Do not force employees to work during FMLA leave

With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no.

When Tondalaya Evans, a pregnant payroll manager for Books-a-Million, requested FMLA paperwork for her impending September 1 due date, her employer told her that she “would not go on leave but would work while on maternity leave.” She protested, but was told that she had no choice because the "go-live" date for the new payroll system on which she had been working had been delayed until November. Evans gave birth on August 30, and immediately starting working (full-time, and with full pay) upon arriving home from the hospital with her baby on September 1. When she eventually returned to the office, she was transferred to a new position. Unhappy with the transfer, Evans quit and sued, claiming, among other things, FMLA interference.

The court concluded that requiring an employee to work (even for pay) in lieu of requested FMLA leave for which the employee was entitle to take violates the FMLA. In doing so, it rejected the employer’s argument that it could not have violated the FMLA because it paid Evans for her time off.

It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.

What lesson can employers learn from this case? Don’t suggest or require that an employee work during an FMLA-eligible leave (even if it’s paid). The purpose of the FMLA is to enable employees to take time off from work for certain qualifying medical and other reasons without from the encumbrance of work responsibilities and the fear of losing one’s job while away from work. Telling an employee that she cannot take an FMLA, but instead can (must?) work from home, undercuts both of these purposes. It both forbids an employee from taking time off, and puts the employee’s job at risk because of slipped performance as a result of divided attention. FMLA leave is federally guaranteed for a reason. Don’t mess with that reason by requiring work (albeit paid and at home) in lieu of bona fide leave of absence.

Apparently, “information security” is now an unfair labor practice

In Fresh & Easy Neighborhood Market (7/31/14) [pdf], the NLRB examined the following “Confidentiality and Information Security” policy:

We have an important duty to our customers and our employees to respect the information we hold about them and ensure it is protected and handled responsibly. The trust of our staff and customers is very important, so we take our obligations under relevant data protection and privacy laws very seriously. We should also regard all information concerning our business as an asset, which, like other important assets, has a value and needs to be suitably protected.

What does it mean for me? …

• Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained.

The Board concluded that this directive reasonably tends to chill employees in their Section 7 rights to engage in protected concerted activity:

We find … that employees would reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment…. In addition, the instruction to use information “only for the purpose for which it was obtained” reinforces the impression that the rule prohibits Section 7 activity, as the Respondent’s business purpose clearly does not include protected discussion of wages or working conditions with fellow employees, union representatives, or Board agents.

Here’s the problem with the Board’s  current application of the Section 7 “protected concerted” rules to employer policies. It presumes bad intent by the employer. The Board imagines a parade of horribles, and strikes down any policy on account of some hypothetical bad conduct by the employer.

Member Johnson picks up on these themes in his dissenting critique:

Of course, the relevant inquiry is whether employees would reasonably construe rules as restricting Section 7 activity, and not whether employers intended the rule to restrict Section 7 activity. But certainly, this fact does not support construing rules to presume a malicious intent on the part of the employer. An employer’s primary purpose in drafting employee handbooks and policies is not to stifle employee rights, but to attempt to comprehensively cover many topics, including compliance with other workplace statutes and policies that protect business interests and the workplace environment of its employees….

As an alternative approach, Member Johnson proposes giving the challenged rule a reasonable reading, instead of deconstructing it with an eye towards illegality.

I believe the best approach is to examine the overall context of a disputed rule—from the general purpose of the document in which the rule is contained, its introduction, its general sections and topics and accompanying explanatory texts, and finally, to the disputed rule and the text around it—to give a rule a reasonable reading.

While Member Johnson is 100% correct, his view is the minority view (at least for the next 30 months). Thus, employers would be prudent to carefully review all workplace policies in light of these gruesome standards, and seek the guidance of experienced labor counsel to draft or, at a minimum, review all handbooks and other workplace policies.

You might want to reconsider if you send your FMLA forms via regular mail

One of the very first things a lawyer learns in law school is the “mailbox rule.” This rule simply states that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed … that it reached its destination at the regular time, and was received by the person to whom it was addressed.” It gives the benefit of the doubt to the sender, based on the reliability of the U.S. Postal Service.

Well, it’s 2014, and at least one federal court of appeals is no longer enamored with the reliability of the U.S. Postal Service. In Lupyan v. Corinthian Colleges, Inc. (3d Cir. 8/5/15) [pdf], the 3rd Circuit Court of Appeals (which covers Pennsylvania, New Jersey, and Delaware), rejected the mailbox rule and ruled that its presumption does not apply when an employer sends FMLA forms via regular snail mail, and the employee, without any other support, denies that he or she received the forms in the mail.

Here are the facts. Lisa Lupyan, an instructor at Corinthian Colleges, took a personal leave of absence for depression. While out, she sent the school a completed FMLA medial certification supporting her leave. As a result, the employer converted the leave from “personal” leave to “FMLA” leave, and mailed, via regular U.S. mail, the appropriate FMLA forms designating her absences as such. When Lupyan attempted to return to work after 14 weeks, the employer told her that it had already terminated her because she had failed to return after her 12 weeks of FMLA had expired. 

The court concluded that because the employer could not prove that Lupyan had received the forms, she was entitled to a jury trial on her FMLA claims.

CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, there is no direct evidence of either receipt or non-receipt….  Accordinly, we hold that evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee’s positive denial of receipt, creating an issue of fact for the jury

More importantly, the court opined on the type of notice an employer should expect to provide in today’s modern age.

In this age of computerized communications and handheld devices, it is certainly not expecting too much to  require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as  important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.

What does this mean to your business? Stop sending FMLA notices by regular U.S. mail. Instead, use a method that enables you to prove delivery.

1. If you hand-deliver the notices to an employee, have the employee sign and date a receipt for the documents.
2. If you mail, send via a method that permit you to track delivery — whether it’s certified mail with a green card to return, or an express delivery service with a tracking number.
3. If you email, click the box on Outlook that will send a delivery notice upon receipt.

I was also planning to write a long dissertation on what this employer did wrong, how it failed to effectively communicate with the employee during and after her leave, and how a few simple phone calls could have avoided this entire mess. Then I read Jeff Nowak’s thoughts on his FMLA Insights blog, and decided I couldn’t say it any better:

I see such a lost opportunity here. Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave? … If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Am I correct? Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process. Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee. As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!

This decision also is a reminder of what not to do when FMLA leave ends. What else did the College do wrong?  First, it insisted that the employee return without restrictions…. Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.

WIRTW #331 (the “Rosie” edition)

According to a recent report jointly published by the Pew Research Center and the Imagining the Internet Center, almost half (48%) of technology experts believe that by 2025, robots or digital agents will substantially take over many jobs currently performed by humans. These same experts expressed concern that this displacement will lead to increases in income inequality, the unemployability of certain workers, and breakdowns in the social order.

So, readers, are we on the verge of Isaac Asimov’s I, Robot, or is this a pipe dream of sci-fi fanboys?

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

Discrimination

• Discrimination Lawsuits Aren’t Rorschach Tests— They Should Not Be Subject to Interpretation — from Jason Shinn’s Michigan Employment Law Advisor
• Ohio State “Victim” of Harassment Calls Investigation “Deeply Flawed” — from WinWinHR
• Pawnshops Charged in Title VII Harassment Suit — from Joe’s HR and Benefits Blog
• Areheart & Stein on the Disability/Employability Divide — from Workplace Prof Blog
• Wal-Mart: Or How Not to “Handicap” Relationships with Disabled Workers — from The Emplawyerologist
• Email, age discrimination, and conspiracy — from Technology for HR
• Lifting restrictions weigh down employees’ ADA claims — from EmployerLINC

Social Media & Workplace Technology

• Source: Facebook Is Building FB@Work — from TechCrunch
• Employee’s Discrimination Claim Can’t be Salvaged by Coworker’s Allegedly Inappropriate Facebook Post — from Technology & Marketing Law Blog
• Your USB Ports Are Not Safe — from Lawyerist
• Why Social Media is Important for Workplace Investigations and Security — from i-Sight Investigation Software Blog

HR & Employee Relations

• CEO Steps Down To Be A More Involved Dad — from Fathers, Work and Family
• Letting Someone Go With Dignity — from You’re the Boss Blog
• Non-Compete That’s Here Today But Gone Tomorrow – Beware The ‎Unintended Consequences Of An “Integration Clause”‎ — from Suits by Suits
• Shawk & Awe In Non-Compete Enforcement? — from Smooth Transitions
• Drug-Free Workplaces In The Era Of Medical And/or Legal Marijuana Use — from The Employment Brief
• All You Need Is Employment Law — from EntertainHR
• Shuffleboard, Early Bird Specials, and … Whistleblowing? — from Employment Matters Blog

Wage & Hour

• Do Camp Counselors and Baby Sitters Have to be Paid Minimum Wage? — from Dan Schwartz’s Connecticut Employment Law Blog
• What Overtime Violations Are Lurking in Your Timekeeping System? — from HR Daily Advisor
• Defeating Conditional Certification Motions in FLSA Collective Actions — from Wage & Hour - Development & Highlights
• Here’s the wrong way to deliver FMLA notices to employees — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• NLRB Ratifies Actions Affected by Noel Canning Ruling — from Law.com
• Does Your Handbook Need Help? — Why All Employers Need to Be Aware of the NLRB’s Ever Increasing Scrutiny of Employee Handbooks — from Employment Law Lookout

More on anticipatory pregnancy discrimination

Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job, but that the employer pulled the termination five weeks too early.

That post garnered myriad comments (many of them unkind). Several opined that the case was one of clear pregnancy discrimination. One questioned why the FMLA did not protect this employee. And another called me inhuman, suggested I lack a moral compass, and questioned how I sleep at night.

Given all of the questions raised, I thought it best to follow up with some answers.

1. Is this case the rule or an exception?

This case is the exception. The Pregnancy Discrimination Act, on its face, does not mandate reasonable accommodations for pregnant employees. It merely requires that employers treat pregnant workers no worse than non-pregnant workers with similar medical conditions. So, to determine whether you must accommodate a pregnant employee’s accommodation request, you must ask yourself in what other circumstances have you made accommodations for other employees. As we know, since Congress amended the ADA in 2009, that law’s definition of a “disability” is so broad as to cover most physical and mental impairments as “disabilities.” We also know that the ADA requires employers to offer reasonable accommodations to disabled workers to enable them to perform the essential functions of their jobs. Thus, if an employer has ever offered an ADA-accommodation to another employee, it will likely have to offer to same to a pregnant employee.

In this case, this employer had no examples of ever accommodating a short-term medical issue. Maybe the right questions weren’t asked in discovery to develop these facts. It’s hard to say. But, given the breadth of the definition of “disability” under the ADA, and the affirmative obligation to accommodate such disabilities, the number of employers that have never accommodated an employee will be slim. If this number is slim, so too will be the number of employers who don’t have to offer accommodations to pregnant employees, who must be treated no worse than anyone with a similarly disabling condition. In other words, I think this employer got lucky. But, assuming as true the fact it had no comparable non-pregnant employees, than this employer did nothing legally wrong (except terminate the employee five weeks too early). Thus, based on the specific facts of this case, I believe it is a correct interpretation of Title VII.

2. Why didn’t the FMLA protect this employee?

To be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the request for leave. In this case, the started working in September 2011, and made her request for time off beginning in June 2012. Thus, as she had been employed for less than 12 months, she was not eligible for FMLA leave.

3. How do you sleep at night (you #%*&^!)?

I sleep just fine, unless I have too much coffee after 8 pm or the dog is snoring.

Nevertheless, firing an employee under these circumstances is risky. You need to make sure:

1. The employee is not FMLA-eligible.
2. You have never accommodated any non-pregnant employees with time off, modified work assignments, or other accommodations to account for similar work restrictions. Otherwise, you would be treating this pregnant employee less favorably than comparable non-pregnant employees, which would constitute pregnancy discrimination under Title VII.
3. If there is ever a time to call you employment lawyer before firing an employee, the circumstances of this case would be that time.

