Move along, nothing to see here: DOL concludes FMLA is working

Raise your hand if you think the FMLA is working. I know I can't see you, but I have a pretty good feeling that a lot of hands will be in the air. Employees often don't understand when they are entitled to or eligible for leave, think they should have more than 12 weeks of leave, and that leave should be paid. Employers are baffled by the notice and certification process, frustrated with intermittent leave, and petrified of terminating anyone who takes FMLA leave for fear of a lawsuit. My perception, after advising clients on the FMLA for my entire career, is that the law can be a mess for everyone involved - employees and companies alike, and that no one really understands the FMLA's reciprocal duties and responsibilities.

Yet, a 181-page report published Tuesday by the Department of Labor (available in full here and in summary here), after receiving more than 15,000 comments from the public, concludes: "In the vast majority of cases, the FMLA is working as intended." The Report does confirm tension between employees' needs for intermittent leave to treat their own chronic health conditions and employers' needs to efficiently operate their businesses is the most prevalent complaint. "In some cases, the use of unscheduled intermittent leave appears to be causing a backlash by employers who are looking for every means possible ... to reduce absenteeism." It also confirms dissatisfaction with the medical certification process, in that employees don't like the time and cost of visits to health care providers to obtain certificates, and employers are frustrated with the lack of meaningful guidance to worker attendance. How can the DOL conclude that the FMLA is "working as intended", and yet at the same time report confusion and dissatisfaction with two of its most critical components, certification and intermittent leave? It's like saying the Indians played a great game last night, but their pitching was awful and the batters couldn't hit anything.

The open question is what will Congress do with this Report. Will it take the Report to mean that the status quo is fine, or will it use the Report as a means to introduce legislation that will expand upon the FMLA's protections for employees. Mandatory paid leave is certainly on this Congress's agenda. Expansion of the FMLA is a scary proposition for employers, who have a hard enough time dealing with the law as currently written. I encourage everyone to post comments here and let me know your thoughts on how the FMLA is working, and what, if anything, could be done to fix it.

Sixth Circuit holds that estoppel can bind a small employer to provide COBRA coverage

COBRA generally requires that group health plans sponsored by employers with 20 or more employees offer employees and their families the opportunity for a temporary extension of health coverage (called continuation coverage) at the employees' costs upon a job loss or other defined event. A small business should not assume, however, that merely because it has less than 20 employees that COBRA can never apply.

In Thomas v. Miller, the Sixth Circuit today held that an employer with fewer than 20 employees can be equitably estopped from arguing that it is not covered by COBRA. In Thomas, the employer unquestionably had less than 20 employees at all times during Thomas's employment. It did not offer Thomas COBRA coverage after her termination, even though it had previously such coverage to another employee. When she suffered several post-employment strokes, Thomas sued her former employer, claiming that it had failed to offer COBRA coverage to her, as it had done for another former employee. The Sixth Circuit recognized that estoppel can bind a small employer to provide COBRA coverage even if the employer falls outside of the threshold size. Thomas's claim ultimately failed because her employer had not made an representations to her:

In order for a party to employ equitable estoppel against another party, the following elements must be satisfied. First, the party to be estopped must have used “conduct or language amounting to a representation of material fact.” Second, that party must have been aware of the true facts. Third, that party must have had an intention that the representation be acted on, or have conducted himself in such a way toward the party asserting estoppel that the latter had a right to believe that the former’s conduct was so intended. Fourth, the party asserting estoppel must have been unaware of the true facts. Finally, the party asserting estoppel must have detrimentally and justifiably relied on the representation.

No one ever represented to Thomas that she would be eligible for COBRA coverage. She merely assumed that fact by eavesdropping in their small office: "Without more, inferences drawn by a party from overheard conversations about another employee do not amount to representations to or about the overhearing party." Also, because Thomas only overheard the conversations of others, the employer harbored no intent for her to rely upon any statements.

Although Thomas could not prove her right to COBRA coverage based on the specific facts of her case, Thomas v. Miller nevertheless underscores a point made in an earlier blog post: misrepresentations will come back to bite you, and companies must judiciously select their words when talking to employees about benefits.

