation, and generally treating others as you would want to be treated.
10. The Right to Confidentiality: We expect you will not share internal workplace issues with the outside world, whether they are our trade secrets or other proprietary information, or the day-to-day goings-on inside our company.