Certification harassment? 6th Circuit rejects claim under FMLA

Have you ever heard of certification harassment? Me neither, until I read Smith v. City of Niles [pdf] last week.

According to Leddrew Smith, from 2002 to 2009, the city asked him to provide six separate medical certifications for his 2001 back injury. Those repeated requests, per Smith, exceeded the FMLA’s limits, and therefore interfered with his right to medical leave.

Here is what the 6th Circuit said about Smith’s claim:

He is right about one thing: An unreasonable demand for recertification may interfere with FMLA rights. He is wrong about another: The City’s requests all fit comfortably within the regulatory boundaries.

The FMLA has a maze of regulations that define when an employer can ask for a recertification of a serious health condition. Critical to this case is the rule that permits an employer to require a recertification any time that the “circumstances described by the previous certification have changed significantly.”

In this case, the court relied upon Smith’s changed circumstances to conclude that the city had not harassed him with its recertification requests.

• In one instance, Smith took six days of medical leave, instead of the two days estimated in his prior certification. Per the 6th Circuit, “If an employee desires more time off than described in the prior certification, the employer may require updated information from a physician. That is all that happened.”
• In another instance, Smith sought to change his work restrictions to accommodate a new physical limitation. Per the 6th Circuit, “The City responded with a request for recertification because the new limitations were not listed on the previous certification. That is the epitome of a reasonable recertification request.”

In other words, following the rules does not equate to harassment. Now if we can all just figure out those annoying rules…

Who is a supervisor under Title VII? (Vance v. Ball St. Univ.)

On Monday, the Supreme Court heard oral argument in one of the key employment cases it will hear this term—Vance v. Ball St. Univ. This case asks whether one can qualify as a supervisor under Title VII if one is given any authority to direct and oversee another’s daily work, or if supervisory status is limited to those who have the power to hire, fire, demote, promote, transfer, or discipline others.

This distinction is an important one. Under Title VII, employers are vicariously liable for actionable harassment committed by supervisors that results in a tangible employment action.

The appellate court in Vance drew a bright line, and concluded that “supervisor” means “direct supervisor,” with the power to directly affect the terms and conditions of the plaintiff’s employment via hiring, firing, demoting, promoting, transferring, or disciplining; the mere authority to direct an employee’s daily activities is not enough.

Yet, in the Supreme Court, not even the employer, who won in the court of appeals, could argue that the 7th Circuit got the standard right. At oral argument, the employer argued that the bright line drawn by the appellate court is too rigid:

[S]omeone who does control virtually all aspects of one’s schedule but yet lacks the authority to hire, fire, or demote, nevertheless still would be qualified….

By way of example, the employer’s counsel referred to the following hypothetical posed by Justice Kagan:

There’s a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary. What would the Seventh Circuit say about that situation?

Even though no one argued in support of the bright-line rule articulated by the 7th Circuit, I predict that the 7th Circuit’s rule will carry the day when the Court issues its opinion sometime next year. The Justices were clearly looking for a bright line to guide future cases, and appear to be wary of adopting a middle-of-the-road approach that will only serve to muddle the issue in future cases. If we are lining up Justices to get aboard one line or the other, the 7th Circuit’s stricter approach should garner more votes than the loosey-goosey standard the plaintiff sought.

For any additional background on this case, visit SCOTUSblog. The oral argument transcript is available from the Supreme Court’s website [pdf].

It’s a Blawg 100 Three-Peat

Edward James Olmos once said, “I didn’t get into this business to get awards.” And while that may be true, it certainly is nice to be recognized.

Yesterday afternoon, the ABA Journal announced its annual list of the top 100 legal blogs, which it calls the Blawg 100. I was fortunate enough to be part of this list in 2010 and 2011, and equally fortunate that the ABA Journal recognized me again this year as part of its 6th annual list.

The labor & employment blawgosphere is among the richest, and I am pleased that I am sharing this honor with five fellow bloggers, each of whom I consider a friend.

• Dan Schwartz’s Connecticut Employment Law Blog
• Molly DiBianca’s Delaware Employment Law Blog
• Phil Miles’s Lawffice Space
• Jeff Nowak’s FMLA Insights
• Donna Ballman’s Screw You Guys, I’m Going Home (which wins for the best title among the group, hands down)

(For what it’s worth, this list is short by two. Next year, I hope that Eric Meyer’s The Employer Handbook Blog and Robin Shea’s Employment & Labor Insider join the list.)

Now comes the part where I graciously and unapologetically ask for your help. Between now and December 21, you have the opportunity to vote for your favorite blawg. All you need to do is go to www.abajournal.com/blawg100, register, and vote. You’ll find my blog under the “Labor & Employment” category. Thank you for your support.

Congratulations to all of the winners, and thank you to the ABA Journal for, once again, deeming my little project worthy of your recognition. It is much appreciated.

Tomorrow, I start my march toward a four-peat, with a post on the Supreme Court’s oral argument in Vance v. Ball State Univ., which will (maybe) answer the important question of who qualifies as a supervisor under Title VII.

