Company’s “point-reduction” program to erase absence points may violate FMLA.

An employer instituted a no-fault attendance policy which allowed employees’ absence points to be reduced for each 30-day period of “perfect” attendance. An employee sued the company, based on the claim that his intermittent FMLA leave kept him from fully participating in that program.

The lower court agreed with him, but the U.S. Court of Appeals for the Sixth Circuit reversed the lower’s court’s decision, stating that the point reduction for perfect attendance may have interfered with the employee’s FMLA rights. Dyer v. Ventra Sandusky, 6th Cir., 18-3802, August 8, 2019.

Facts of the case:

  • Plaintiff Dyer worked for Ventra Sandusky, an automotive supplier, as a full-time Technician;
  • Dyer suffers from migraine headaches, which prevent him from working on multiple days each month;
  • Ventra Sandusky granted intermittent leave for those absences;
  • Ventra Sandusky has a no-fault attendance policy under which employees are assessed points for absences;
  • An individual’s employment is terminated if 11 or more points are accumulated;
  • Dyer did not receive points for his FMLA absences, but received points for other absences, excused and unexcused;
  • Ventra Sandusky allows employees to reduce accrued points, subtracting one point for each rolling 30-day period of “perfect attendance”;
  • The perfect attendance calculation is interrupted if an individual is absent for any reason, other than “Vacation, Bereavement, Jury Duty, Military Duty, Union Leave and Holidays,” none of which stop the 30-day clock;
  • In other words, those absences were counted as days “worked” for purposes of the point reduction program, and did not reset the running of the 30-day clock back to day 1;
  • However, the point reduction schedule did not count FMLA leave or other unpaid disability leaves as days “worked” toward the 30-day perfect attendance goal, so those absences did reset the 30-day clock;
  • While the company did not add points for absences due to FMLA, it classified FMLA leave as an absence that reset the 30-day clock back to day 1 after the absence;
  • Dyer was terminated for accumulating 12 points under the attendance policy;
  • He sued the company, alleging that because his FMLA absences kept him from enjoying the same benefit that certain non-FMLA employees received (an uninterrupted 30-day attendance period), the company was interfering with his FMLA rights;
  • The lower court dismissed the lawsuit, finding that because all employees on medical-related leaves were treated equally, Dyer could not support his FMLA interference claim;
  • That finding was reversed on appeal by the Sixth Circuit.

The Sixth Circuit cited to the language of the statute which says specifically that “[a]t the end of an employee’s FMLA leave, benefits must resume in the same manner and at the same levels as provided when the leave began.” In other words, Dyer’s leave could suspend the accrual of attendance days, but could not reset it to zero; when he returned to work, Dyer would begin to accrue days at the point at which he had left off.

According to the Court, “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.” It found that resetting Dyer’s perfect attendance clock every time he took FMLA leave “effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed.”

In essence, the Court found that Dyer was prejudiced by the policy because his ability to remain employed hinged on not taking FMLA leave, thereby interfering with those rights. The Court reversed the lower court’s decision and remanded the case back for a jury trial, pointing out that “a jury could find that Ventra Sandusky’s no-fault point-reduction scheme interfered with Dyer’s right to take FMLA leave and be restored to an equivalent position with equivalent benefits . . . upon return to work.”

This case underscores the important principal that employees on FMLA must be treated as if they have not left the workplace; their conditions of employment – with very few exceptions – must return to the level at which the employee left them at the initial time of leave.

The World Health Organization is focusing attention on workplace burnout, and so should employers.

Workplace burnout has been designated by the World Health Organization (WHO) as an “occupational phenomenon.” Employers should begin to formulate and implement mechanisms for dealing with the issue.

The World Health Organization:

WHO is headquartered in Geneva, Switzerland, and is a part of the United Nations that focuses on global health issues. The WHO has been working since 1948 on such issues as immunizations, health education, and smallpox and polio eradication. The United States is one of the nearly 200 members of that worldwide organization.

The original Preamble of the WHO’s Constitution – which remains unchanged, over 70 years later – defines health as a state of “complete physical, mental and social well-being and not merely the absence of disease or infirmity.” To support that definition, the WHO maintains the International Statistical Classification of Diseases and Related Health Problems, often referred to as the ICD.

