Argument that FMLA does not prohibit retaliation falls on deaf ears at court of appeals

When a company is caught making a bad employment decision, they come to us, their lawyers, to bail them out. Bryant v. Dollar General Stores (6th Cir. 8/15/08), presents one such example. Dollar Stores fired Martha Bryant, who testified that her supervisor told her she was being fired "[b]ecause of your health, I don’t think you can do the job."

Faced with what one can safely call bad facts, Dollar Stores got creative. It argued, both to the trial court and on appeal, that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. The 6th Circuit correctly rejected that argument, and held that the FMLA does, in fact, allow for retaliation claims:

Any "right" to take unpaid leave would be utterly meaningless if the statute’s bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave as a negative factor in employment decisions. Interpreting § 2615(a)(2)'s ban on discrimination in a manner that would permit employers to fire employees for exercising FMLA leave would undoubtedly run contrary to Congress's purpose in passing the FMLA. ...

Dollar General's reading of the statute would essentially render the FMLA a nullity. Their interpretation would require us to believe that—despite including statutory provisions granting eligible employees the "rights" to take up to twelve weeks of unpaid leave in a twelve-month period and to be restored to their prior positions or equivalent positions upon their return—Congress wished to erect no obstacle to prevent employers from terminating employees who exercise their newly granted "rights." In enacting the FMLA, Congress plainly stated that "the purpose of this Act" included establishing a right for "employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b). Interpreting the language in § 2615(a)(2), which bars employers from discriminating against employees, in a manner that would permit employers to terminate employees for taking qualifying medical leave is fundamentally inconsistent with the clear, unambiguous purpose of the FMLA.

There are two lessons to take from this case, aside from the common sense legal rule it announces. Lawyers are not superheroes. We cannot do the impossible, although we often try for our clients.

Five reasons why I'm against the Healthy Families Act

As most know, the Healthy Families Act paid sick leave mandate guarantees seven days of paid sick leave each year to employees who work at least 30 hours a week and a pro-rated number of days to employees working less than 30 hours in any workplace with at least 25 employees. Who can argue against paid time off from work? It's a benefit that most employees would love to have.

If employees dig deeper, however, they will realize that the Healthy Families Act, while attractive on its face, is not the cure-all they need for their families. In fact, it will cause more short and long term damage to Ohioans' jobs than lacking a few paid days off per year.

1. Requiring employers to add paid sick leave is a threat to pay, benefits and jobs. The proposed mandate imposes significant added costs on employers, who in turn will be forced to look elsewhere to make up the difference. Other benefits, pay, and even jobs will be on the chopping block as businesses try to find the money to pay for sick leave. What good is paid sick leave if employees can no longer afford the health insurance that covers their sick family members because employers increase employees' contributions to counterbalance the cost of mandated sick leave?

2. Even employers who already offer paid sick leave will be seriously penalized by this proposal. This proposal allows employees to take sick leave with little or no advance notice in increments as small as an hour or less. How will you feel if you have to cover for an employee who goes home, with pay and without notice, because he or she has an upset stomach? Moreover, this unannounced leave poses a serious threat to safety-sensitive operations like hospitals, nursing homes and day-care facilities.

3. This mandate will brand Ohio as a job-killer. Ohio is suffering through its worst economic period in decades. This mandate will make Ohio the only state in the union with a mandated paid sick leave law, significantly driving up the cost of doing business when we can least afford it. Some Ohio companies will leave for less expensive states while companies in other states will dismiss Ohio as a potential location for expansion. In short, this mandate will kill economic development at a time when we need more jobs, not fewer jobs. What good is paid leave is there are no jobs left in which to use it?

4. The increased cost of paying for sick leave will result in more expensive goods and services. High oil prices has already increased the costs of many goods and services. While employers in the short term will need to cut benefit packages to pay for this mandate, the long-term result will be increased costs of goods and services, as businesses need new ways try to cover the cost of paid sick leave.

5. This proposal interferes with the established relationship between employers and employees at some of the nation’s most successful businesses. Many companies now operate under long-standing policies that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production. This proposal guts the employer-employee relationship and threatens the production stability achieved during years of mutual cooperation.

Governor Strickland's efforts to broker a deal between business and union leaders appears to have failed. Unless the unexpected happens, the Healthy Families Act will be on November's ballot. It is important to keep these ideas in mind when considering this mandate, and not simply get caught up in the sex appeal of a few paid days off per year.

WIRTW #43

A quick thank you to everyone who helped make Monday's Blawg Review #172 a huge success - those who sent in suggested links and those who graciously linked to the post and helped drive traffic. Now, onto what I've been reading the rest of the week.

The Connecticut Employment Law Blog writes on the difficulty of predicting litigation costs at the start of an employment case.

The Delaware Employment Law Blog lists the top 10 reasons employers should screen their job applicants.

BLR's HR Daily Advisor presents another top 10 list, reasons why HR documentation fails in court.