Employment at-will fights back

Ever since the Ohio Supreme Court decided Wiles v. Medina Auto Parts five years ago, Ohio appellate courts have been chipping away at the common law wrongful discharge tort. The latest effort to give some meaning back to "employment at-will" is DeMell v. Cleveland Clinic Foundation, which held that a statute that provides only a criminal penalty, and gives no civil redress to the aggrieved employee, sufficiently vindicates the at-issue public policy so as to render a tort action over the discharge unnecessary.

Traditionally, any employer can terminate the employment of any at-will employee for any reason. In 1990, however, the Ohio Supreme Court recognized an exception in tort to the employment at-will doctrine and allowed actions for a wrongful discharge that violates public policy. To assert this tort claim, the employee must show, among other things, that the dismissal jeopardizes a clear public policy manifested in a state or federal constitution, statute, or regulation, or the common law. In 2002, the Ohio Supreme Court in Wiles v. Medina Auto Parts limited the scope of the public policies that can support such a tort claim by holding that the claim is not available if there exists any alternate means to promote the claimed public policy. The Court reasoned that if a statutory remedy that adequately protects society's interests already exists, there is no need to recognize a common law tort claim for the same purpose.

Catherine DeMell was a 30-year employee of the Cleveland Clinic. After the Clinic terminated her employment, she claimed that she was wrongfully discharged for complaining that she was underpaid and for being forced to falsify her time records. She claimed that the public policy set forth in the Ohio Minimum Wage Standards Act supported her claim. The court of appeals disagreed and affirmed the dismissal of her claim, because the specific statute provides a criminal penalty for violations. Thus, even though DeMell could not personally be made whole under that specific statute, the statute's criminal enforcement protected society's overall interest. This case is part of growing trend of Ohio courts' following the lead of Wiles, limiting the public policies that will support a wrongful discharge claim, and giving employers more latitude in terminating employees.

Everybody hates Wal-Mart

Let's suppose you own pharmacy, and your female pharmacist leaves her post unattended and permits an unauthorized underling to dispense prescriptions. You have two choices: retain the employee and risk that her recklessness will result in the incorrect filling of a prescription (which could lead to serious liability concerns), or fire the pharmacist for her recklessness. A Massachusetts Wal-Mart chose the latter, and a jury punished it the tune of nearly $2 million (including $1 million in punitives). The employee claimed that Wal-Mart discriminated against her because of her sex and retaliated against her by firing her two weeks after she asked to be paid the same as her male counterparts. Apparently, one of the key issues was the lack of a specific policy prohibiting the plaintiff's misconduct, an issue on which the plaintiff presented an expert HR consultant to testify. According to Massachusetts Lawyers Weekly, settlement was never an option because the plaintiff insisted on a term to which Wal-Mart would not even discuss, an apology.

The lessons of this case are many. Employment decision should not be based solely on whether you will be sued for it, but you are always safer if you have a specific policy on which you can rely to support the decision. The lack of a policy seems to offend juries' notions of fundamental fairness. When all else fails, sometimes the simplest things (like an apology) may go a long way to avoid a jury at all.

English-only workplaces spark lawsuits

White Americans, what?
Nothing better to do?
Why don’t you kick yourself out?
You’re an immigrant too!

– Jack White, Icky Thump (2007).

Immigration reform continues to be a hot button issue, and a recent rash of lawsuits continues to fuel the debate over whether an “English-only” rule constitutes national origin discrimination. The EEOC’s position is that a “rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment” and presumptively “violates Title VII.” According to the EEOC, an “employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.” The majority of federal courts, however, have shown some tolerance of “English-only” rules. Generally, Courts will uphold an English-only rule if the employer can show a legitimate business justification for the requirement. Examples of legitimate business justifications that have been found to justify an English-only requirement are:

• Stemming hostility among employees.
• Fostering politeness to customers.
• Promoting communication with customers, coworkers, or supervisors who only speak English.
• Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
• Facilitating a supervisor’s ability monitor the performance of an employee.
• Furthering interpersonal relations among employees.

