Healthcare entities are being faced with a growing number of challenges related to the virus SARS-CoV-2, or the disease caused by that virus, COVID-19. One of those challenges is the issue of how to apply the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), and when to share names or other identifying information of individuals infected with or exposed to the virus without violating that rule.

The U.S. Department of Health and Human Services (HHS) has issued a summary of the circumstances in which HIPAA’s Privacy Rule allows a covered entity to share that information with law enforcement, paramedics, and other first responders and public health authorities, without an individual’s explicit authorization.

The Privacy Rule applies to “covered entities.” Those include: Health Care Providers, Health Plans, and Health Care Clearing Houses.

Specific examples of Health Care Providers are:

  • Doctors
  • Clinics
  • Psychologists
  • Dentists
  • Chiropractors
  • Nursing Homes
  • Pharmacies

…but only if they transmit any information in an electronic form in connection with a transaction for which HHS has adopted a standard.

Health Plans include:

  • Health insurance companies
  • HMOs
  • Company health plans
  • Government programs that pay for health care, such as Medicare, Medicaid, and the military and veterans’ health care programs.

Health Care Clearing Houses include entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

If, in fact, the entity at issue falls within the definition of “covered entity,” it is permitted to disclose the protected health information (PHI) of an individual infected with – or exposed to – COVID-19, with “law enforcement, paramedics, other first responders, and public health authorities” without explicit authorization from the affected individual, in certain circumstances. According to the HHS, those circumstances include:

  • When the disclosure is needed to provide treatment.
  • When the notification is required by law (i.e., reporting cases of infectious diseases to public health officials).
  • To notify a public health authority in order to prevent or control the spread of disease.
  • When first responders may be at risk of infection.
  • When disclosure to first responders is necessary to prevent or lessen a serious/imminent threat to a person or the public.
  • When responding to a request for PHI by a correctional institution/law enforcement official having lawful custody of an inmate or other individual.

Generally, a covered entity must make reasonable efforts to limit the amount of information disclosed to that which is the “minimum necessary” to accomplish the purpose for the disclosure. Prior to making such disclosure, covered entities should consult other (state or local) applicable laws for any further restrictions on disclosures that may be applied outside of the HIPAA Privacy Rule.

The HHS notice – a link to which can be found here – provides examples of disclosures from various covered entities; it also provides a list of related resources related to the coronavirus and other types of disclosures. Add those to the list of resources for dealing with the current situation.

No one looks forward to having a difficult conversation. Whether you’re conducting or responding to a performance evaluation at work, comforting a bereaved friend, or discussing a behavioral issue with a family member, there are five steps that can help to change these “confrontations” into “communication.”

Don’t put off the discussion to the “perfect moment.”

Waiting for the “right” opportunity to raise a difficult issue is counter-productive in two ways. It allows you to postpone the inevitable, and it creates excuses for why not to say something. “It’s too late (or too early) in the day,” just allows the discussion to be put off for no real reason. “She seems to be in a bad mood and won’t want to talk about this,” is basing your hesitation on an assumption about someone else’s mindset. My favorite is, “I think I’m coming down with something and can’t think straight.” That one’s self explanatory.

Just say something.

Like the perfect moment, the need for the perfect words is a delay tactic. No one really has the perfect words, especially in situations where someone is suffering a loss or disappointment. The best thing is say is . . . something. How about saying “I was thinking about you,” or asking “Do you want to take a walk?” Almost anything that allows communication to begin is beneficial. Someone in emotional pain may not want to address the issue head on, but would appreciate a kind word. In a work-related conversation, the best approach might be a direct: “How can I help you to improve your work performance?

Don’t try to fix things – just acknowledge.

Sometimes, a solution isn’t necessary, or even wanted. The best way to address that fact is to open the communication and then just listen. I learned this the hard way, when one of my then-high-school aged children was telling me about a problem at school. I (of course) jumped in with a number of fix-its that could be implemented immediately. His response was “I don’t need you to fix this. I just need you to listen.”

Commit to a follow-up.

One of the most important things about the difficult conversation is determining what to do after it has been conducted. If the conversation is work-related, maybe agreeing to a regular meeting/discussion would be beneficial. After comforting a sad friend, agreeing to meet for coffee or lunch is often a follow-up that shows continued interest and willingness to help. The point is to show a commitment to continue the discussion, and a genuine interest in improving the situation.


Obviously, if you commit to a follow-up, the important next step is to act on that. Nothing will undermine your credibility faster than beginning a difficult conversation, making headway on the issues, agreeing to do something to improve the situation, and then, doing nothing. Be mindful of the effect that your discussions are having on the other person. Your actual commitment to continue the communication is a critical element is resolving the original issue.