WorkplaceHorizons reports on the Workplace Religious Freedom Act, which would amend Title VII by modifying the definition of "religion"and requiring employers to make an affirmative effort to reasonably accommodate the religious practices of employees.

The Labor and Employment Law Blog gives some advice for employers to consider in the use of GPS tracking devices.

The FMLA Blog summarizes Santacrose v. CSX Transportation, an 11th Circuit decision which held that an employer satisfied its duty to reasonably accommodate a disabled employee by permitting him to take intermittent FMLA leave.

The HR Capitalist asks whether your HR employees would violate HIPAA to see celebrities' medical records.

The Trial Technologists View reports on his recent use of technology to help an employer present its case in a sex discrimination trial.

Even California thinks paid sick leave is a bad idea

California is uniformly thought of as the most liberal employment law state. It is often the test ground for new employment laws and theories. Yet, paid sick leave could not even make the grade in the Sunshine Golden State. According to the Angeles Times, California's paid sick leave measure died in its legislature:

A state bill to guarantee paid days off for sick workers died Thursday amid opposition from business lobbyists and lawmaker concern that the benefit was too costly.

The bill would have granted employees of small companies in California up to five days of paid sick leave each year. Workers at larger firms could take up to nine days a year. ...

Small businesses and their lobbyists who fought the sick-leave measure said they were relieved that it failed. They estimated that the bill would cost 370,000 jobs in California and would burden employers with $4.6 billion in new costs over a five-year period.

The bill "unfairly presumed that small-business owners are able to provide paid sick leave and don't want to," said John Kabeteck, executive director of the National Federation of Independent Businesses. "That couldn't be further from the truth. The fact is that many want to but simply can't afford it." ...

If the proposal had become law, California would have been the first state in the nation to provide universal paid sick leave. But it would have eroded the state's ability to attract new employers, said state Chamber of Commerce President Allan Zaremberg. Ma's proposal was high on the influential business lobby's annual list of "job killer" bills.

Do these themes sound familiar? Ohio's legislature has already rejected the Healthy Families Act. California has now done the same. If California, whose economy is much more robust than Ohio's, is concerned that a paid sick leave mandate will erode that state's ability to attract businesses, what will the same measure mean for Ohio?

Presented by Kohrman Jackson & Krantz

Stupidest employee ever?

The above video is of a Xenia, Ohio, Burger King employee who not only thought it was a good idea to take a bath in the restaurant's utility sink, but then went one step further and posted it on YouTube. Cleveland.com reports that Burger King has fired all of the employees involved in the incident. It also released a statement that it had sterilized the sink, disposed of all kitchen tools and utensils used in the incident, and is retraining the staff in health and sanitation procedures.

A few points.

1. I knew there was a reason why I don't like to eat fast food.

2. This story provides another example of the risks employees take when posting videos or pictures on social networking sites.

3. This story is also a good example of crisis management in the workplace. Burger King handled this situation properly. It fired everyone involved, and is retraining its remaining employees in health and sanitation. Any time a crisis rears its head, whether its sexual harassment, an employee taking a bath in a food preparation area, or something it is always a good idea to send the proper message and set expectations of future conduct through retraining.

A lesson in how not to handle a pregnant employee

"Being pregnant here - it's like wearing a scarlet letter 'P' on your chest," said Lori Ann DiPalo, 36, the MTA Bridges and Tunnels officer. The New York Daily News reports that DiPalo's physician certified the 10-week pregnant officer as fit for duty without restrictions. Nevertheless, she was stripped of her badge and gun and and banished to tollbooth duty.

A doctor for Bridges and Tunnels read DiPalo's file and decided she shouldn't carry a gun.

"When I asked why, they said they didn't want to risk abdominal injury or me having to use 'deadly physical force,'" she said.

So DiPalo - unarmed but in uniform - now stands in a bridge tollbooth from 11 p.m. to 7 a.m. collecting tolls. ...

In her six years as a peace officer, DiPalo has arrested frauds, drunken drivers and other people who had noright to be behind the wheel. She has dispatched officers, handled roll call and patrolled the vulnerable bases of various bridges and entrances to tunnels - considered key targets for potential terror attacks.

"I like my job. I want to work. My doctor said I can," she said.

This paternalistic decision making is exactly the type of employment practice the EEOC sought to combat in drafting its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Per the EEOC:

Employers can also violate Title VII by making assumptions about pregnancy, such as assumptions about the commitment of pregnant workers or their ability to perform certain physical tasks. As the Supreme Court has noted, "[W]omen as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." Title VII's prohibition against sex discrimination includes a prohibition against employment decisions based on pregnancy, even where an employer does not discriminate against women generally. As with other sex-based stereotypes, Title VII prohibits an employer from basing an adverse employment decision on stereotypical assumptions about the effect of pregnancy on an employee's job performance, regardless of whether the employer is acting out of hostility or a belief that it is acting in the employee's best interest.