Employers should be careful, however, to limit the reach of an English-only requirement only as far as it necessary to reach the articulated business rationale for the policy. For example, English-only requirements have been struck down as discriminatory where the policy included lunch hours, breaks, and even private telephone conversations. You should consult with employment counsel before implementing any English-language requirements in your workplace to ensure that the policy is not discriminatory as written or as applied.

Sixth Circuit opens the floodgates to federal court

I have a confession to make. I am a procedure nerd. Civil Procedure was my favorite class in law school, and cases that raise interesting procedural issues still get me excited. Putting my personal oddities aside, I still think that Klepsky v. United Parcel Service, Inc. could prove to be one of the most important cases decided this year by the Sixth Circuit, as it greatly expands the class of employment cases that can be removed from state court to federal court.
Thomas Klepsky, a Cleveland-area driver for UPS and a union member, started his lawsuit in the Cuyahoga County Court of Common Pleas, asserting Ohio statutory and common law whistleblower claims. UPS removed the case to federal court on the grounds that the federal Labor Management Relations Act ("LMRA") completely preempted Klepsky's state-law claims. Over Klepsky's objection the district court kept jurisdiction and ultimately dismissed his claims on their merits. On appeal, the Sixth Circuit, concerned over the propriety of the federal courts' jurisdiction, requested that the parties be prepared to discuss the issue at oral argument.
By way of some background for those that do not often find themselves in federal court, there are two types of subject matter jurisdiction that permit a plaintiff to originally file an action in federal court, diversity jurisdiction (where none of the plaintiffs are citizens of the same state as any of the defendants, and the amount in controversy exceeds $75,000), and federal question jurisdiction (where a claim arises under the Constitution, laws, or treaties of the United States). If a plaintiff files such an action in state court, a defendant has the option to remove it to federal court. It is no secret that employers and their lawyers usually prefer to be in federal court, and removal is often the proper implement to get there.
Typically, the availability of a defense under a federal law (such as preemption) is not enough to support removal to federal court, and a plaintiff can avoid a federal forum by pleading only state law claims and suing at least one non-diverse defendant. However, in limited circumstances, where a federal law completely preempts state law on a relevant subject matter (such as ERISA, or, as in this case, the LMRA where a claim requires the interpretation of a collective bargaining agreement), removal is proper despite the lack of a federal claim in the complaint.
Consistent with precedent, the Sixth Circuit found that Klepsky's state law causes of action did not support preemption. However, the Court, in a novel turn, held that one of the remedies pleaded by Klepsky, reinstatement, supported complete preemption and permitted removal:

We find that this single request is enough to support preemption here, as it would require interpretation of the terms of the CBA, and implicates a right created under the CBA.... Even if he does not explicitly rely on terms of the CBA pertaining to reinstatement, his request for reinstatement would, at a minimum, seem to implicate such rights and require interpretation of the CBA. For this reason, we find that preemption exists under the LMRA, and that removal based on federal jurisdiction was proper here.

Thus, because the complaint contained a boilerplate request for reinstatement, which would require an interpretation of the collective bargaining agreement (via application of seniority clauses, etc.), removal was proper.
Ignoring whether this case was decided rightly or wrongly, it nevertheless has serious implication for the availability of a federal forum to decide state law claims. Plaintiffs who are union employees will now have a difficult time defeating a removal petition. Clearly, any unionized plaintiff who prays for reinstatement will be subject to having his or her complaint removed from state court. I will be keeping a close eye on cases in this Circuit to see if Klepsky is applied to prayers for front pay (the flip side of reinstatement), prayers to be made whole, or catch-all prayers under which a court could reinstate. My prediction is that this decision will prove to a blessing to employers, who often go to great lengths to get into federal court, a curse to employees, who often try to avoid federal court like the plague, and a potential docket clogging disaster to the district courts, who will most likely see their already heavy caseloads become that much busier.

