The FMLA and the honest belief rule: monitoring leave of absence abuse

Last week, I discussed the bounds of the “honest belief rule” as a defense to a discrimination claim. Yesterday, in Seeger v. Cincinnati Bell Telephone Co. [pdf], the 6th Circuit used that same defense to affirm the termination of an employee who claimed retaliation under the FMLA. This case, though, has wider implications for employer who use surveillance to monitor the legitimacy of their employees’ medical leaves.

Tom Seeger took an approved leave of absence under the FMLA for a herniated lumbar disc. Four days after Seeger’s doctor certified him as completely unable to work—including any light duty, which entitled him to receive paid disability leave under the employer’s policy—two of Seeger’s co-workers saw him walking, seemingly unimpaired, at the Cincinnati Oktoberfest. One of the employees, who knew Seeger was collecting paid disability leave, reported his sighting to CBT’s human resources manager.

CBT conducted an investigation, which consisted of obtaining sworn statements from the two employees who saw Seeger, reviewing Seeger’s medical records, disability file, and employment history, and consulting with CBT’s internal medical manager. Based on the inconsistency between Seeger’s reported medical condition and his reported behavior at Oktoberfest, CBT terminated Seeger for “disability fraud” (over-reporting his symptoms to avoid light-duty and continue collecting disability payments).

Relying on the “honest belief rule,” the 6th Circuit concluded that CBT’s termination decision did not violate the FMLA:

CBT made a “reasonably informed and considered decision” before it terminated him, and Seeger has failed to show that CBT’s decisionmaking process was “unworthy of credence.” … The determinative question is not whether Seeger actually committed fraud, but whether CBT reasonably and honestly believed that he did….

CBT never disputed that Seeger suffered from a herniated disc…. Seeger’s ability to walk unaided for ten blocks and remain at the crowded festival for ninety minutes understandably raised a red flag for CBT, giving it reason to suspect that Seeger was misrepresenting his medical condition in an attempt to defraud CBT’s paid-leave policy.

This case has wide implications. There are many laws that entitle employees to take time off from work: FMLA, ADA (disability), PDA (pregnancy), Title VII (religious accommodation), and state workers’ compensation laws, to name a few. Many companies use surveillance to curb leave of absence abuses. I am not suggesting that you surveil every employee who takes leave from your workplace. Without a good faith belief supporting the surveillance, a court could conclude that your actions are unlawful.

If, however, you have a good faith reason to test the legitimacy of an employee’s leave via surveillance or other monitoring, Seeger's invocation of the honest belief rule will offer you some protection if you misinterpret the results of your investigation.

I’ll be guesting at Lunch with DriveThruHR, tomorrow at 1 pm

Tomorrow, I’ll be spending my lunch with DriveThruHR, human resource’s #1 daily radio show. You can listen live at 1 pm EDT at www.drivethruhr.com, which will also archive the show for future listening.

I’m looking forward to my half-hour with hosts Bryan Wempen and William Tincup, talking about HR and whatever else keeps me up at night with corporate organizations. Questions or comments during the show? You can call in at (347) 996-5600, or tweet using #dthr or @drivethruhr.

New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

On the New York Times’s Motherlode blog, KJ Dell’Antonia discusses her belief that we need another law to protect pregnant women in the workplace:

Pregnancy is specifically not covered under the Americans With Disabilities Act, which requires that employers provide reasonable accommodations to disabled employees who need them to do their jobs…. But to have a healthy pregnancy, women must make adjustments—call them accommodations—for the baby they’re carrying…. Pregnant women are protected by the federal Pregnancy Discrimination Act, but protection against discrimination does not require accommodation. Sometimes equal treatment is not enough to allow a woman to stay on the job—and no one benefits from pregnant women being forced to choose between her doctor’s advice and her supervisor’s demands.

Ms. Dell’Antonia then lends her support to a nascent piece of federal legislation, The Pregnant Workers Fairness Act.

I take issue with Ms. Dell’Antonia’s central premise that the Pregnancy Discrimination Act does not require accommodations for pregnant workers. The PDA requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

We do not need legislation to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. The PDA already implicitly allows for these accommodations. I’m not taking a stand against the rights of pregnant women (which I support). I am, however, taking a stand against duplicative legislation, regardless of the soundness of the policy or the worthiness of the beneficiary.