The stakes typically are high in difficult conversations, which is, of course, one of the reasons that we avoid them. But the payoff is huge. Having these types of discussions takes courage and mindful empathy – two leadership skills acknowledged as valuable and critical to today’s fast-paced environment. Initiating difficult discussions in a thoughtful and non-emotional way also helps to hone problem-solving skills, another leadership quality.

There are a number of thoughtful and helpful articles and resources to consult that may help you to implement these five steps. But like everything else that’s worth learning, you won’t get good at conducting difficult conversations unless you practice handling them, both at work and at home. Start with the five steps listed, and move forward from there.






In this era of electronic communication, mindful communication is becoming a lost art. There are two primary reasons for this: first, without face-to-face contact, it becomes easier to forget that there is a second party to the communication; and further, it becomes too easy to present our own position without listening for input or response from that second party.

The Major Communication Mistake:

Because all of this feels so good – it makes us feel “efficient,” which gives the illusion of successfully transmitting our message – we carry that style over to our in-person communications. That’s a mistake.

Whether you’re speaking with a manager, a subordinate, a group, or your own family members, here are six points that may improve your communication skills:

Speaking More Mindfully:

  • Concisely articulate the issue. This isn’t as easy as it sounds. Set out the premise of your conversation/speech/request without judgment or emotion. That means saying “I’d like to discuss with you the office policy regarding personal items,” rather than “Your co-workers hate it when you steal their lunches out of the fridge.”
  • Understand your audience. Recognize that a speech that you’re giving to a group of 100 people immediately after lunch is not going to work if you present it in the same style that you did for a group of 20 first thing that morning. Speaking to your teenager as he or she is running out the door may not be fully received by that distracted listener.
  • Be willing to deliver the difficult message. Whether you’re imposing discipline, apologizing for a mistake, or offering sympathy for a misfortune, don’t try to fix things. Just acknowledge the issues in a non-judgmental way – and remember that an unencumbered apology (“I’m sorry that I did that to you”) is better than back-handed blame (“I’m sorry that you made me have to do that”).

Listening More Mindfully:

  • Be aware of the other speaker’s motivation. If you can determine why the other party holds the opinion that he or she is expressing, you can recognize and respond more effectively. You may have to ask a question or two to get to that place – but again, remember to be non-judgmental. “What makes you think so?” or “What can I do to help?” are better questions than “Why would you say something so ridiculous?”
  • Use silence as a tool. Whether you’re speaking to one person or a group of 100, sometimes just stopping for a second or two to listen for any reaction or question is much more effective than plowing along with your own message.
  • Be prepared to listen without arguing. Allowing the other party to speak without interruption is not only courteous, it’s productive. It allows that person to feel respected, and may cause them to realize that there’s some overlap between their position and yours.

Once we step aside from our computer or our phone, and whether we’re talking to a single person or a group, we all believe that we know how to communicate. But our messages don’t always get across in the way that we hope or think they do. These six things allow us to communicate in a more intentional and mindful way, building our own credibility and confidence with those with whom we’re sharing a message. Try them out – you may start to enjoy talking directly to people as much as you enjoy tweeting!

Valentine’s Day is an appropriate time to think about how to deal effectively with workplace romances. Real-life workplaces rarely reflect movie scenarios. Consider:

  • Mel Gibson’s character whose accidental electrocution in “What Women Want” allows him to understand the innermost thoughts of his female coworker and family members, and whose epiphany allows him to “capture” the woman of his dreams – even while plotting to have her fired;
  • Hugh Grant’s character in “Two Weeks Notice” who shamelessly uses the legal skills of his in-house attorney, played by Sandra Bullock, to build his real estate empire, until Bullock quits . . . but then realizes how much she misses him and accepts his attempts to reunite;
  • “Working Girl” Melanie Griffith falling head over heels for Harrison Ford, who plays a businessman in a romantic relationship with Griffith’s boss (Sigourney Weaver); Griffith’s persistence and – let’s face it – scheming finally result in Ford realizing his true feelings for her, and she ends up working in his company in a management role.

The Relevant Statistics:

While real-life workplace situations rarely turn out so smoothly (if any of those can be considered to have turned out “smoothly”. . . ), statistics show that the public generally accepts consensual workplace romances. However, that increased social acceptance has not translated into lowered legal risk for companies, large or small, especially in this era of “me, too.” Given this conundrum, employers face an ever-increasing challenge to accommodate the existing social landscape within the office environment. The question then becomes: how should a company handle the issue of romance in the workplace? The answer involves a specific strategy: rather than preventing workplace romances, the key is to educate managers about the legal ramifications of romances “gone bad.”