Proceed with caution if docking employees' pay

Eve Tahmincioglu of msnbc.com has posted this article, in which she advises employees, "Employers can legally reduce salary, fine workers for infractions." She states that more employers are fining employees or docking their pay as a means to control employees and better enforce work rules. Nevertheless, I caution that anyone reading this blog tread very carefully before adopting this advice for your company. While such a practice is permitted under the federal Fair Labor Standards Act, I have grave concerns as to whether it would pass muster under Ohio's wage payment statute. The Ohio law only permits paycheck deductions in certain specific circumstances, none of which on their face cover disciplinary docking of pay.

Moreover, this practice also raises issues under the FLSA. Docking exempt employees' pay could jeopardize their exempt status. You do not want to put an employee's exempt status in jeopardy under any circumstances, for fear of owing back overtime for any hours worked in excess of 40 for all work weeks for up to two years. Such a mistake could prove very costly.

Employers who are considering docking employees as discipline for work rule violations should not do so without having their counsel draft a carefully worded document for employees to sign that explains the penalties and authorizes the deductions from their wages. Companies should also consider the effect such a program could have on employee morale and retention.

Supersized lawsuits: obesity-related claims expected to rise

According to this article in last week's USA Today, employers can expect discrimination claims based on obesity to rise. The article cites 400-pound Stephen Grindle, an Ohio truck driver fired because of his weight, and 325-pound Michael Frank, a New York teacher denied tenure after his boss described him as "so big and sloppy," as examples of an emerging trend by the obese to try to claim protection under the ADA as "disabled." According to the EEOC, those that are morbidly obese (more than 100 pounds overweight) should be entitled to protection under the ADA as disabled. By comparison, more than 32% of the adult population is categorized as "obese" (more than 30 pounds overweight). Few of these claims have been brought under the ADA, and they rarely if ever succeed. Because of this increased awareness and publicity, coupled with the expanding American waste band, this type of claim should be on employers' radar screens. Moreover, because obesity can be caused by a medical condition (such as a thyroid problem) or cause a medical conditions (such as diabetes), employers must be careful not to discriminate against the underlying medical issue or fail to reasonably accommodate it if necessary.

Home care workers denied overtime

Even though I'm busy sunning and golfing and relaxing, the blog never rests. The front page of the business section of the Hilton Head Island Packet caught my eye.

The Supreme Court yesterday upheld the right of the Department of Labor to exclude home care workers from overtime pay under the Fair Labor Standards Act. While this case has a narrow impact, I'm sure it's a huge relief to employers of home health workers, who could have been economically crippled if the decision went the other way.

Supreme Court adopts recklessness standard for willful Fair Credit Reporting Act claims

In the employment context, the federal Fair Credit Report Act ("FCRA") requires specific notice and consent before an employer can conduct a background check on an applicant or employee, and pre-adverse action and adverse action notices before a company can take an adverse action (refusal to hire, termination, demotion, etc.) against an applicant or employee. If this language is foreign to you, you should contact your employment counsel to ensure that your application process complies with this law. Compliance is important, because there are damages and penalties, including attorneys' fees and costs, available for an aggrieved individual. For a negligent violation, a plaintiff is entitled to additionally recoup actual damages only. For a willful violation, the panoply of available damages expands to include statutory penalties and punitive damages.

In a potentially employee-friendly ruling, the Supreme Court has ruled that a willful violations of the FCRA do not merely cover intentional and knowing violations, but also reckless violations. The Court distinguished between civil law, where "willfulness" nearly always includes a component of recklessness, and criminal law, where it requires purpose and intent. The Court then adopted the common law definition of recklessness - an objectively assessed high risk of harm. By blurring the distinction between negligence and willfulness by injecting an aspect of reasonableness into the damages calculus, the Court has made it potentially more difficult for employer to avoid the higher damages that go along with a finding of willfulness.

For a copy of the Court's decision, see Safeco Insurance Co. of America v. Burr.