Revenge is a dish best never served at all in the workplace

Section 215(a)(3) of the Fair Labor Standards Act makes it unlawful for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint … related to” wages paid or hours worked. It has been over a year since the U.S. Supreme Court held—in Kasten v. Saint-Gobain Performance Plastics—that this anti-retaliation provision covers oral complaints. The Court, however, left open the issue of whether an intracompany complaint suffices as protected activity under the FLSA.

Federal courts are starting to sort out the answer to this important question. And, it doesn’t look good for employers. For example, in Minor v. Bostwick Laboratories, Inc., the notoriously conservative 4th Circuit held that “the remedial purpose of the statute requires that it protect from retaliation employees who file intracompany complaints.”

The court highlighted some the policy considerations behind this ruling:

The protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation—and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.

While Kasten left open the issue of whether internal complaints suffice as protected activity under the FLSA, lower federal courts are quickly closing this door. Any time you, as an employer, are thinking about exacting revenge on an employee who even arguably engaged in protected activity, think twice, or three times, or as many times as is necessary to dissuade you of your inclination to retaliate. Courts are increasingly resistant to giving free passes to employers who retaliate. If you think you can rely on a legal technicality as a defense (e.g., Kasten), think again. The deck is stacked against you.

Stop, thief! Polygraph testing and workplace theft

The Employee Polygraph Protection Act regulates (and restricts) the use of polygraph tests in the workplace. For example, it prohibits an employer from disclosing to anyone an employee’s polygraph results without the employee’s consent, and also prohibits an employer from taking an adverse action against an employee based on the results of a polygraph.

Bass v. Wendy’s of Downtown, Inc. (N.D. Ohio 5/1/12) discusses the limits of both of these prohibitions. More importantly, however, this case raises a more practical question about the use of polygraphs in the workplace.

In 2007, a cash deposit went missing from Wendy’s. As part of its investigation, Wendy's asked Donald Bass to submit to a polygraph examination, which he failed. Despite the failed test, Bass continued to work for Wendy’s as a part-time employee. More than two years later, Wendy’s passed over Bass for a promotion to General Manager. A few months later, it fired him for inappropriately touching a female employee.

Bass claimed that Wendy’s violated the EPPA by: 1) disclosing the results of his 2007 polygraph to the Ohio Civil Rights Commission in support of its position that the store did not discriminate against him; and 2) relying on the 2007 polygraph to deny him the promotion.

The court dismissed both claims:

• The court dismissed the wrongful disclosure claim because Bass could not articulate how he had been damaged by the statement to the OCRC.
• The court dismissed the failure-to-promote claim because Wendy’s would have denied him the position even if he had not failed the polygraph. 

Here’s my question. If Bass failed a polygraph in 2007, why was he around years later to grope a female employee and claim discrimination? If you are going to jump through all of the legal hoops necessary to use a polygraph to confirm an employee’s theft, use the results. As this case shows, nothing good comes from retaining an employee who steals from you.

WIRTW #224 (the “5 is the magic number” edition)

On May 9, 2007, I launched the Ohio Employer’s Law Blog. It’s unfathomable to me that I’ve been writing this blog for five years. Thanks to all of my readers for a great half-decade (which I’m celebrating a few days early). Here’s to many, many more.

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

Discrimination

• Why you should stop attending diversity training — from Evil HR Lady, Suzanne Lucas
• 6 Steps to Avoid Family Responsibilities Discrimination Claims — from i-Sight Investigation Software Blog
• More office romances; more anti-harassment training — from Eric Meyer’s The Employer Handbook Blog
• “Hey, Jackie, can we talk?” The EEOC’s Enforcement Guidance on criminal background information — from Robin Shea’s Employment and Labor Insider
• Fired For Giving Boss A Kidney? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Why You Should Sign Out Of Facebook Before Handing Your Phone Over To Best Buy — from Kashmir Hill’s The Not-So Private Parts
• Can “Friends” Be Trade Secrets? — from Unfair Competition & Trade Secrets Counsel
• Maryland’s Facebook Username and Password Law is a Win For Employers, Employees, and Job Applicants — from Shear on Social Media Law
• SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests — from Phil Miles’s Lawffice Space
• Survey on employer use of social network sites in recruiting and screening — from George’s Employment Blawg
• What is privacy? As job-seekers are judged by their tweets and Facebook posts, uncertainty abounds — from Lini Kadaba at philly.com