Start with this fact: according to one survey conducted by the Society for Human Resource Management (, 40% of the employees surveyed reported being involved in an office romance at some point in their careers. In the same survey, over 70% of organizations reported that they had no formal policies – either written or verbal – to address workplace romances. In the current era, this lack is a recipe for potential disaster.

Workplace Policies:

What are the primary elements of an effective “workplace romance” policy? Here are the three critical provisions that should be included:

  1. Prohibit relationships that create an actual or perceived conflict of interest. Employers should take steps to prohibit or at least control relationships between supervisors and subordinates. All employers should have policies that set forth the conduct they expect from their managers. At a minimum, employers should require managers to disclose relationships with subordinates, take steps to ensure any direct reporting relationship between the employees involved is eliminated, and make certain the supervisor is not in a position to advance the paramour’s career. To do otherwise essentially invites a lawsuit.
  2. Require people to behave in a professional manner. This means keeping personal relationships – and the consequences of those relationships – out of the work environment, and acting consistently with the policy outlined above.
  3. Clearly state the potential consequences for violating the policy. Without genuine parameters and disciplinary consequences, the policy is just a “check-the-box” and will not have any credibility with courts that may have to review legal claims based on workplace romance situations.

Conduct Regular Training:

Training is an effective way for a company to reduce legal risk. One of the first requests often made by plaintiff’s counsel in sex harassment cases is for documents establishing the company’s sex harassment policy, the mechanism for reporting complaints, and all documentation establishing training the company provided to the alleged harasser.

Companies that can produce evidence of yearly training and a well-disseminated anti-harassment policy are in a position to establish certain available affirmative defenses that can assist in insulating companies from liability, if the employer can prove it exercised reasonable care to prevent or correct any sexually harassing behavior and the employee unreasonably failed to take advantage of the reporting opportunities offered. Training is an effective and documented way to do that. (That said, training should not be considered as a replacement for effective policies and genuine attempts to resolve issues as they arise.)

Confirm That Reported Relationships are Truly Consensual:

Obviously, any employer involvement with personal relationships between employees should be limited to issues that directly affect the jobs or the company – these are difficult conversations to raise, but must be conducted to avoid risk. Employers should concern themselves with the potential or actual effect of a relationship, not the motivation or otherwise private lives of those involved in it. In separate conversations with each individual involved in a workplace relationship, an employer should:

  • Advise the parties of the company’s sexual harassment and other applicable policies and have them acknowledge (in writing) receiving and reading those policies;
  • Stress the importance of professionalism at all work-related activities;
  • Advise against favoritism or a conflict of interest by supervisory party; and
  • If the relationship ends, advise the parties to report any harassing conduct.


In today’s legal environment, romantic relationships in the workplace can create the potential for disaster, not only for the parties involved in the relationship but also for coworkers and the company at large. Understanding and dealing with the many issues surrounding the phenomenon, and implementing policies and procedures around the issue can reduce the negative consequences of these circumstances.

The Occupational Safety and Health Administration (OSHA) recently published a thorough and usable webpage that provides interim guidance and resources for preventing exposure to the 2019 Novel Coronavirus, and for learning more about the developing information on that outbreak. That page provides an overview of the ever-expanding situation, and lists numerous resources and links to information for protecting workers from occupational exposure, including instructions on protecting workers during a pandemic, should this virus become one.

While US employers are still struggling to understand their responsibilities with respect to the outbreak, multinational employers are dealing with government-imposed travel restrictions and other issues related to global mobility See, “The Coronavirus Outbreak’s Impact on International Employers,” written by members of Ogletree’s Cross-Border Practice Group. The article summarizes key developments in China and Hong Kong, and spells out considerations for international employers. Some of those points apply to US employers, as well, especially those companies that have employees who recently have traveled to China, or have family members who have visited the US from China in the past few weeks.

The basic information that is being shared by the OSHA, the Center for Disease Control (CDC), and the World Health Organization (WHO) overlaps in a number of ways. All of the information is to allow employees to be educated on the circumstances of the 2019 Novel Coronavirus outbreak, and to inform them about actions that can be taken to minimize risk.