The International Statistical Classification of Diseases and Related Health Problems:

The ICD was designed to: map all health conditions (both mental and physical); classify those disorders; and provide diagnostic assistance with respect to those conditions. It currently is the most widely used statistical classification for diseases and disorders in the world. The most recent version of the ICD – the 11th – was accepted by WHO’s governing body on May 25, 2019, and becomes effective as of January 1, 2022.

ICD-11 includes the term “burn-out” as an occupational phenomenon (but not as a medical condition). It defines burn-out as: “a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed.” Employers should note that in the ICD-11, burn-out is defined exclusively within the occupational context.

In addition, the three dimensions of burn-out as set forth in the ICD-11 provide a roadmap to employers who are sincerely concerned about employees’ mental health and well-being. Employees moving toward burn-out are experiencing:

  • Feelings of energy depletion or exhaustion;
  • Increased mental distance from one’s job, or feelings of negativism/cynicism related to the job; and
  • Reduced professional efficacy.

What can employers do?

While WHO has stated that it is “about to embark on the development of evidence-based guidelines on mental well-being in the workplace,” none have been proposed yet. For now, then, it is up to employers to become more knowledgeable about work-related stress and its effect on productivity and healthy workplaces. Here are five “best practice” tips for employers who want to assure a mentally healthy workforce, and a legally compliant workplace:

  • Become aware and be able to discuss the symptoms and consequences of stress-related burnout, and environmental factors that may exacerbate it;
  • Determine which federal employment laws apply to requests for accommodation and leave regarding mental health and stress-related issues;
  • Understand the applicability of the ADA’s mandatory “interactive process” for accommodation of stress-related conditions and the applicability of the FMLA’s “serious health condition” requirement;
  • Establish legally compliant methods for returning an affected employee to work after a stress-related leave; and
  • Implement written policies and procedures to identify and minimize stress-related burnout, and assure legal compliance with those efforts.

 

Artwork from Headspace, the mindfulness and meditation app, found at www.headspace.com.

What Should Employers Know About Minimum Wages in 2019?

The “minimum wage” is the minimum hourly wage that an employer must pay to a covered nonexempt employee for work, and is set by federal, state, and local law. The current federal minimum wage, which was set in 2009 under the Fair Labor Standards Act (FLSA), is $7.25/hour.

States are able to set their own minimum wages, independent of the federal government’s $7.25/hour, and frequently set that number at a higher rate than the federal amount. As of January 2018, more than half of states had minimum wages higher than that federal minimum.

Multiple states have made long-term plans to significantly raise minimum wage rates. For instance, California and Massachusetts each will increase its minimum hourly wage to $15.00 by 2023. Other states are raising their rates incrementally over a shorter period of time. Colorado, for example, has raised its minimum hourly rate by $.90 each year to a final $12.00 in 2020.

Adding to the mathematical and legal issue inherent in these differing numbers, certain local governments have enacted minimum hourly wages that exceed their state minimums. Seattle, Washington is one example. In 2014, that city enacted an ordinance which will increase the minimum wage there to $15.00 an hour, phased in by 2021. Since Seattle’s ordinance, a number of other cities have enacted $15.00 hourly minimum wages, including San Francisco and New York City. However, 25 states have passed laws that restrict local governments from setting minimum wages that differ from the state’s own minimum.

The 2019 updates to state and local minimum wage rates have been compiled in a convenient and accessible format by Chuck McDonald, shareholder in Ogletree Deakins’ Greenville, SC office, and can be found here.

While the minimum wage has become more and more politicized, it still is a matter of legal compliance of which employers should be aware. It is worth noting, as part of that compliance effort, that every employer of employees subject to the FLSA must post, in a “conspicuous” place, a notice explaining that Act. The content is proscribed by the Wage & Hour Division of the Department of Labor, and is available on the DOL’s website.

Think it’s okay not to provide a reason for termination? Think again.

Some employers operate under the assumption that “at-will” employment means that an employee does not have to be given any reason for termination of his or her employment. However, that theory may allow an employee to overcome an employer’s motion to dismiss a discrimination lawsuit, since in order to overcome such a motion, a plaintiff simply has to set forth facts sufficient to state a “plausible” claim for relief. That standard means that a plaintiff can set forth claims that would allow the court to draw inferences of discrimination, because of the absence of documentation or other evidence to the contrary.