This story illustrates an important lesson about the perceptions we hold, consciously or unconsciously, about certain classes of employees. DiPalo was benched out of apparent good intentions. Nevertheless, that decision is not one for the employer to make. It is a decision between the pregnant employee and her doctor. Once the doctor clears her to work, it is out of the employer's hands to say otherwise, even if it has the mother's and baby's best interests at heart.

Tell us something we didn't know - court holds that sex is a major life activity

"Disability" is a term of art under the ADA. To be legally "disabled" and entitled to the protections that the ADA provides, it is not enough to simply have a medical condition. That condition must substantially limit a major life activity. In Adams v. Rice (2nd Cir. 7/18/08) (decided under the Rehabilitation Act, the predecessor to the ADA, which prohibits federal agencies from engaging in employment discrimination against disabled individuals), the court was faced with an employee with stage-one breast cancer, which the court determined substantially limited her in the major life activity of sexual contact and romantic intimacy:

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an "activity" in any sense of that word. ... At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to "be fruitful and multiply." Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a "major" life activity. ...

Having decided that engaging in sexual relations qualifies as a major life activity, we next determine whether Adams has sufficiently alleged a substantial limitation on that activity. This is an individualized inquiry that focuses on Adams's own experience. ... According to Adams, her breast cancer treatment rendered her completely unable to engage in sexual relations. Due to the scarring from her mastectomy and breast reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or some combination of those factors, she claims that her "ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently." ... Adams's breast cancer qualifies as a disability because it amounted to a physical impairment that substantially limited her in the major life activity of sexual relations.

The employment decision is this case just smells bad. Adams had passed both the written and oral examinations for the Foreign Service before finding out she had breast cancer. After her diagnosis and surgery, the State Department cleared her appointment, advising Adams that she had scored 7th out of the 200 applicants. The next day, Adams informed the State Department of her cancer. The State Department, in turn, withdrew her clearance. Thus, the court looked past the lack of any nexus between the employer's knowledge of the condition and the knowledge of the substantial limitation on a major life activity.

Perhaps the lesson to be learned is that when a case presents horrific facts, courts will sometimes find a way to rationalize a fair and just result. There is no doubt that Adams's cancer had no impact on her ability to do her job whatsoever, and yet it appears clear that is was entirely because of her diagnosis that the State Department pulled her foreign clearance and killer her application. In other words, if it looks like discrimination, and smells like discrimination, it probably is discrimination.

Study suggests trials too risky; are lawyers really to blame?

It is no surprise that nearly 90% of all civil cases settle before they ever get before a jury. The New York Times is reporting on a study by Randall L. Kiser, principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions, who wondered if the decision to proceed to trial and forego settlement is the correct one in the 10% of cases that are tried.

In a study to be published in the September issue of the Journal of Empirical Legal Studies, he concluded that plaintiffs are much better off taking the offer that is on the table instead of risking it all by going to trial:

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

"The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more," said Randall L. Kiser. ...

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The article suggests that lawyers are to blame by not giving clients the proper advice. Our jobs, however, are not to make the decision for our clients whether to settle or try a case. In fact, it would be unethical to do so. Instead, our role is to provide our clients with as much relevant information as possible, lay out the risks and rewards inherent in the options, and let them make an informed decision. If we think they are making the wrong decision, our job is to try to persuade them to what we think the right decision is, until they either come around to our way of thinking, or we determine that they will not.

The article also suggests that lawyers are driven by high fees and not good results for their clients. I respectfully disagree. Clients are relationships, not cash cows that can be milked dry in every case. The best way to build such a relationship is not by draining every nickel from a client on every matter, but by being cost effective. Part of being cost effective is understanding when it is time to fish, and when it is time to cut bait.

Blawg Review #172

In honor of the start of the Beijing Olympics, it would have perhaps made more sense for this week's 172nd edition of Blawg Review to have been hosted by the China Law Blog. Having just hosted Blawg Review #162 a mere two months ago, however, a repeat performance is not in the cards. Instead, you get me, who knows little about China. I do plan, though, to watch copious amounts of Olympic coverage over the next two weeks. Accordingly, I bring you this Olympic-themed Blawg Review.

First, a little history lesson on the Olympic Games themselves, both ancient and modern (borrowed heavily from Wikipedia).

Legend has it that Heracles created the ancient Olympic Games and built the original Olympic stadium in honor of his father, Zeus. It is believed that the first Olympics took place somewhere between 884 BC and 704 BC. Thereafter, they became very important throughout ancient Greece. During the ancient times only young men could participate. Competitors were usually nude, as the festival was meant to be a celebration of the achievements of the human body. Winners of the twenty different events became immortalized in statutes and poems, such as wrestler Milo of Croton. As the Romans gained hold in Greece, the Olympics gradually declined in significance. In 393 AD, after Emperor Theodosius I declared Christianity the official religion of the Empire and banned pagan rites, the Romans outlawed the Olympic Games as a pagan festival in 393 AD.