When is confidential medical information NOT confidential?

The ADA requires that employers treat employee medical information obtained from "medical examinations and inquiries … as a confidential medical record." In EEOC v. Thrivent Financial for Lutherans, the 7th Circuit recently decided the extent to which that confidentiality requirements applies when an employee volunteers medical information to an employer.

Gary Messier worked for Trivent as a business analyst, and during his first four months of employment developed a reputation for letting his employer know when he would be absent from work. When he failed to report to work one day, his supervisor emailed looking for a report and explanation. In response, Messier sent an email detailing his long battle with migraine headaches.

Messier quit one month later, but had trouble finding a new job. Whe three jobs fell through after a reference check, he hired a company to conduct a fake reference check for him. In response, his former supervisor at Trivent said that Messier "has medical conditions where he gets migraines."


Based on that statement, the EEOC brought suit on Messier's behalf for a violation of the ADA's confidentiality requirements.

In affirming the district court's dismissal of the lawsuit, the 7th Circuit examined the plain language of the ADA.

The EEOC argued that the ADA's confidentiality provisions protect all employee medical information revealed through "job-related" inquiries.

The 7th Circuit disagreed:

The subject matter discussed in the body of section (d) confirms that the word "inquiries" does not refer to all generalized inquiries, but instead refers only to medical inquiries. The entire section is devoted to a discussion of a disabled employee's "medical record," "medical condition or history," "medical files," and medical "treatment."

Instead, the Court concluded that the ADA's confidentiality requirements only apply to medical information provided by an employee in response to a medical examination (not an issue in this case) or a medical inquiry.

Because Trivent had not made a medical inquiry before Messier sent his email detailing his migraines, any disclosure it made did not violate the ADA.

[P]revious courts have required—at minimum—that the employer already knew something was wrong with the employee before initiating the interaction in order for that interaction to constitute a [protected] inquiry. There is no evidence in the record suggesting that Thrivent … should have inferred that Messier's absence on November 1, 2006 was due to a medical condition. There is no evidence in the record that Messier had been sickly during his first four months of employment. There is no evidence that Messier had experienced a headache at work during his first four months. For all Thrivent … knew, Messier's absence was just as likely due to a non-medical condition as it was due to a medical condition. Indeed, as Thrivent pointed out to the district court, "Messier could have had transportation problems, marital problems, weather-related problems, housing problems, criminal problems, motivational problems, a car or home accident, or perhaps he simply decided to quit his job…."

Thus, Thrivent was not required to treat the medical information that Messier sent in response to the email as a confidential medical record. Accordingly, Thrivent did not violate (and could not have violated) the ADA by revealing Messier's migraine condition to anyone, including to prospective employers.

While this case is a great holding for employers, businesses should still tread carefully when dealing with employee medical information. This area of the law remains risky waters in which companies swim.

Another reason not to ban social media on company time (hint … it’s the NLRB)

I’ve written before about the practical problems employers face when trying to ban employees from accessing social media at work.

Last week, an NLRB administrative law judge provided us another reason for employers not to implement workplace bans on social media—such a ban might be an unlawful infringement on employees’ rights to engage in protected concerted activity.

In Dish Network [pdf], the ALJ considered the following policy in the company’s employee handbook:

Unless you are specifically authorized to do so, you may not … Participate in these activities [Social Media—blogs, forums, wikis, social and professional networks] with DISH Network resources and/or on Company time.

The ALJ struck down the policy as an unreasonable restraint on the right of employees to engage in protected concerted activity:

The Social Media policy is unlawful…. [T]he policy banned employees from engaging in negative electronic discussion during “Company time.” The Board has found that equivalent rules, which ban union activities during “Company time” are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.I’ve written before about the logistical problems of workplace social media bans.

If you are going to consider banning social media in your workplace, the practical reasons far outweigh the legal issues (Dish Network notwithstanding). I call it the iPhone-ification of the American workforce. If most of your employees can take their smartphones out of their pockets to circumvent your policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?

Instead of legislating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the Internet, then address the performance problem. A slacking employee will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off.

When dealing with employment concerns, there are legal issues and there are business issues. Decisions cannot be made without considering both, and sometimes one must trump the other. In this case the legal issue and the business issue happen to jive. The legal issue, however, remains in flux, as the NLRB continues to grapple with the role of technology in the 21st century workplace. The business issue, though, dictates the employers think long and hard about implementing a policy they will struggle to enforce.

---

The blog is taking the rest of the week off. I’ll be back on Monday with fresh content. In the meantime, enjoy your holiday, and take a moment to say thank you to that and those for which you are grateful.

If you put up with bullies in your workplace, stop (before someone else makes you)

I came across an article on TLNT last week entitled, The 7 Ways Organizations Justify Bullying in The Workplace. According to the article, these are the seven most popular excuses companies make for workplace bullies:

• He just goes off from time to time; he means no harm.
• OK, I will ask him to apologize again.
• Ron’s skills are so valuable we can’t afford to lose him.
• I just had “another” conversation with Ron. He will be OK.
• It’s easier to keep him than to find a replacement.
• That’s just how Ron is. He is just passionate.
• He doesn’t mean any harm; he’s just under a lot of stress.