Clear communication by employers promotes employee confidence. Therefore, according to OSHA, employers should consider sharing the following information with their workforces:

  • Which job activities may put them at risk for exposure to sources of infection;
  • What options may be available for working remotely, or utilizing an employer’s flexible leave policy when they are sick;
  • Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people;
  • Good hygiene and appropriate disinfection procedures;
  • What personal protective equipment (PPE) is available, and how to wear, use, clean and store it properly;
  • What medical services (e.g., vaccination, post-exposure medication) may be available to them; and
  • How supervisors will provide updated pandemic-related communications, and where to direct their questions.

The lack of information on this situation may cause some panic among employees and lead them to raise concerns about workplace safety regarding the spread of the virus. It is worth remembering that the OSHAct prohibits retaliation against employees who raise workplace safety concerns, and requires cooperation in addressing those issues. Here are some websites that continue to post new information as it becomes available:

Although the Americans with Disabilities Act (ADA) protects qualified individuals who may be perceived as having a disability, that Act does not protect individuals who may be perceived as possibly becoming disabled in the future. EEOC v. STME, LLC, 11th Cir., No. 18-11121, 9/12/19.

Kimberly Lowe began working as a massage therapist at Massage Envy in Tampa, Florida in January 2012. Lowe was capable of performing her job duties, and did so in a satisfactory manner.

In September 2014, Lowe asked for time off to travel to Ghana, West Africa, to visit her sister. Although the company’s business manager approved that request, one of the company’s owners met with Lowe three days before the trip and told Lowe that he would fire her if she went ahead with those plans. The reason provided for that threat was the owner’s concern that Lowe would become infected with the Ebola virus if she traveled to Ghana, and would “bring it home to Tampa and infect everyone.” (At that time in 2014, there was an Ebola epidemic in Guinea, Liberia, and Sierra Leone, three other West African countries. There was, in fact, no Ebola outbreak in Ghana itself at the time.)

Lowe refused to cancel her trip; Massage Envy fired her from her job for that reason. Lowe then traveled to Ghana as she had planned, and did not contract the Ebola virus. Upon Lowe’s return, Massage Envy did not permit Lowe to return to her job.

Lowe filed a Charge of Discrimination, and the EEOC investigated the claim, ultimately determining that there was “reasonable cause” to believe that Massage Envy violated the ADA when it terminated Lowe’s employment, because it regarded her as disabled.

The EEOC then filed a lawsuit on Lowe’s behalf, alleging violation of the ADA by the employer. The company filed a motion to dismiss the complaint; the district court granted the motion, dismissing the case. The EEOC appealed that decision.

On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the dismissal. It first stated that the ADA prohibits an employer from discriminating against a qualified individual when it perceives that individual as disabled. But it then pointed out that in order to trigger the ADA’s protections, the relevant time period for assessing the existence (or perception of the existence) of a disability is at “the time of the alleged discriminatory act.”

The question in this case, then, was whether or not Lowe was “regarded as” being disabled before her trip to Ghana. Here, the employer did not perceive Lowe as having Ebola at the point that he fired her – rather, he perceived her as “having the potential or possibility of becoming infected in the future if she traveled to Ghana.”

Based on that, the Eleventh Circuit decided that:

  • Lowe’s heightened risk of developing Ebola in the future due to her visit to Ghana did not constitute a physical impairment; and, therefore
  • Lowe was not perceived as having an existing impairment at the time that she was fired; and
  • ADA’s “regarded as” prong does not apply when an employer “perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.”

Although current guidance from the CDC advises that people who have had casual contact with infected individuals are at “minimal risk” for developing infection, the CDC is screening passengers on direct and connecting flights from Wuhan, China (the presumed epicenter of the virus) at five major U.S. airports: Atlanta, Chicago, New York City, San Francisco and Los Angeles.

The relevance of this case in light of the recent attention on the new coronavirus (referred to as 2019-nCoV) is clear. The Center for Disease Control expects more Americans to be diagnosed with the virus in the coming weeks and months. Worldwide, the number of confirmed cases is approaching 2,000.

This Eleventh Circuit decision should not be viewed as permission to fire individuals who ask to travel to countries or areas in which 2019-nCoV has appeared. However, employers should become knowledgeable about their own obligations and responsibilities with respect to their employees’ safety, and should continue to monitor travel restrictions and recommendations from the CDC regarding this outbreak.


For an animated version of the CDC’s “Take 3” flu poster, above, click here.

Calculating the “regular rate” of pay:

Section 7 of the Fair Labor Standards Act (FLSA) requires an employer to pay one and one-half times an employee’s “regular rate” of pay for hours worked over 40 in a workweek. That “regular rate” includes all “remuneration for employment” and specifically includes nondiscretionary bonuses.

Nondiscretionary bonuses are bonuses announced by an employer, in advance, to induce a non-exempt (typically hourly) employee to take a specific action.