The modern Olympic revival can be traced to the confluence of several events. First, in 1859, Evangelos Zappas, a wealthy Greek philanthropist, sponsored the revival of the first modern international Olympic Games, held in an Athens city square in 1859. The only countries that participated were Greece and the Ottoman Empire. Zappas held Games again in 1870 and 1875.

Secondly, in the mid-19th century, German archaeologists uncovered the ruins of Olympia, the site of the ancient Olympics.

At the same time, Pierre de Coubertin, a French aristocrat, concluded that the reason the French lost the Franco-Prussian war was because they had not received proper physical education (apparently, it had nothing to do with the post-Napoleonic warfare proficiency of the French). He also believed that he could improve international relations and curb warfare by having world youth compete in sports. In 1890, he decided that the formal  revival of the Olympic Games would achieve both of his goals, and founded the International Olympic Committee. That committee decided that the first IOC Olympic Games would take place in 1896 in Athens, in the country of their birth. The Panathenian stadium that was used for Zappas's Olympic Games in 1870 and 1875 was refurbished and reused for the Olympic Games held in Athens in 1896.

The first modern Olympics in 1896 had 250 total athletes, the largest international sports event ever held until that time. Over the next two weeks, more than 11,000 athletes will compete in Beijing.

Over the next many paragraphs, dozens of the best posts from around the blawgosphere will be featured and awarded appropriate medals for their blawging excellence.

In the labor and employment law events, gold medals are awarded to the following:

That's What She Said, for its reminder that events such as Office Olympics are key to finding balance and building camaraderie in the workplace.

The Delaware Employment Law Blog, for their topical post on dress codes in Beijing during the Olympics. A silver medal also goes to their post on "Desk Rage", which is apparently becoming all the rage in our workplaces.

The Connecticut Employment Law Blog, for posting on a favorite topic of mine, workplace fairness.

The Pennsylvania Labor & Employment Blog, for blaming the legal system and sexual harassment liability for removing any semblance of humor from the modern American workplace. A silver medal goes to Michael's post on DeJohn v. Temple University, which bizarrely held that the First Amendment limits a public university's ability to enforce its sexual harassment policy.

Rush on Business, for giving us the the real reason the Packers traded Brett Favre, to avoid any potential age discrimination liability.

The Manpower Employment Blawg, for informing us that "the EEOC is not in the business of judging anyone’s musical tastes."

The Workplace Prof Blog, for its post on a employer going to jail for not securing workers comp coverage for her employees.

The Word on Employment Law, for letting us know that sometimes PR is stronger than PC. A silver medal goes to WorkplaceHorizons, for its coverage of the same topic.

The HR Capitalist, for reporting on on Walmart's foray into employee mind control.

On the issue of the California Supreme Court's 7-0 ruling that under California's Business and Professions Code section 16600, non-compete agreements are invalid even if they are written narrowly enough not to deprive persons of their right to pursue their profession, we have a five-way tie: World of Work, Trading Secrets, the Labor Employment Law Blog, The Business of Management, and What's New in Employment Law?. (Can you tell this is a very significant decision?)

The California Labor & Employment Blog, for its discussion of an employee vs. independent contractor bill pending in its home state.

George's Employment Blawg, on "blind" hiring practices.

Storm's California Employment Law, for brining a little bit of the Kosher to labor law.

Human Rights in the Workplace, for the Russian judge who ruled, "If we had no sexual harassment we would have no children." The silver medal goes to Abovethelaw for its report on the same issue.

The FMLA Blog, for its post on taking FMLA leave to care for a child with Tourette Syndrome.

In the non-labor and employment law events, gold medals are awarded to the following:

The Ohio Real Estate Blog, for proving that adverse possession really does exist outside of a law school Property exam.

Ohio Practical Business Law, for informing us on the very welcome trend of specialized commercial courts to handle business disputes.

The Ohio Family Law Blog, for bringing one for the guys.

Bob Sutton, for letting us know that it's ok to laugh at ourselves.

The Res Ipsa Blog, for giving new law students ten helpful tips on how to succeed in law school. Let me add number 11, for any soon-to-be 1Ls that might be reading -- you got to law school by being successful up to this point in your life. Just keep doing what you've been doing and you'll be fine. And, above all else, shut out what everyone else around you is doing. Don't get caught up in how much others are studying, how early in the semester people start outlining, or how confident others appear when answering questions in class. Trust me, they know as little as you and are as scared. The sooner you figure that out, the more sane you'll be.

On Point, for the best victory that is not a victory jury verdict of the week -- $1.5 million to a woman who sued a man for infecting her with a sexually transmitted disease.

Lowering the Bar, for its exposé on the ACLU's efforts to protect baggy pants and mullets.

Electronic Discovery Law, for reporting on a defendant's failure to preserve security camera footage of a slip and fall, and resulting adverse inference instruction the plaintiff received as a result of the court's conscience being shocked.