If you find yourself making these excuses for anyone in your organization, it’s to reevaluate the type of workplace you want to be.

And, it’s not because bullying is illegal. In fact, in many cases, it’s not. Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin…) bullying is probably lawful. As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be a “general civility code” for the American workforce. In layman’s terms, our laws allow people to be jerks to each other at work.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace. If you want state legislatures to pass workplace bullying legislation, then continue to ignore the issue in your business. If you want to be sued by every employee who is looked at funny or at whose direction a harsh word is uttered, then continue to tolerate abusive employees. If you want to lose well-performing, productive workers, then allow them to be pushed out the door by intolerable co-workers.

The reality is that if companies do not take this issue seriously, state legislators will. What can you do now to protect your workplace from a future of anti-bullying legislation?

1. Review current policies. Most handbooks already have policies and procedures in place that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. These policies are only as good as how they are enforced. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

In other words, take seriously bullying in your workplace. If you don’t state legislatures will, and you won’t like the results.

WIRTW #250 (the “Tickle Me Petraeus” edition)

What does Elmo have in common with a former four-star general? They both need refresher courses on the proper use of email.

• Former CIA chief David Petraeus resigned his post after an email chain revealed an extra-marital affair. Petraeus and his paramour are claimed to have set up Gmail accounts to communicate with each other.

• Kevin Clash, the voice of Elmo, is taking a leave of absence from Sesame Street amid now-retracted allegations that he engaged in a relationship with an underage teen. According to the Sesame Workshop, an investigation revealed that Clash “violated company policy regarding internet usage.” One of the offending work-sent emails: “I’m sorry that I keep talking about sex with you, it’s driving me insane.”

The lesson should be obvious, but apparently needs repeating—Think Before You Click. (Hey, that’s a good name for a book … or a Sesame Street skit).

For some other thoughts on these stories-of-the-week:

• Lessons from the David Petraeus scandal — from Work Matters
• General David Petraeus Not Very Good At Cyber Defense — from Kashmir Hill’s The Not-So Private Parts
• How CIA Director David Petraeus's Emails Were Traced (and How to Protect Yourself) — from Lifehacker
• David Petraeus, Mike Leach and the Art of the Investigation — from YourHRGuy

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

Discrimination

• What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred? — from Dan Schwartz’s Connecticut Employment Law Blog
• Two Pregnant Employee Terminations in Two Months Too Coincidental for Southern District of Ohio — from Employer Law Report
• EEOC scores another big hit against inflexible leave policies — from Employer Legal Advocate
• Transgender Bathroom Battles—Coming Soon to Your Workplace — from HR Daily Advisor
• Frequent Use Of The “N-Word” Does Not Create A Hostile Environment If Only Made In “Jest” — from Employment Discrimination Report
• Time For Your Sexual Holiday Party — from Social Media Employment Law Blog
• Word to the wise: Centralize ADA accommodations decision-making — from Warren & Associates Blog

Social Media & Workplace Technology

• Obama's re-election evokes ugly Facebook-racism from some employees — from Eric Meyer’s The Employer Handbook Blog
• Facebook Party Pics Doom FMLA Claim — from Phil Miles’s Lawffice Space
• Court Orders Broad Discovery of Class Members' Social Media, Text Messages & Email — from Electronic Discovery Law

HR & Employee Relations

• Why Ms. X Is Leaving BigLaw: Busy Mom Details Untenable Schedule in Departure Memo — from the ABA Journal
• An Overwhelmed Mother’s Departure Memo — from the New York Times Motherlode blog
• Today Show Report Highlights Room for Improvement — from Nick Fishman’s employeescreenIQ Blog
• Workplace Investigations: The Employee’s Lawyer’s Perspective — from WinWinHR
• My boss doesn’t understand that I have kids — from Evil HR Lady, Suzanne Lucas
• Employees Love It, But Does a 4-Day Workweek Work For Your Business? — from TLNT
• Smoking in the Boys’ Room: You’re Fired! — from Blogging4Jobs

Wage & Hour

• Independent Contractor Misclassification Should Remain Key Area of Concern for Employers — from Wage & Hour Defense Blog
• Starbucks Gets a Triple Shot of Damages as $14.1 Million Wage-and-Hour Award Upheld — from Smart HR Manager
• Are Employers Required to Compensate Employees for On-Call Time? — from Minnesota Employer
• 6th Cir. Affirms Dismissal of FLSA Gotcha Litigation — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims — from Jeff Nowak’s FMLA Insights

Labor Relations

• The NLRB will be active in the non union workplace and more visible to the public — from John Holmquist’s Michigan Employment Law Connection
• Mandatory Employment Arbitration Clauses: Clearing the Hurdles, Part II — from The Emplawyerologist

Until next week: