The FMLA has eligibility limits (unless you tell your employees otherwise)

The FMLA does not provide leave benefits to all employees of all employers. First and foremost, it only covers employers with 50 or more employees. And, only a subset of employees of a covered employer is eligible for FMLA leave.

An employee is eligible for FMLA leave from a covered employer if the employee—

1. was employed by the employer for at least 12 non-consecutive months;
2. worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. works at a location where the employer employs 50 or more employees within a 75-mile radius.

Employees who fails to meet any one of these criteria are not eligible for FMLA leave … unless the employer tells them otherwise.

In Tilley v. Kalamazoo County Road Commission (6th Cir. 1/26/15) [pdf], the employer maintained the following FMLA policy:

Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.

The employer, however, denied Tilley’s request for FMLA leave because he did not work at a location that employed 50 or more employees within a 75-mile radius. Based on the employer’s unambiguous policy, however, the court concluded that the employer waived any ability to rely upon the 50-employee threshold.

This is an unambiguous and unqualified statement that Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits…. 

The Road Commission could have qualified its statement concerning employee eligibility by adding that its full-time employees would only be covered by the FMLA if they worked at, or within 75 miles of, a site at which the Road Commission employed at least 50 employees. That is precisely what other employers have done…. 

And we are unwilling to conclude as a matter of law that Tilley was unreasonable in relying on the Manual’s statement that employees in his position were eligible to apply for FMLA benefits. Simply put, a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA.

Bottom line? Courts will hold you to your word if you mis-represent FMLA eligibility to an otherwise ineligible employee. If you, as an employer, do not want to go beyond the FMLA’s baseline requirements, you need to check, and then double-check, your leave policies, to make sure you are not promising your way into more coverage than intended.

Should it matter if your employee thinks hand scanners are tools of Satan?

If you’re a long time reader of my blog, you might recall a story I shared a few years ago about a co-worker at one of my high-school jobs, who held some interesting opinions about Lee Iacocca, Satan, and the end of the world. At the time, I made a point about taking the path of least resistance with reasonable accommodations.

Apparently, Consol Energy is not a blog subscriber.

The Pittsburgh Post-Gazette brings us the story of Beverly Butcher Jr., an employee at its Robinson Run, West Virginia, mine, and an Evangelical Christian, who refused to use the company’s hand scanner to clock in an clock out, because he believed it would imprint him with the “mark of the beast.” Instead of working with Butcher, or providing him an alternative way to track his time, the company mandated his use of the hand scanner. He quit, the EEOC sued on his behalf, and, last week, a federal jury ruled in his favor, awarding him $150,000 in compensatory damages on his religious discrimination claim. Later this year the court will rule on back pay, front pay, punitive damages, and attorneys’ fees.

Whether or not an employee is entitled to a religious accommodation is not dependent upon whether or not you happen to agree with the employee’s religious beliefs. Instead, it hinges solely on whether the beliefs are sincerely held, and, if so, whether you can provide the accommodation without it imposing an undue hardship. While this employer could make a credible undue-hardship argument based on the need for accurate time tracking, and uniformity among employees, it it worth it. Denying the requested accommodation—not using the hand scanner and tracking time in and time out with a different tool—is not worth the headache and associated costs of a federal lawsuit (verdict included).

Requests for accommodations (whether for religious or disability purposes) are not the demarcation on a battleground. Instead, they are a call for a middle ground. Employers need to recognize this truth, and starting wars that simply are not worth fighting.

WIRTW #352 (the “rock hard” edition)

In my never-ending quest to be an employment lawyer and manager for my 8-year-old daughter’s burgeoning rock career, I bring you 4:50 of melt your face off rock and roll from last weekend’s School of Rock Joan Jett show. That’s Norah killing the lead guitar on “You Got A Problem,” and closing the show with “Bad Reputation.”

My personal favorite part—Norah’s demure, “Thank you very much / Have a good afternoon” after screaming about her bad reputation. Who said polite manners and rock ‘n’ roll don’t mix?

You can check out the repeat performance tomorrow, January 24, at 1 pm at the Music Box Supper Club.

Here’s what I read this week:

Discrimination

• New Retaliation Standard of Proof Shows Its Teeth — via Dan Schwartz’s Connecticut Employment Law Blog
• Keeping Up With the EEOC in 2015 — via Law.com - In-House Counsel
• Donuts & Pregnancy Rumors: A Cautionary Tale — via All in a Day’s Work
• A hospital may have broken the law by NOT hiring a convicted meth dealer — via Eric Meyer’s The Employer Handbook Blog
• Does sex discrimination protection extend to everyone? — via Mike Haberman’s Omega HR Solutions
• Telecommuting Discrimination — via hr bartender
• EEOC’s Arguments to Supreme Court Antithesis of Transparency and Open Government — via WinWinHR
• Is It Time To Make Fat People A Protected Class?​ — via Above the Law
• Five errors that make defending an employment lawsuit harder — via California Employment Law Report
• You’ve gotta be kidding. THIS is retaliation? — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Why Companies Are Doling Out Wearable Devices to Employees — via Next Blog
• Do We Need a “Right to Be Forgotten” in the U.S.? — via Technologist
• Glassdoor Matters Because ALL of Your Employees Are Now Used to Rating Things — via The HR Capitalist, Kris Dunn