Beware the “anticipatory pregnancy” claim

In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.

Araceli Cadenas worked as a certified nursing assistant at a nursing and rehabilitation facility. Her position required her to pull, push, or lift at least 20 pounds. At her 15th week of pregnancy, Cadenas presented her employer a note from her doctor stating that once she reached the 20th week of pregnancy, she would no longer be able to lift more than 20 pounds. Faced with an employee who soon would be unable to perform the essential functions of her job, the company fired her.

First, the court concluded that that Butterfield had no duty to accommodate Cadenas’s pregnancy-related restrictions.

Meadowbrook was not required to accommodate Cadenas’ physical restrictions—if it would not have accommodated a non-pregnant employee’s similar restrictions—or give her any special treatment, such as light duty, if it would not have afforded that option to a non-pregnant employee. Here, there no evidence that Meadowbrook applied its light duty policy inconsistently to pregnant and non-pregnant employees. Cadenas submits no competent evidence to contradict the fact that Meadowbrook denied both pregnant and non-pregnant employees an accommodation of light duty work unless they had suffered a work-related injury. This neutral policy is not evidence of discrimination.

Thus, without any duty to accommodate, Meadowbrook was entitled to fire Cadenas at her 20th week of pregnancy, because, at that time, she could not perform the basic functions of the job.

The court then turned to the timing of the termination. Was Butterfield justified in firing Cadenas at week 15, even though her restrictions did not take affect until week 20. On this issue, Cadenas’s pregnancy discrimination claim faired much better.

In this case, Meadowbrook never suggested, or provided evidence, that there was any business reason not to let Cadenas work during the five weeks remaining before her restrictions went into effect.… Without any physical restrictions applicable between weeks 15 and 20 of Cadenas’ pregnancy, Meadowbrook has pointed to no non-discriminatory reason for terminating Cadenas effective immediately.… On these facts, a reasonable jury could conclude Meadowbrook terminated Cadenas because of her pregnancy, not because she was subject to any present restrictions.

Thus, Cadenas can take her claim to a jury, but her economic damages are limited to five weeks back pay.

What can we learn from this case?

1. It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
2. If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.

[Hat tip: Judy Greenwald at Business Insurance]

LinkedIn’s $6M FLSA settlement provides a good lesson to employers (updated)

LinkedIn will pay nearly $6 million in back pay and liquidated damages to 359 current and former employees following a Department of Labor investigation, reports the DOL.

The employees, reports Business Insider, are commissioned inside salespeople. Typically, inside salespeople are not exempt under the FLSA, and must be paid overtime for all hours worked over 40. If an employee is paid a straight commission, you would, on a weekly basis, divide the commissions paid that week by the total numbers of hours worked to arrive at the hourly rate for that week. You would then multiply that hourly rate by 1.5 to obtain the overtime rate for that week, and pay the 0.5 premium rate on top of the commissions for any hours worked in excess of 40 for that week. LinkedIn says that the violation “was a function of not having the right tools in place for some employees and their managers to track hours properly.” Likely, it had mis-assumed that its inside salespeople were exempt.

This story offers businesses two important lessons:

1. Do not assume that you need not pay overtime to employees who are paid other than hourly. The method of pay is not the only factor that determines whether an employee is exempt. Instead, you must undertake a fact-specific analysis for each employee’s job duties to determine if it falls under one of the FLSA’s narrow exceptions. Making assumptions without taking the time to do the analysis will result in costly wage-and-hour mistakes.
2. If the DOL comes knocking, cooperate. Cooperation helps demonstrate that any errors are sins of omission, not of commission. Ignorance may not excuse FLSA violations, but it will definitely put you in a better light with the DOL than will chicanery. And, if the error is cut and dry, pay. You gain nothing from digging in your heels to fight a clear wage-and-hour mistake, other than incurring a gaggle of legal fees. I’m not saying you should go this alone with legal counsel and guidance, but the lawyer should be guiding you to a resolution, not a costly battle.