A court clinician who specialized in placing individuals into drug treatment programs has avoided dismissal of her sexual harassment claims against a drug court judge and against the behavioral health network that put her into the court clinician job, after being removed from her position. (Tammy Cagle v. Thomas Estes & Behavioral Health Network, Inc., U.S District Court for the District of Massachusetts, Case No. 3:18-cv-10123, Aug. 22, 2018.)

Facts of the Case:

Tammy Cagle, a licensed social worker, applied to Behavioral Health Network (BHN) in June of 2016 for the position of specialty court clinician to the Pittsfield, Massachusetts drug court. BHN was under contract with the state’s Department of Mental Health (DMH) to fill that position. In July 2016, Judge Thomas Estes, the presiding judge of the Pittsfield drug court, approved Cagle’s hiring after meeting with her. Estes was Cagel’s sole supervisor from July through November 2016. After that, and during the period until March 2017, Cagle had other supervisors, but Estes was her only “consistent” supervisor.

Cagle alleges that in beginning in August 2016, Estes directed her to meet alone with him in chambers, and that she was the only drug court team member that did so. She also alleges that Estes acted inappropriately with her on various occasions, including one incident in a hotel room during a work-related conference. Cagle claims that after that incident, Estes told her that if anyone found out about their encounter, it would “be worse” for her in drug court. Cagle never reported Estes’ conduct to BHN.

Between December 2016 and March 2017, Cagle’s clinical supervisor from BHN met with her frequently, and both he and BHN’s Director of Forensics praised Cagle’s job performance on multiple occasions. In addition, on March 16, 2017, Judge Estes specifically indicated to BHN that Cagle was a “top-notch clinician.”

However, on March 17, 2017, Cagle received a call from BHN’s Director of Forensics, saying that as the result of a complaint being filed against her, Cagle was being placed on administrative leave immediately and was not permitted to return to the drug court. No details were provided, and the identity of the source of the complaint was not revealed. Cagle immediately texted Estes, who denied knowing anything about the situation.

Four days later, Cagle was reassigned to a non-drug court position, and at a lower salary. Subsequently, Estes reportedly criticized Cagle’s previous work, telling BHN that Cagle had “no people skills” and that court staff had made “many complaints” about her. On April 18, 2017, Cagle resigned her position.

Cagle’s Motion to Dismiss:

In response to Cagle’s federal court complaint against both BHN and Judge Estes, BHN filed a Motion to Dismiss. The district court denied that motion, allowing the case to proceed.

In order to prove employer liability (whether against an individual employer or a joint employer), a plaintiff must show that the employer knew or should have known of the discriminatory behavior being complained of, and that the employer failed to take prompt corrective measures within its control.

The same standard applies to an employer whose employee has claimed to have been harassed by a non-employee.

Therefore, in Cagle’s case, the issue was whether or not Cagle’s federal court complaint sufficiently alleged that BHN knew or should have known about the hostile work environment caused by Estes.

The District Court’s Decision:

Importantly for purposes of a Motion to Dismiss, the law does not require that a plaintiff herself bring alleged misconduct to the employer’s attention, so long as the employer has notice. Here, the district court determined that Cagle’s complaint “plausibly raises the possibility that BHN knew or should have known of the sexual harassment.”

It based that determination on the fact that in spite of earlier compliments from BHN on Cagle’s performance, and the absence of negative evaluations in Cagle’s personnel file, BHN informed Cagle that she was being removed permanently from her drug court position, while refusing to describe the alleged “multiple complaints” upon which that action was being taken. However, they allegedly did inform Cagle that her removal from the position partially related to a decision on her part to incarcerate a criminal defendant while he waited for a bd in a drug treatment program. In reality, however, Judge Estes made actual decisions related to sanctions for drug defendants, including incarceration.

Based on those facts, along with the timing of the March 16 accolade from Estes (Cagle was a “top-notch clinician”), and the March 17 placement on administrative leave with subsequent removal from the drug court, the district court found an inference that “BHN’s stated reason for Plaintiff’s removal from the drug court was not the real reason, or the whole reason, for ending the assignment,” and denied the Motion to Dismiss.