HR & Employee Relations

• Should I Check With A Lawyer Before Firing Someone? — via Evil Skippy at Work
• Background Checks – Should We or Shouldn’t We? — via Genesis HR Solutions
• Background Checks: The Devil Is In The Detail — via fyiscreening.com
• 20 Things You Wish Your Coworkers Wouldn’t Do — via Evil HR Lady, Suzanne Lucas
• Debunking 4 Common PEO Myths — via GMS Blog

Wage & Hour

• Wage-Hour Litigation To Rise in 2015: So What Else Is New? — via Wage & Hour - Development & Highlights
• Judge Vacates Parts of USDOL Home-Care Regulation — via Wage and Hour Laws Blog
• Eleventh Circuit Explains That Employer Knowledge of Work Renders It Compensable — via Wage and Hour Law Update
• Should I let employees just leave a voicemail message when they’re going to be out sick? — via Ask a Manager
• Employer Requires Employee to Work During FMLA Leave. Ummmm, Is This a Problem? — via Jeff Nowak’s FMLA Insights

Labor Relations

• Technological change drives three new NLRB decisions — via Business Management Daily
• Newly Released Guidance from NLRB Regarding Social Media Policies — via Matt Austin Labor Law

Why performance reviews matter in employment litigation

According to Employment Law 360, a federal judge has indicated that he will likely deny the motion for summary judgment Deutsche Bank intends to file seeking the dismissal of a sex discrimination lawsuit brought by one of its former vice presidents.

The lawsuit alleges that bank “mommy-tracked” the plaintiff, a 14-year employee with a strong performance history, and ultimately fired her. Her lawyer argued to the court that her strong history of performance reviews demonstrates pretext in the bank’s decisions regarding her performance. In response to the bank’s counter-arguments about her performance (which included an argument that her positive reviews resulted from an “easy grader”), the judge responded, “It’s all sounding really fact-y to me.”

Folks, performance reviews matter. They not only matter in managing your employees during their employment, but they also matter in defending lawsuits about their employment. If you plan on terminating an employee on performance, you need to have the goods to back it up. What should you be doing before the termination? Checking the reviews to make sure the paper trail supports the poor-performer argument. If it doesn’t, you best have a solid explanation as to why. Otherwise, your termination will start to smell not only “fact-y”, but also possibly “pretext-y.” The last thing you want in a discrimination case is for your decision to have the scent of pretext.

New anonymous workplace app raises big workplace issue

Have you heard about Memo? It an iPhone app that allows individuals to post anonymous comments, both positive and negative, about their employers to a specific group page about the company. As you could imagine, it’s the negative posts that will get the lion’s share of attention.

Here’s what a typical company-bashing comment on Memo looks like.

According to Quartz.com, Memo has already “received two cease-and-desist letters, two companies have blocked emails from Memo hitting their servers, and three companies have written memos to employees about the app.”

I want to address the latter—companies that, via policy, fiat, or otherwise, try to stop their employees from using Memo.

As you should know, federal labor law gives employees the right to engage in protected, concerted activity—that is, discussions between or among employees about wages, hours, and other terms and conditions of employment. Employees’ discussions, for example, about an open-door policy, would be a textbook example of protected concerted activity.

Federal labor law prohibits employers from retaliating against employees for engaging in protected concerted activity. Retaliation isn’t Memo’s biggest risk because its posts are (supposedly) anonymous. However, federal labor law also prohibits employers from maintaining or enforcing policies that could chill employees’ right to speak about terms and conditions of employment.

Thus, if you think you can legislate Memo (or other similar apps) out of your workplace, you might want to think again. The NLRB will likely hold a very different opinion about the rights of your employees to talk about your company, anonymously or otherwise.

Old laws meet new technology: sexual harassment via social media

Last week, the EEOC held a public meeting on workplace harassment. The most interesting testimony was provided by Jane Kow, of HR Law Consultants, who spoke about the impact of harassment on the modern workplace. One of the key areas she covered was the intersection of workplace harassment and social media:

The ease and speed of posting or responding to the proliferation of messages and images on social media—sometimes by employees at the 11th hour, right before bed, in 140 characters or less, and oftentimes without aforethought—has spawned employee complaints of harassment, defamation, violation of a right to privacy and a host of other claims. None of this was even imaginable in 1964 when Title VII was enacted (or in 1991 when it was amended). But employers must now interpret an EEOC guidance that was written and cas es that were decided by courts in the old millennia to determine how to apply these rules to regulate conduct in the new workplace of the present and future, transformed by these technological advances. 

Employers are now grappling with how to lawfully regulate employees’ text messages, blogs, and social media activity in the face of potential complaints from co-workers about harassing comments posted or images shared publicly.  

What does this mean for your business. The workplace's boundaries no longer begin a 9 and stop at 5. Technology connects employees to each other 24/7. This added connectivity creates opportunities for greater employee engagement and stronger workplace communities. It also creates opportunities for bad actors to do bad things, like harassment. It's important for employers to keep in mind that agencies and courts will apply the same rules to Facebook harassment as they would to face-to-face harassment. If they aren't treating any differently, neither should you.

A few from the archives for MLK Day

Today is Martin Luther King Jr. Day.

Race relations have been particularly scrutinized over the past few months, with Ferguson and its fall out around the country. Thus, it is more important than ever to pause and think about Dr. King, and the lessons of inclusion and respect to be learned from his life and untimely death.

In this regard, here is what I’ve had to say to mark this day over the past few years.

• Something Different for MLK Day
• What Dr. King fought for … and what he didn’t
• MLK Day calls for reflection about how far race relations have come, and how far we have left to go
• Some words to ponder on MLK Day