Traverse Legal, for their post explaining the treatment of works made for hire under the copyright act.

Drug and Device Law, for tying together Benjamin Franklin, Albert Einstein, and George Bush.

The MassLawBlog, for updating my urban dictionary with the term "whole paycheck."

The Irish blawg Cearta.ie, on three recent cases in which individual privacy trumped the right to a free press.

The Settle It Now Negotiation Blog, on why it's so hard to say I'm sorry.

The very long-titled Consumer Goods & Retail Industry Litigation Blog, for bringing to everyone's attention the incentives of being a whistleblower.

Susan Crawford, for being down on Comcast.

Lowering the Bar, for bringing the phrase, "Cloned-Dog-Mormon-Attack in the  lexicon.

A Stitch in Haste, for reminding us of how little privacy we really have in this country. A silver medal to Simple Justice for the same topic.

Adam Smith, for reminding that people can still whine about being paid $175,000 a year for reviewing documents.

What About Clients?, for jumping on the anti Martindale-Hubbell bandwagon.

UsefulArts, for writing one for the gamers.

The Wall Street Journal's Law Blog, for introducing me to the phrase, "defamation of religion".

IPKat, for her picture of a cat wielding a light saber.

The Electronic Frontier Foundation, for reporting on my right to skip commercials with my beloved DVR.

Finally, Sentencing Law and Policy, for reminding me that there will always be stupid people in the world. 

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Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Fired for Smoking

Back in April, I brought everyone the story of a German company that fired an employee for not smoking. This morning, the ABA Journal reports on the converse, an upstate New York law firm that fired a paralegal for taking a smoke break: 

A New York appeals court has upheld a Rochester law firm's decision to fire a paralegal who defied a policy that banned smoke breaks for hourly employees.

Karen Kridel had reportedly worked at the firm for more than a year and took a five-minute break in the morning and afternoon to smoke, the Associated Press reports. Kridel, who said the breaks re-energized her, claimed she often made up the time taking calls during her lunch break.

But the firm had banned smoke breaks for hourly workers, outside of the lunch hour, and in 2006 began enforcing it when five-minute breaks turned into 15 minutes, a half hour and then one employee was found sleeping in a car.

There is nothing inherently illegal about having a policy that bans smoke breaks, or terminating an employee for violating that policy. Smoke breaks cripple productivity. Those who abuse them annoy their co-workers and managers, who feel like they are left to do the smokers' work. I once had an assistant who I could never find because she was always outside smoking.

At the same time, however, companies need to be flexible in how they handle employees and their personal needs. Draconian policies (such as no smoke breaks under any circumstances) cripple morale. Moreover, such policies, if not followed to the letter, can lead to discrimination claims. For example, if the company is more permissive with a male paralegal who takes 5 minutes out of his day to run an errand, it could be subjecting itself to sex discrimination liability for treating the female smoker more harshly.

Instead of having a blanket "no smoke break" policy, consider counseling employees who are seen as taking advantage of smoke breaks by taking them excessively or without permission. Building such policies into employees' normal performance evaluations is a much better practice than an outright prohibition on an entire type of conduct.

Blawg Review reminder

Just a quick reminder that I'll be hosting Blawg Review #172 this coming Monday, August 11. If you would like me to consider one of your posts for inclusion, or if you have a post that you've come across this week that you'd like to recommend, please follow this link to Blawg Review and for the submission guidelines.

Will the Healthy Families Act prohibit fraud?

A commenter took me to task for yesterday's post, in which I argued that under the proposed Healthy Families Act employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs. To support his/her point, the commenter relied upon Vail v. Raybestos Products Co., an FMLA decision out of the 7th Circuit.

In that case, Diana Vail was terminated while out on FMLA leave. Vail claimed to suffer from migraine headaches, that would come upon her shortly before her scheduled shift at Raybestos. Between May and September 2005, she took more than 33 days of approved leave. Her supervisor became suspicious, hired an off-duty cop to tail her, discovered that she was helping her husband's lawn mowing business while on FMLA leave, and terminated her. The Court correctly rejected her FMLA interference claim:

An employer can defeat an interference claim by showing, among other things, that the employee did not take leave "for the intended purpose." ... We have interpreted this to mean that an employer has not violated the FMLA if it refused to reinstate the employee based on an "honest suspicion" that the she was abusing her leave. ...

Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone further than Raybestos. ... In any event, the information gleaned from Sergeant Largent's reconnaissance was sufficient to give Raybestos an "honest suspicion" that Vail was not using her leave "for the intended purpose." Vail had taken medical leave for her October 6, 2005 evening shift. The next morning, the off-duty police officer saw Vail working for her husband's lawn-mowing business. Raybestos received this information after it already suspected that Vail was gaming her leave in order to work for her husband's business. So when it heard information consistent with what they suspected she was doing while on leave, Raybestos decided to terminate her. ... Raybestos did not violate Vail’s rights under the FMLA.

The Vail case, however, is vastly different than the example I discussed yesterday, which focused on systematic audits by employers of employees' use of sick time. No one would reasonably argue that an employer cannot legitimately investigate a specific employee that in good faith it suspects of committing fraud. However, the Healthy Families Act very well might prohibit more general investigations that may catch crooked employees in its dragnet.

Section 4114.10(B) of the proposed Health Families Act states: "No employer shall interfere with, restrain, or deny the exercise of or the attempted exercise of any right provided in this Act." It will be up to the courts to interpret what this section means, but employee advocates will certainly argue that blanket investigations of employees' use of sick time could interfere with or restrain employees' use of sick time. If an employee thinks that he or she could be terminated if an employer investigation determines that a sick day was improvidently taken, that employee might be less likely to use sick days at all. Thus, one could conclude that generalized investigations violate section 4114.10(B).

Any statute that could be construed to inhibit an employer's ability to investigate and catch employee fraud is a poorly conceived and drafted statute. This is yet another reason why the Healthy Families Act is bad for Ohio businesses.

Healthy Families Act appears headed to November ballot

The Cleveland Plain Dealer is reporting that Ohioans for Healthy Families has submitted to the Secretary of State double the number of signatures needs to place the Healthy Families Act on the November ballot. The battle lines are being drawn between supporters of the ballot initiative and Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses that opposes the initiative as bad for Ohio businesses. Governor Strickland continues to seek a compromise to keep this job-killing measure off the ballot. Ohioans to Protect Jobs and Fair Benefits, however, rightly believes that a compromise is impossible: "The premise of this proposal - to require a costly state-imposed employee benefit that no other state now requires - is unacceptable on its face."

Meanwhile, another story in this morning's Plain Dealer illustrates one of the key problems with the Healthy Families Act. It seems that Cleveland has been spot-checking its safety employees' use of sick time:

For the past 18 months, EMS and firefighter supervisors haven't just been rushing to fires or medical emergencies, they've also been checking up on employees who called in sick.

The checks are done when more than five call off on any day or when people use sick days around holidays and vacations. Employees who don't answer the door when supervisors knock must produce a note or other proof that they visited the doctor or pharmacy or face discipline.

Last week, EMS began pre-discipline hearings for 36 paramedics over sick-time use. Firefighters have already been disciplined.

Employees who call off sick force the city to pay overtime to maintain minimum staffing levels, costing hundreds of thousands of dollars a year. If the city didn't pay the overtime, fire trucks and ambulances would sit idle, said Safety Director Martin Flask.

"Sick time has a detrimental impact on safety services," he said. "Rules have to be followed."

If the Healthy Families Act becomes law, this practice might become illegal. Section 4114.10(C)(2) of the proposed law states: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... Using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." Checking whether an employee's use of sick leave is legitimate could be construed as violating this provision. In other words, as the law is written, employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs.

For more information on how you can help defeat the Healthy Families Act, visit www.saveourjobsandbenefits.com.

Anti-bullying policies are unnecessary

April's decision by the Indiana Supreme Court that upheld a $250,000 verdict in a so-called "workplace bullying" case is causing some employment lawyers to call for businesses to adopt anti-bullying policies. Please do not include me in that group.

From the Wall Street Journal's CareerJournal column:

Experts define workplace bullying as subtle, persistent and often nondiscriminatory harassment of co-workers. Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal. But bullying can contribute to absenteeism and turnover and escalate into illegal behavior if left unchecked, experts say. ...

The Indiana decision came amid growing concern about workplace bullying. Garry Mathiason, a senior partner at Littler Mendelson, a leading employment-law firm, says more corporate clients are raising the issue, motivated by legal questions, as well as concerns about the impact on productivity. Littler Mendelson featured bullying among its "breaking trends" in labor law at a conference for U.S. employers this year.

Angela Cornell, an associate professor at Cornell Law School who specializes in employment law, says workplace bullying is common enough that employers should "nip it in the bud before it becomes a problem."

Graniterock, a Watsonville, Calif., construction-materials distributor, is trying to do just that. In June, Graniterock added nondiscriminatory bullying to its list of prohibited conduct in the workplace, which already included harassment based on gender, ethnicity and other protected statuses. ...

Some business groups and lawmakers say workplace bullying is too difficult to define, and a poorly worded law would expose businesses to unnecessary lawsuits.

Mr. Woolpert says Graniterock executives reworked their antibullying policy several times to clarify its message. The company now forbids "unnecessary and rude behavior intended to be offensive and cause emotional distress, including 'workplace bullying.' "

Let's take a step back and focus for a second on the most important sentence from that article: "Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal." In fact, it's only illegal if its because of some protected class, such as sex, race, religion, national origin, age, or disability. All companies should have an anti-harassment policy that covers these types of illegal harassment. Why do companies need a policy that regulates conduct that is not illegal? Do we really need a policy that tells employees we want them to be nice? If such a policy existed, would it really have any effect whatsoever on the goons in the workplace. My whole problem with the anti-bullying movement is that I don't know how to train people to be nice.

I am against anything that gives this movement any credibility whatsoever. Implementing anti-bullying policies does just that. Bullying should be addressed just like any other performance problem, in a performance review. Otherwise, I stand by my earlier comments on this issue - the market corrects itself. Companies that foster bullies will have a revolving-door workforce, which will ultimately hurt productivity and the bottom line. So there is no confusion, I am not in favor of bullying. However, I'm also not in favor of legislation or policies that attempt to address it as a workplace evil.

Termination versus reasonable accommodation under the ADA

McNary v. Schreiber Foods, Inc. (8th Cir. 8/1/08) asks the question - if a diabetic employee needs to take a break on the job, but is perceived to be sleeping, can the employer lawfully terminate that employee.

David McNary, suffers from Graves disease (an autoimmune disorder with  symptoms that include fatigue) and diabetes. He worked for Schreiber Foods for six years as a sanitation employees on its dairy equipment. Despite his medical conditions, he was never under any work restrictions. However, McNary had many conversations with his co-workers and supervisors about his need for breaks. On occasion, when he felt he could not perform certain tasks due to dizziness and other symptoms, his co-workers stepped in to help him.

On September 22, 2005, while cleaning some trash compactors, McNary became dizzy, sick to his stomach, and light-headed. He left the compactors and sat down, put his feet up on a table, and closed his eyes. According to McNary, he simply took a break but was not sleeping. Two supervisors found him sitting at a table with his head back, his mouth open, and his eyes shut, and he did not appear to have heard an intercom that sounded. McNary denied that he was sleeping, and explained his medical conditions. The Company subsequently terminated him for sleeping on the job.

The Court found that the Company had a legitimate non-discriminatory reason for terminating McNary and was unsympathetic to his claim of pretext:

Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions. One reason we emphasize this point is that a number of plaintiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offer a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be considered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] discharged [McNary] because of his [disability].

This case, however, should be not have been litigated over the propriety of the termination decision, but instead whether the Company had an obligation to reasonably accommodate McNary's conditions. Remember, the ADA does not only prohibit companies from discriminating against individuals with disabilities, but also requires that companies make reasonable accommodation to enable qualified individuals with disabilities to perform the essential functions of the job. By focusing the termination decision, McNary picked a much more difficult battle to win. Had he focused on the accommodation issue, the company would have had to argue that an unscheduled 15 minute break imposed an undue hardship. That point would have been difficult for the company to win in light of McNary's co-workers' past practice of stepping in to help him when he needed a break.

The takeaway for employers from this case is that just because you can terminate an employee does not necessarily mean that you should. This case could have come out differently if the employee had focused on the lack of an accommodation instead of on the decision to terminate. Any time an employer is dealing with a disabled employee, it is best for the employer to tread very lightly. As this case illustrates, the ADA often raises highly nuanced legal issues, and it may be best to get an opinion from counsel before making the decision.

Indiana pushing for passage of Healthy Families Act to help its own economy

If need any more reasons to work as hard as possible to help defeat the Ohio Healthy Families Act, check out the following editorial from the Seymour, Indiana Tribune:

OUR VIEW: Ohio could boost Hoosier economy

We think Hoosiers should encourage Ohio residents to support an effort that would require Ohio companies with at least 25 employees to offer at least seven sick days a year. Such a program — in Ohio — would be great news for Indiana’s economy.

Service Employees International Union District 1199 is pushing an effort to get that plan on the ballot in November 2008 to help drive Democratic voter turnout, The Associated Press reports.

It would be yet another reason for businesses not to choose Ohio, but that isn’t deterring the union. We say go, brothers, get it on the ballot and get it enacted into law.

Ohio already has high taxes, a higher minimum wage and a smoking ban. Why wouldn’t the union look for one more way to keep jobs from being created there? ...

“Workers should not have to choose between a paycheck and recovery time when they get sick,” the union said in a statement.

Measures like this one will ensure the paycheck won’t even be an option for even more Ohioans and perhaps ensure that more companies like Honda and Nestle choose Indiana over Ohio as homes for their plants, much as they did with announcements last year. Again, that’d be good news for the Hoosier economy.

Let’s hope the idea doesn’t cross the state line.

I've also heard that Indiana has billboards just across the state line from Ohio that read: "Come on IN for lower taxes, business and housing costs".

Our Midwestern neighbors are salivating at the opportunity to steal our businesses and jobs if the Healthy Families Act passes in November. Do not give them the opportunity.

WIRTW #42

On August 11, I will be hosting Blawg Review. For those who are unfamiliar with it, Blawg Review is a weekly review of the best of the blawgosphere, with its hosts rotating with each issue. Because of my Blawg Review responsibilities, WIRTW will be on hiatus next week, to return on August 15. Starting Monday (8/4), however, I will begin accepting submissions for the August 11 issue of Blawg Review. If you would like one of your posts considered, please email it to me with "Blawg Review" in the subject line.