The court in this case quoted the First U.S. Circuit Court of Appeals in Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 18 (1st Cir. 2011): “The lack of any plausible alternative justification for the plaintiffs’ terminations makes the inference of . . . discrimination from the facts alleged more reasonable.” In other words, the combination of “abundant facts” of sexual harassment, in combination with the timing of Cagle’s discipline, created an inference sufficient to allow Cagle’s case to go forward.

At-Will Employment Doctrine:

Many employers interpret “at-will” employment to mean that they do not have to provide a reason for termination, as long as they do not believe the action to have been based on discrimination. However, that is not the legally safest interpretation. Employers should recognize that before disciplining or terminating an employee, supporting facts for that action should be carefully reviewed and documented to assure consistency and a clear decision-making process that will withstand legal scrutiny.

Is full-time presence at work an essential function of a job? One federal circuit says No.

The Americans with Disabilities Act (ADA) requires that employers reasonably accommodate employees with disabilities, including allowing modified work schedules when appropriate. One federal appellate court has addressed that issue, overlaid with the question of accommodating an employee’s postpartum depression after FMLA leave, and has held that a lower court wrongly concluded that full-time presence was an essential function of the employee’s position. Hostettler v. College of Wooster, 6th Cit., No. 17-3406, July 17, 2018.

Heidi Hostettler was fired by her employer, the College of Wooster, while recovering from postpartum depression and separation anxiety after the birth of her child. Because of her condition, Hostettler was unable to return to her job in the college’s HR Department on a full-time basis after a leave of absence.

Here are the facts, as viewed by the courts:

  • Hostettler was hired as an HR Generalist by Wooster in late summer 2013;
  • During the interview process, Hostettler informed Wooster that she was pregnant;
  • Wooster’s practice was to allow a new employee 12 weeks of unpaid maternity leave under the Family and Medical Leave Act (FMLA), even if the employee did not otherwise qualify;
  • Until the birth of her child in February 2014, Hostettler worked full-time, typically from 8:00 a.m. until 5:00 p.m., with some calls and emails during off hours and weekends;
  • Hostettler was never criticized, reprimanded, or disciplined prior to the birth of her child;
  • From February to April, Hostettler took 12 weeks of unpaid maternity leave;
  • Toward the end of her leave, Hostettler was diagnosed with severe postpartum depression and separation anxiety;
  • Believing that Hostettler was suffering from “one of the worst cases of separation anxiety” that he had seen, Hostettler’s doctor provided a restriction that Hostettler return on a part-time basis only, working a total of two or three days a week;
  • Hostettler’s supervisor (Beasley) agreed to that accommodation, suggesting that Hostettler work 5 half-days per week;
  • Hostettler agreed, and returned to work in late May on that schedule;
  • Hostettler’s performance evaluation, conducted in July 2014, contained no negative feedback, and referred to Hostettler as a “great colleague and a welcome addition to the HR team!”;
  • However, Beasley felt that Hostettler’s part-time schedule was beginning to put a strain on the rest of the department;
  • That perception was not shared by Hostettler’s co-workers, one of whom submitted an affidavit saying that Hostettler could accomplish work from home – a common practice in the department – and knew of no assignments or programs that Hostettler had failed to complete “professionally or timely” on her part-time schedule;
  • Hostettler was never criticized, reprimanded, or disciplined during the period of her part-time work;
  • In mid-July, Hostettler submitted an updated medical certification estimating that she could return to a full-time schedule in early September;
  • The day after receiving that updated certification, Beasley fired Hostettler on the premise that the department could not function appropriately unless Hostettler could return to full-time work immediately;
  • Hostettler’s position was not filled until October;
  • Hostettler sued Wooster, claiming violation of Title VII’s Pregnancy Discrimination Act (PDA), the ADA, and the FMLA.

The district court granted Wooster’s motion for summary judgment on all claims on the basis that full-time presence was an essential function of the HR Generalist position. The district court held that because Hostettler could not satisfy that essential function or suggest a reasonable accommodation that allowed her to meet that essential function, Hostettler was not a “qualified individual” protected by the ADA. That initial conclusion also formed the basis of the district court’s remaining analysis.

