Posted on February 21, 2011 by Maria Danaher

Employee's failure to respond to phone calls from employer regarding his request for FMLA leave precludes a claim against employer under that Act.

Most employers recognize that the Family and Medical Leave Act (FMLA) prohibits them from denying, restraining, or interfering with an employee’s rights to qualified leave. Last week’s Update addressed a situation in which an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with that employee’s FMLA rights. (Terwilliger v. Howard Memorial Hospital). In contrast, this week’s case involves a company whose repeated but unanswered calls to an employee regarding his request for FMLA leave formed the basis of that company’s successful motion for summary judgment in the case. Righi v. SMC Corp. of Am., 7th Cir., No. 09-1775, 2/14/11.

Robert Righi worked as a sales representative for SMC Corporation’s Aurora, Illinois office. Righi worked primarily from his home in Henry, Illinois, but was expected to check in with his sales manager, Louis King, on a daily basis. Righi lived with his elderly mother, an insulin-dependent diabetic who often required medical attention, and a roommate. On occasion, Righi requested vacation time off in order to care for his mother. He made these requests to King by e-mail, consistent with SMC’s policy that required an employee to obtain prior approval from a supervisor before taking leave. The Company’s attendance policy stated that an employee’s failure to report for work for two consecutive days without notifying a supervisor was grounds for termination.

Righi was scheduled to attend a two-week training session in Indianapolis from July 9 through July 21, 2006. On July 11, while at the session, Righi received a phone call informing him that his mother had gone into a diabetic coma. Righi told a co-worker that he was leaving to return home, and asked the co-worker to pass along the information. By the time that Righi had completed the four-hour drive to his home, his mother had stabilized. At no time on that day did Righi contact King, although King made numerous unanswered calls to Righi’s cell phone, which had been switched off.

The next morning, Righi sent an e-mail to King, explaining that he had left the training session to attend to his mother. In that e-mail, he asked for “the next couple of days off.” Upon receiving the e-mail, King attempted to reach Righi, via his Company cell phone and home phone, but without success. King did leave at least one qrequest for a call back with Righi’s roommate, who passed that request to Righi. Righi did not return to work – not did he contact King again – until July 20, nine days after leaving the training session. Righi was fired for violation of the Company’s leave policy. Righi filed a lawsuit alleging violation of the FMLA. The district court granted summary judgment in favor of SMC, and that decision was upheld by the 7th U.S. Circuit Court of Appeals.

Once an employee invokes his rights under the FMLA by alerting his employer to the need for leave, the employer has the burden to take certain affirmative steps to process the leave request. The employer has a duty to make further inquiry if additional information is needed in order to process the request. In this case, there is no dispute that SMC attempted to carry that burden to inquire further - King’s numerous phone calls to Righi’s cell phone and home phone were documented, but were not answered for nine days, far longer than the two days allowed under SMC’s policy. According to the Court, “Righi’s failure to respond to these calls or otherwise contact his employer dooms his FMLA claim.”

While employers have specific obligations under the FMLA which are not obviated by this decision, employers also are entitled to notice about the anticipated timing and duration of a requested leave under the FMLA. Without such notice, Righi was not entitled to FMLA protection for his absence, and his termination was appropriate. According to the Court, if an employee is unable to determine how much leave will be needed, “the employee must at least communicate this fact to the employer with an estimate of the likely duration of the requested leave.” However, employers also should not overlook the fact that the primary underpinning for this decision was SMC’s persistent efforts to reach Righi to clarify his request for leave.
 

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Posted on February 14, 2011 by Maria Danaher

Employer's frequent calls to employee during FMLA may create interference with that leave.

Under the Family and Medical Leave Act (FMLA), an employer is prohibited from denying, restraining, or interfering with an employee’s rights to qualified leave. One federal court recently found that an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with the employee’s FMLA rights. Terwilliger v. Howard Memorial Hospital, WDAK, No. 09-CV-4055, January 27, 2011.

The FMLA provides to eligible employees up to 12 weeks of unpaid leave for qualifying conditions, and precludes employers from interfering with an employee’s rights under the Act. Under the regulations associated with the Act, interference includes “discouraging” an employee from using FMLA leave.