On to this week's best labor and employment law posts:

Michael Moore at the Pennsylvania Labor & Employment Blog asks a question that is near and dear to my heart - is the legal system to blame for humorless work environments?

From a legal perspective, should employees be worried about injecting humor into the workplace and is an employer’s “joke slap-down” necessary? If your humor doesn’t demean people based on their membership in a protected class, then joke away.

It is the “off-color jokes” and other “humor” related to gender, race, national origin, religion or other protected classifications that can be considered harassment. These types of comments always find their way into allegations of discrimination or harassment when a complaint is filed.

I don't think it is necessary to scrub all humor from workplace. Indeed, such a measure could do more harm than good in terms of employee morale. Michael, however, offers several good tips to assist in avoiding liability for humor that does make its way into work.

The aptly named Labor and Employment Law Blog gives us 5 reasons why companies prefer to drug test job applicants as opposed to employees.

Meanwhile, the (not so) Evil HR Lady gives some insight on drug testing from an HR perspective.

The Delaware Employment Law Blog summarizes Senator Obama's promises to working women if he becomes President.

George's Employment Blawg tells everyone how to bulletproof employee investigations.

Finally, John Phillips' Word on Employment Law gives his tip of the week on the importance of written job descriptions.

Associational Retaliation Revisited

In Thompson v. North Am. Stainless, the 6th Circuit recognized a claim for associational retaliation, holding: "Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action." This week, another court, the U.S. District Court in New Mexico, took up the same issue and reached the contrary result.

Ramona Kay Bradford, a Wal-Mart employee, filed a charge of discrimination against Wal-Mart with the EEOC. Two months later, her daughter, Robin, applied for a position at the same Wal-Mart store. Although she received positive feedback from her first interview, Robin was not called back for a second interview. At least five individuals with less schedule availability and lower qualifications were hired. Two months after Robin was rejected, Ramona's son, John, suffered the same fate when he applied for a job at the same Wal-Mart store.

In EEOC v. Wal-Mart, the EEOC alleged that Wal-Mart violated Title VII when it failed to hire Robin and John Bradford in retaliation for their mother’s Title VII charge of discrimination. The court was asked to decide whether Robin and John Bradford could sue for retaliation even though they did not personally "engage in protected opposition to discrimination" or "assist or participate in any manner in an investigation, proceeding, or hearing under [Title VII]." The EEOC took the same position as the Court in Thompson v. North Am. Stainless -- that Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also against "someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights."

The Court, however, was not persuaded:

Despite the danger that employers might retaliate against an employee’s family member and undermine the overall purpose of the anti-retaliation provision, this Court must apply the plain statutory language unless it results in "an absurd outcome that contravenes the clearly expressed intent of the legislature." ... The clear wording of [Title VII's anti-retaliation] provision limits causes of action to persons who engage in opposition or who participate in some way, even if minimally, in the protected activity. ...  And, expanding the scope of persons by whom an action can be brought beyond the clear language of the statute is not within the purview of the courts, but is the responsibility of Congress.

In other words, if Congress intended Title VII's anti-retaliation provision to reach family members of those who engage in protected activity, Congress would have said so in the statute.

This case illustrates the split on this issue among the various federal courts, a split in which the 6th Circuit is in the minority. At some point, the U.S. Supreme Court will be asked to review this issue. Until then, be mindful that associational retaliation is illegal under federal law in Ohio, Michigan, Kentucky, and Tennessee, even if other courts correctly disagree.

All hail dads

Being a new dad myself, the following headline from the National Law Journal caught my eye: More Men Filing Workplace Lawsuits - Lawyers are calling this a byproduct of the father's rights movement.

According to the article, more men than ever before are filing employment claims. The EEOC saw a record number of sexual harassment complaints filed by men in 2007, and more men are filing FMLA claims based on family responsibilities.

As more and more men assert their right to strike a balance between their jobs and their families, what steps can companies take to avoid claims being brought by disgruntled men?

1. Incorporate harassment against men into general harassment policies and training.
2. Ensure that all leave policies are gender-neutral.
3. Discipline anyone who makes derogatory comments about an employee's paternity leave.
4. Foster a work environment in which no one, male or female, is discouraged or scared from taking time off.
5. Reward actual performance, and not merely hours spent working.

Adopting some these measures in your workplace can help avoid the following, which is believed to be the largest verdict ever entered in favor of a man in a caregiver discrimination lawsuit:

New Wage and Hour Regulations Proposed by Department of Labor

Very quietly and with zero fanfare, the Department of Labor has published proposed new regulation for the Fair Labor Standards Act. The DOL's stated intent to amend regulations that have "become out of date because of subsequent legislation or court decisions." The biggest changes deal with compensatory time, tip pooling, and overtime pay for fluctuating workweeks. There will be much more on these topics if these proposals are formally adopted into the FLSA's regulations.

[Hat tip: Connecticut Employment Law Blog]