On appeal, the U.S. Court of Appeals for the 6th Circuit disagreed, reversing the dismissal and remanding the case back for trial on all issues. According to the Sixth Circuit, the district court wrongly concluded that full-time presence was an essential function of Hostettler’s position. First, Hostettler was able to point to two employees who had received longer period of medical leave for non-pregnancy conditions. Further, and importantly, the Court held that an employer “cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule.” Without that, an employer is not relieved of its ADA responsibilities.

There’s an important lesson here: to avoid summary judgment on the “full-time presence as an essential function” issue, an employer must specifically tie time-and-presence requirements to some other work-related requirement, and optimally should have documentation of the same. Because Wooster failed in that regard – and simply said that Hostettler’s absence was “putting a strain on the department” – the case will go back to the district court for trial.

 

 

If You Don’t Know What GDPR Stands For, It’s Time to Find Out . . . .

The European Union’s General Data Protection Regulation (GDPR) became effective on May 25, 2018. Companies have been working to understand the significance of those new rules, and to determine their effect on US companies.

The purpose of the GDPR is to harmonize certain data privacy laws within the European Union (including the UK, for now). But it also covers businesses outside of the EU to the extent that those businesses sell goods or services – or even offer to sell, or market the sale of goods or services – to EU residents. It also applies to businesses that “monitor” EU residents, regardless of the location of those businesses.

While compliance with the GDPR is going to take the coordinated effort of companies’ leaders, legal officers, and human resources departments (one of the highest risk areas for GDPR compliance will be the processing of human resources data), here are some basic facts to support the effort to understand the GDPR:

  • The GDPR applies to large corporations that collect, use, or even simply analyze “personal data” of EU resident consumers – but the regulations also apply to businesses with as few as a single EU customer or user;
  • “Personal data” is defined as including phone numbers, email addresses, location data, and/or any other identifier that would directly or indirectly point to a particular individual;
  • The GDPR does not apply to “anonymous information,” defined as information that does not relate to an identified or identifiable natural person (for example, for statistical or research purposes);
  • Whether the GDPR applies to an individual is determined not by citizenship, but by the individual’s residential location – for example, a US citizen residing in France would be included, but a French national living in the US would not;
  • A company covered by the GDPR must use “plain language” to explain to its users its collection methods and use of personal data, and must specifically state how long such data will be retained;
  • Affected companies must provide to EU resident users a way to (1) access and, at the individual’s option, correct/delete data; and (2) object to the use of particular data;
  • Companies or organizations also can be held liable for EU personal data misused by their business partners;
  • The regulations allow for a private right of legal action within the EU for violation of the rules, which means that companies outside of the EU that violate the GDPR could face legal actions within the court of an EU Member State based on as little as a single violation; and
  • The requirements for obtaining consent under GDPR are specific and onerous, and consent may be withdrawn by the data subject.

While these facts are only a portion of the information that should be reviewed and understood by companies who may be affected by the GDPR, there are many informative websites and articles available to assist in that compliance effort. Check out these 5:

Consider some other resources, from Ogletree’s blog on the topic:

https://ogletree.com/shared-content/content/blog/2018/may/employers-of-all-sizes-must-maintain-article-30-records-of-processing-for-human-resources-data

https://ogletree.com/shared-content/content/blog/2018/april/eu-regulator-discusses-enforcement-priorities-for-the-gdpr

https://ogletree.com/shared-content/content/blog/2017/december/the-highest-risk-area-for-gdpr-compliance-processing-hr-data

https://ogletree.com/shared-content/content/blog/2017/july/eu-regulators-issue-an-updated-opinion-on-processing-data-in-the-workplace

https://ogletree.com/shared-content/content/blog/2015/december/europeans-agree-on-new-data-privacy-laws

If GDPR applies to your company, it is imperative to make good faith efforts to comply. Get started by making yourself knowledgeable through the available channels, developing a to-do list, and then assuring that it gets implemented appropriately. Good luck.

 

Thanks to Dani Vanderzanden from the Data Privacy Practice Group of Ogletree Deakins for her contributions to this article.

Image taken from eu gdpr portal.

Opinion Letters Are Back, and Employers Should Pay Attention.

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issues guidance to employers and individuals through Opinion Letters, Ruling Letters, Administrator Interpretations, and Field Assistance Bulletins. An “Opinion Letter” is an official written opinion by WHD of how a particular law that WHD enforces applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion.