Immigration Reform Bill Would Overhaul Employee Verification Process

Everyone should be familiar with the I-9 form. With that form, employers simply review certain identification documents submitted by job applicants to assure the government they appear to be valid and the person appears to be authorized to work in the U.S. An immigration reform bill pending in the Senate, however, would radically overhaul that system by requiring employers to verify electronically the identity of all U.S. workers, no matter how long they have been at their job. Employers who don't comply would be subject to fines, while employees rejected by the government database would have to challenge its accuracy to keep their jobs. If the bill becomes law, employers would have 18 months to comply for all new hires, and three years for all current employees. Not surprisingly, the proposal has drawn complaints from business and civil liberties groups. I will let everyone know if and when this bill becomes law.

Hustling into court

Law.com has issued its annual list of the top 10 examples of workplace wackiness. My personal favorite is number 10, which answers the age old question of whether you can be subjected to a hostile work environment if you choose to work for Larry Flynt:

The California Superior Court in Los Angeles has certified an arbitrator's decision that Hustler magazine publisher Larry Flynt must pay $1.1 million to a former secretary who alleged that having to comply with Flynt's trysts with prostitutes in his private office created a hostile work environment. Elizabeth Rene Raymond alleged that she had to participate in an "early warning system" when Flynt's wife was approaching the executive offices during one of these trysts.

For the full list, go here.

Ohio Supreme Court Recognizes Claim for "False Light" Invasion of Privacy

Historically, Ohio recognizes three separate invasion of privacy torts: (1) the unwarranted appropriation or exploitation of one’s personality, (2) the publicizing of one’s private affairs with which the public has no legitimate concern, and (3) the wrongful intrusion into one’s private activities. Today,the Ohio Supreme Court, in Welling v. Weinfeld, recognized a fourth invasion of privacy theory as a tort in Ohio -- the "false light" theory. In so ruling, Ohio joins the majority of other jurisdictions that have recognized this tort.

Under the false light theory, it is a tort to give "publicity to a matter concerning another that places the other before the public in a false light ... if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." The purpose of this theory is to close a loophole in the defamation laws, which protect reputation in the community by publication of falsehoods. The false light theory, conversely, protects one's own personal sensibilities. By way of example, the Court cited to several examples of conduct that would be actionable as a false light invasion of privacy but not necessarily as defamation, such as falsely portraying someone as a victim of sexual harassment or having a terminal illness. Such false accusations might not damage one's reputation, but nevertheless could cause them harm that is not remedied by defamation law.

While this theory of recovery is new, the lessons to be learned are not. Be very mindful of information that is spread in your workplace and about your employees. Private matters, such as medical information, investigations of misconduct, or other personnel matters, should remain private. Negative job references should rarely be given. These proactive measures will help lessen the risk of claims of this ilk being brought.

Can't get away from the office

I'm off to vacation starting Friday, and the blog will be going on a brief one-week hiatus. Do vacations even exist anymore? According to Monday's Chicago Tribune, the answer may be no. The article cites a survey from earlier this year by WorkPlace Media, which found that 81% of us check our work-related e-mails or voice mail while on vacation. Of course, this tethering to the office is made much easier by the proliferation of Blackberries and Treos. I know I will be hooked to my Treo from Hilton Head (much to the chagrin of my family) so that I can stay on top of the myriad balls that will inevitably be in the air when I'm out of town.

Our Blackberried workforce raises another interesting question: is time spent outside the office e-mailing from a Blackberry compensable time under the Fair Labor Standards Act? According to a recent article by Jeffrey M. Schlossberg, Adjunct Professor of Law, Hofstra Law School, time spent outside the office may very well be compensable time, requiring the payment of overtime for non-exempt employees. Mr. Schlossberg correctly argues that because employers provide these technological tools with the understanding that employees will use them during off-work hours, the time spent is probably compensable, subject to a regulation that de minimus time is not necessarily covered. Those of us with smart phones know, however, that the time spent using them is never de minimus, and often obsessive.

For companies that provide Blackberries and other portable e-mail devices to their employees, this issue is one that is definitely worth considering in your next wage and hour audit.