Regina Terwilliger was employed as a member of the housekeeping staff at Howard Memorial Hospital in November 2008 when she applied for FMLA leave. Her application was granted on November 26, 2008; Terwilliger underwent back surgery on January 29, 2009. During her recovery, Terwilliger received weekly phone calls from her immediate supervisor, asking for a return to work date. According to Terwilliger, she felt “pressured” into returning and, in fact, during one call, asked her supervisor if her job was in jeopardy. The supervisor simply replied that Terwilliger should return to work “as soon as possible.” Terwilliger returned to work on February 16, 2009, less than three weeks after her surgery.

In October and November, 2008, four Hospital employees had money stolen from their desks or lockers. In December, Hospital management placed a camera in one office area. On March 9, 2009, in spite of the fact that Terwilliger was not assigned to clean that particular office, she was caught on tape opening a desk drawer, looking into it, and closing it without removing anything from the drawer. She then was terminated, along with another housekeeping employee who also was caught on tape removing something from the desk drawer and placing it into her pocket.

Terwilliger filed a lawsuit claiming violation of FMLA. She alleged that she was denied the full benefit of her leave, because she was pressured to return to work after her surgery. She also claimed that she was fired in retaliation for taking FMLA leave. The hospital filed a motion for summary judgment, arguing that Terwilliger was released by her doctor to return to work, and that she was not deterred from taking her full 12-week FMLA leave. It also argued that its reason for firing Terwilliger was based upon a legitimate business reason – the violation of its policy against stealing.

In spite of Terwilliger’s protests that she had not stolen anything and that, therefore, the Hospital retaliated against her by firing her, the district court held that the relevant inquiry was whether the Hospital’s articulated reason for Terwilliger’s termination was a pretext for retaliation, and not whether Terwilliger actually did what she was accused of doing. The court granted summary judgment on the retaliation claim. However, it denied summary judgment on the interference claim, holding that the supervisor’s weekly phone calls to Terwilliger may have discouraged her from fully exercising her rights under the FMLA. Therefore, a jury will have to decide that claim.

Employers should understand the administrative complexities of the FMLA, and must recognize the limitations that the Act imposes on employers. While there is no prohibition on obtaining information related to the anticipated length of a leave under the FMLA, it is unwise to over-communicate requests to return to work which, as seen in this case, could be viewed as possible interference with an employee’s rights.
 

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Posted on February 8, 2011 by Maria Danaher

NLRB complaint based upon Facebook posts as "concerted activity" is settled prior to hearing.

In November 2010, the National Labor Relations Board (NLRB) announced its plans to prosecute a complaint issued by a Connecticut regional office regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleged that the employer, an ambulance service, maintained and enforced overly broad and restrictive policies regarding blogging and Internet postings outside of work.

The incident on which the NLRB’s complaint was based began when an employee posted a negative comment about her supervisor on her own Facebook page, using her own home computer to do so. The comment elicited supportive responses from co-workers, and led to further negative comments from the employee herself. When the company learned of the comments, it fired the employee, stating that the postings violated the company’s internet policies. The NLRB investigated the situation, ultimately determining that the Facebook postings were “concerted activity,” protected by federal law. Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms and conditions of their workplace and employment, and the NLRB argued that restricting an employee’s personal use of Facebook and the Internet to communicate with co-workers outside of work was a violation of Section 7.

On February 7, 2011, the NLRB announced that a settlement between the employer and the NLRB had been approved. The terms of that resolution include a revision of the company’s policies to ensure that they do not improperly restrict the rights of employees to discuss wages, hours, and other working conditions. The company also has agreed that it will not discipline or fire employees for engaging in such activity in the future. It should be noted that the company’s position throughout this matter has been that the individual who authored the Facebook postings was fired “based on multiple, serious complaints about her behavior,” and not simply because of the postings. The settlement of this matter includes a separate, private settlement between the company and the individual employee, the terms of which have not been made public.

Both union and non-union employers should recognize that the NLRB’s allegation regarding the company’s internet policy is one that could be brought against any employer on the basis of a written policy, even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is discussing the personal character of a particular supervisor.

While this case was resolved without a public hearing and, it is presumed, to the mutual satisfaction of the parties, employers who implement restrictive policies related to employee interaction and communication risk the high-profile, expensive, and disruptive circumstance in which this company found itself. Therefore, companies should take care to draft employment policies that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to effect positive change in the terms and conditions of the workplace.
 

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