In 2010, the DOL abandoned the use of Opinion Letters, and Administrative Interpretations (AIs) took their place. Rather than responding to employer questions, the AIs essentially consisted of declarations of the administration’s position on various issues related to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The AIs – which came very infrequently – did not provide detailed answers to employers’ questions about day-to-day administration of the Fair Labor Standards Act FLSA and FMLA. From 2010 to 2016, the DOL issued a total of just seven AIs on the FLSA and two on the FMLA.

On June 27, 2017, the DOL resumed issuing Opinion Letters. These guidance letters from the WHD’s Administrator (or an Acting Administrator) provide a potential good faith reliance defense for actions that otherwise may constitute violations of law. In other words, an employer may act in reliance on a DOL Opinion Letter when making employment decisions regarding the certain federal laws on which Opinion Letters have been issued, specifically including the FLSA.

Keeping this fact in mind, employers should be aware of two new Opinion Letters issued on April 12, 2018 by Bryan L. Jarrett, Acting Administrator of the WHD.

  • The first (FLSA2018-18) is a letter regarding the compensability of travel time for hourly workers under the FLSA; and
  • The second (FLSA2018-19) addresses whether an employee’s medically required 15-minute breaks (taken as FMLA time) are compensable under the FLSA.

Compensability of Travel Time:

Under the FLSA, compensable work time generally does not include time spent commuting to or from work, even if the job site varies from day to day. However, unlike that commuting time, travel from job site to job site during a workday must be counted as hours worked for purposes of calculating hours paid.

Additionally, travel away from home (flying to out-of-town assignments or training, for example) is “worktime” when it cuts across an employee’s regular work hours, regardless of whether the travel is on a weekday or weekend. Therefore, a Sunday afternoon flight to a Monday assignment will be counted as “worktime” if the employee’s workday was 9-to-5, and the flight was between those hours on Sunday.

However, how is compensability of that travel time determined if there is no regular workday? The WHD says, in Opinion Letter FLSA2018-18, that an employer may use one of three ways to “reasonably ascertain an employee’s normal working hours” for purposes of calculating compensable travel time: (1) review work records to find “typical work hours” during the most recent month of employment; (2) determine the average start and end times for that month; or (3) negotiate and agree with the employee as to a “reasonable” amount of compensable travel time. According to the WHD’s Opinion Letter, when an employer uses one of these methods to determine normal working hours for the purposes of determining compensable travel time, the WHD “will not find a violation for compensating employees’ travel time only during those working hours.”

Compensability of FMLA-Related Rest Breaks:

The WHD’s second Opinion Letter, FLSA2018-19, addresses the question of whether a non-exempt employee’s 15-minute rest breaks, mandated by the employee’s health care provider and covered under the FMLA, are compensable or non-compensable under the FLSA.

Under the FLSA, short rest breaks of up to 20 minutes that “primarily benefit the employer” ordinarily are compensable. However, short rest breaks primarily benefitting the employee are not compensable. According to the WHD’s Acting Administrator, FMLA-protected breaks given to accommodate an employee’s serious health condition would be for the primary benefit of the employee. He further points out that the FMLA itself provides that such breaks may be unpaid.

However, the Opinion Letter also includes one significant point for employers: employees who take FMLA-protected breaks must receive as many compensable breaks as their coworkers receive. He provides this example:

. . . [I]f an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, and employee needing a 15-minute break every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.

Post Script:

An Opinion Letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion Letters represent official statements of agency policy, and can be relied upon to provide insight into how the DOL would interpret the application of the laws on which the letters offer guidance.

However, it also is important to note that each Opinion Letter includes a caveat stating that the opinion offered in any specific letter is based exclusively on the facts presented for the issuance of that particular letter. Therefore, employers should refrain from generalizing the decisions set forth in any letter, or attempting to extrapolate or stretch the opinion to fit facts that are not the same as those addressed in the Opinion Letter.

Sharing an employee’s EEOC charge with other employees may violate the ADA.