HR & Employee Relations

• Five Suggestions for Improving Employee Handbooks — from Mike Haberman’s Omega HR Solutions
• Dear Evil Skippy: Should You Say “Fired” or “Terminated”? — from Evil Skippy at Work
• How to Terminate an Employee - Baseball Bat Optional — from Jason Shinn’s Michigan Employment Law Advisor
• 50 Shades of Grey and Human Resources — from Mike VanDervort’s The Human Race Horses
• We Are Stressssssssssssssssssed — from Mark Toth’s Manpower Employment Blawg
• Federal Court: FCRA Does Not Apply To Independent Contractor Relationships — from Employer Law Report
• Why Everyone at Your Company Should Speak (A Little) English — from Harvard Business Review
• Lack of Jury Trials Isn’t Bad for Employers — from Rob Radcliff’s Smooth Transitions
• The Trade Secrets Dilemma – Sue and Disclose — from Trade Secrets Blog
• As Ozzie Guillen Learned the Hard Way, There’s No Free Speech in Corporate America — from Donna Ballman’s Screw You Guys, I'm Going Home

Wage & Hour

• Internships: The Good, The Bad, The Ones that Violate The Law — from Dan Schwartz’s Connecticut Employment Law Blog
• Wal-Mart, DOL Reach Agreement for $5M+ Settlement Over FLSA Violations — from Smart HR Manager
• Ready for your COBRA Audit? — from Todd Stanton’s Intown Employer

Labor Relations

• NLRB Quickie Election Rule Now In Effect; Here’s What It Means — from TLNT
• Responding to Outrageous Employee Conduct in the Wake of the NLRB’s Jimmy John’s Decision — from Minnesota Employer

The NLRB’s dangerous course: arbitration waivers and protected concerted activity

The NLRB has announced the filing of a complaint against 24 Hour Fitness USA, Inc., claiming that the company’s requirement that its employees submit all employment-related disputes to individual arbitration violated federal labor law.

According to the NLRB, 24 Hour Fitness, which is non-unionized, requires employees to agree, in writing and as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations, and instead resolve all employment dispute in single-employee arbitrations. The company permits employees to opt-out of this waiver, but only by submitting a company-drafted written form within 30 days of signing the original waiver.

Earlier this year—in D. R. Horton, Inc. (currently on appeal)—the NLRB held that an employer violated the federal labor law by maintaining, as a condition of employment, a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial. In 24 Hour Fitness, the Board seeks to extend D. R. Horton to include the 30-day opt-out. As is the case with social media, the NLRB is expanding its attacks on workplace policies in non-unionized workplaces.

I’ll give NLRB Acting General Counsel Lafe Solomon credit—he has taken an agency that had been relegated to near-obsolescence and made it very relevant. Less than 7 percent of private-sector workers belong to a labor union. By shifting its enforcement priorities to issues surrounding protected concerted activity, the NLRB has extended its reach to the 93 percent of non-unionized workers. It has also made itself the go-to agency for employees fired for complaining about work.

This focus by the Board on protected concerted activity is only going to increase. According to Mr. Solomon’s latest memo [pdf] (discussing his attendance at the Midwinter meeting of the Practice and Procedure Committee of the ABA Labor and Employment Law Section), the NLRB will be adding a page to its website “dedicated to Protected Concerted Activity matters.” In other words, businesses need to prepare themselves for increased knowledge by their employees on these issues, in addition to increased enforcement efforts by the NLRB.

Mr. Solomon and I will be sharing the dais at the NLRB Region 8 Labor Law conference. I’m kicking the conference off by moderating a panel on social media. Mr. Solomon is the lunch speaker. His topic is titled, The NLRB Today: Maintaining an Even Keel While the Storm Rages. I am very curious to hear how he describes today’s NLRB as an “even keel.” The SS NLRB leans a little too much to the port side for my (and most businesses’)taste.