The right to communicate with the Equal Employment Opportunity Commission (EEOC) is protected by federal law. In fact, the EEOC’s Strategic Enforcement Plan identifies, as one of its six enforcement priorities, “preserving access to the legal system.” Recently, one employer learned that a letter from its in-house attorney to its workforce may be viewed as violating federal law  by “chilling” employees’ willingness to file discrimination claims.

In September 2015, the EEOC filed a lawsuit in federal court in Connecticut, against Day & Zimmermann NPS (DZNPS), a provider of staffing services to the power industry. The suit alleged that DZNPS violated the Americans with Disabilities Act (ADA) when that company sent a letter from its in-house counsel to nearly 150 employees, informing them that one of their co-workers had filed a disability discrimination charge. The letter divulged the name of the employee, the specific allegations in the charge (including the nature of the disability alleged), and the actual accommodations sought by the individual.

The EEOC’s lawsuit invoked the ADA’s “interference provision,” alleging that the sharing of details related to the employee’s charge not only amounted to retaliation against that employee, but also created a potential “chilling effect” by intimidating other employees against filing charges in the future. The company responded by stating that the letter was provided to other employees as a “courtesy” simply to alert them that they may be contacted by the EEOC with respect to the original charge.

Cross motions for summary judgment by the parties both were denied by the court. Instead, the court found, in late August of 2017, that the case should be determined at trial by a jury, both on the retaliation claim against the filer of the original charge and on the interference claim affecting other employees.

A settlement was reached in November 2017. In that settlement, the company agreed to “extensive injunctive relief” and $45,000 in compensatory damages to the filer of the original EEOC charge.

This decision involving the EEOC’s New York district Office – which oversees NY, Northern NJ, CT, MA, RI, VT, NH, and ME – should be noted by employers and, more specifically, by their in-house counsel. The ADA’s interference provision was interpreted in this case as protecting an individual charge filer from retaliation, as well as protecting workers who hadn’t yet engaged in any specific EEOC-related activity.

All that is required to establish an ADA interference claim is to point to evidence of an employer action that could be interpreted as coercing or intimidating an employee into not exercising his or her rights under the ADA. In this case, the letter, which included specifics about the employee’s disability discrimination charge, was sufficient to get the lawsuit in front of a jury. In-house counsel therefore should ensure that if a letter to other employees is necessary, that letter should be limited in scope and factual information. Such careful action can avoid unintended liability under the ADA’s interference provision.

Addressing Requests for Additional Time Off After a Leave of Absence: Walk in the Park, or Maze Without a Map?

Is additional time off after a leave of absence a “reasonable” accommodation? The answer is unclear, and usually is “It depends.” Federal courts recently have disagreed with each other on the issue, and the question has received continued and increasing attention after the EEOC’s 2016 Guidance on medical leaves under the Americans with Disabilities Act.

In the shadow of that question is a more critical – and often overlooked – issue: the way in which an employee’s request for additional leave is approached by an employer. One California employer recently was sent a clear message by a jury when that company completely failed to address an employee’s request for additional leave to deal with a post-injury recovery and depression and instead, determined without discussion that it was unreasonable. The jury’s total award to the employee, including punitive damages, was over $4.5 Million. Here are the facts:

  • Della Hill worked as a counselor for a non-profit drug abuse program in Los Angeles County;
  • In 2014, Hill was honored by the County for her work in that program;
  • In 2015, Hill injured her arm and took time off to recover from that injury and from a diagnosis of severe depression;
  • Hill was scheduled to return to work on March 23, 2015, but asked for an extension of her leave until April 11, 2015 – an additional 18 days;
  • The request was not addressed and, instead, Hill was fired from her job on March 31, 2015 for failing to return from leave, without discussion about any accommodation or possible re-employment in the future;
  • Hill filed suit under California law, which is analyzed similarly to federal anti-discrimination law;
  • After a trial, the jury found in favor of Hill and awarded nearly $550,000 in past and future wage loss, and an additional $1.35 Million in compensatory (non-wage) damages;
  • The jury also determined that the employer’s failure to engage in any interactive discussion with Hill was evidence of “malice, oppression, or fraud,” and awarded over $2.6 Million in punitive damages.

What’s the moral of this story? The jury’s reaction, and its resulting message to the employer, was based not on the general question of whether Hill’s request for an additional 18-day leave was “reasonable,” but on the specific lack of interaction by the employer after that request from Hill.

Employers should seek to understand the distinction highlighted by this jury’s verdict. Whether or not a requested accommodation is reasonable is subsidiary to the method used by an employer to address the request. This case points out that the method must include some form of interactive discussion that allows information to be exchanged – both state and federal disability discrimination laws require that. As is obviously illustrated in this case, lack of clear communication can lead to unintended (and unexpected) financial consequences.

 

(Thank you to Niya McCray at Bradley Arant Bolt Cummings in Birmingham for her analysis of this case.)

Breastfeeding is a “gender-specific condition” protected by the Pregnancy Discrimination Act.

Does Title VII’s Pregnancy Discrimination Act (PDA) protect nursing mothers against post-pregnancy workplace discrimination? One federal court – the 11th U.S. Circuit Courts of Appeals – recently gave a resounding “Yes” to that question. Hicks v. City of Tuscaloosa, Alabama, 11th Cir., No. 16-13003, September 7, 2017. (With that decision, the Eleventh Circuit becomes the second federal appellate court to answer that question in the affirmative, with the Fifth Circuit having done so in 2013).

Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. She became pregnant in 2012. In spite of being directed by her supervisor at the time, Lieutenant Teena Richardson, to take only six weeks of leave, Hicks took the twelve weeks available to her under the Family and Medical Leave Act (FMLA) for the birth of her child.

On her first day back from FMLA leave, Hicks was written up for performance issues, in spite of the fact that her most recent performance evaluation stated that she had “exceeded expectations.” Richardson also was overheard by Hicks saying that she would find a way to “get [Hicks] out of here.” Seven days later, Hicks was transferred from the narcotics task force to the patrol division. As a result of that transfer, Hicks lost her vehicle and weekends off, took a pay cut, and was assigned different job duties.

Hicks then went on leave for postpartum depression. During that leave, Hicks’ doctor wrote to the Department, asking that Hicks be considered for alternate duties upon her return, such as a desk job, as the bullet-proof vest she was required to wear for patrol was physically restrictive and could cause breast infections that would impede her ability to breastfeed her child. There was evidence that the City provided desk jobs to employees to accommodate temporary medical conditions/injuries.

When Hicks returned from leave, she requested a desk job where she would not be required to wear a vest, and where she could conveniently take breaks to breastfeed. But because the Chief did not believe that breastfeeding warranted alternate duty, he informed Hicks that her choices were to forego the bullet-proof vest, or to wear a modified vest, and that she could take breaks during her patrols to breastfeed. Hicks considered the “no vest” option to be no accommodation at all, since patrols were inherently dangerous, and she was concerned because the modified vests left gaping, dangerous holes in the protection. She then resigned from employment.

Hicks filed a lawsuit against the City of Tuscaloosa, claiming: pregnancy discrimination; constructive discharge; FMLA interference; and FMLA retaliation. A jury found in favor of the City on the FMLA interference claim, but for Hicks on the remaining three claims. Hicks ultimately was awarded over $160,000, plus her attorney fees and costs.

The City asked the court for judgment in its favor in spite of the verdict or, in the alternate, for a new trial. Those requests were denied. Instead, the Eleventh Circuit found that the case provided “ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave,” and upheld the jury’s verdict.

Here are the events that led to the Eleventh Circuit’s decision:

  • Richardson’s statements regarding Hicks, and the length of Hicks’ leave;
  • Actions that were taken within 8 days of Hicks’ return from that leave;
  • Disregard by the department for the request made by Hicks’ doctor for alternate duty; and
  • The Chief’s unwillingness to view breastfeeding as an issue requiring accommodation.

According to the Eleventh Circuit, the PDA was meant to extend the protections of Title VII to all matters concerning the childbearing process’ “physiological occurrences peculiar to women,” including those that are post-pregnancy. While employers do not have to provide special accommodations to breastfeeding workers – other than those required by state law and under the current Affordable Care Act – Title VII and the PDA preclude employers from taking adverse action based on gender-specific physiological occurrences, and Courts now seem to be including breastfeeding in those occurrences.

This case also reminds employers that they must treat women with pregnancy-related conditions the same as workers who aren’t experiencing pregnancy-related conditions, as determined by the U.S. Supreme Court in Young v. United Parcel Service, Inc., in 2015.

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