When such a bonus is attached to one week, calculating the regular rate is not complicated: the employer multiplies the employee’s standard hourly rate by the number of hours worked for that week, adds the discretionary bonus amount to that result, and then divides that total compensation number by the total hours worked to get the “regular rate” for the workweek. Employees are entitled to be paid the “regular rate” for each of the first 40 hours worked that week, and 1.5 times that regular rate for each overtime hour worked in the week.

But what if the bonus is for a multiple week period, and it’s impossible to allocate the full bonus to a particular week?

DOL’s recent Opinion Letter on discretionary bonuses:

That issue was addressed by the Department of Labor (DOL) on January 7, 2020, in the Wage & Hour Division’s first Opinion Letter of the year. In that Opinion Letter, the Administrator set forth the method for calculating the regular rate of an hourly employee who worked irregular periods of overtime during that employee’s probationary period, when the bonus applied to the full period. Opinion Letter FLSA2020-1, January 7, 2020.

In that circumstance, the employer agreed to pay a $3,000 lump sum to probationary employees who successfully complete a 10-week training period. As an additional precondition to the bonus, the employee was required to agree to remain with the employer for an additional unspecified training period. However, the employee did not have to complete any specific period of additional training after the initial 10 weeks in order to collect the $3,000 bonus.

Based on the facts submitted, the DOL set forth the following assertions in its Opinion Letter:

  • The lump sum bonus should be allocated to the initial 10-week training period only; and
  • It is appropriate to allocate the lump sum bonus equally to each week of the 10-week training period, since each week counts equally in fulfilling the bonus criteria.

The overtime calculation and total earnings:

Therefore, in this particular instance, here are the steps to take to calculate the overtime pay:

  1. Determine amount of bonus to include: attribute $300 of the bonus ($3,000 divided by the 10 weeks) to each workweek;
  2. Determine the total straight time compensation for each overtime week: multiply the employee’s standard hourly rate by the actual hours worked, including overtime hours, within the workweek during which overtime was worked (straight time compensation = total hours worked x standard rate + attributable bonus);
  3. Calculate the new “regular rate” of pay: divide that straight time compensation total by the number of hours worked within that workweek (including overtime hours), which results in the new regular rate for that particular workweek;
  4. Calculate the overtime rate of pay: take the new regular rate of pay and multiply it by 1.5 – this is the overtime rate;
  5. NOW calculate the total earnings: start with straight time earnings, using the new regular rate (straight time earnings = new regular rate x straight time hours worked); then, calculate the overtime earnings (overtime earnings = new overtime rate x overtime hours worked within the calculation period); add those numbers together (total earnings = straight time earnings plus overtime earnings).

This is complicated – really complicated for some of us. But it’s the only way to assure that employees are being paid in a way consistent with the FLSA’s requirements.

The bottom line – and the critical reminder for employers – is that retroactive overtime payments must be made for non-exempt employees who work more than 40 hours in any workweek for which a non-discretionary bonus is paid. Recent and ongoing changes in the FLSA makes this an issue of which employers should be aware, as (based on this early Opinion Letter) it is an issue on which the DOL’s Wage & Hour Division is focusing attention in 2020.

At-will employment generally allows employment to end – by either the employer or employee – for any reason or no reason, other than for a violation of law. In West Virginia, as in many states, the rule that an employer has an absolute right to discharge an at-will employee is further tempered by the principle that where the employer’s motivation for the discharge contravenes some “substantial public policy,” then the employer may be liable to the employee for damages stemming from the discharge.

Typically, when an employee has been fired because that employee acted in self-defense in response to lethal imminent danger, such right of self-defense constitutes such a violation of public policy, and is an exception to the at-will employment doctrine. In fact, the firing of an employee after such an act could lead to an employee’s successful wrongful discharge claim.

While this standard has been reiterated in the court decisions in many states, the West Virginia state Supreme Court has limited such “wrongful discharge” claims by holding that the exception is limited to “only the most dangerous of circumstances.” Newton v. Morgantown Machine & Hydraulics of WV, Inc. S. Ct., November 19, 2019.

 In that case, the plaintiff, who was a Truck Dispatcher, was involved in a workplace argument with a company truck driver; the argument escalated into a physical altercation. After both employees were fired, plaintiff sued the company, asserting that he was “forced to defend himself” and “did not apply any force beyond what was necessary to protect himself.” He claimed that his firing violated the WV public policy of acting in self-defense.

The lower court dismissed the complaint on the basis that plaintiff’s conduct was not in response to “lethal imminent danger,” but rather was in response to a workplace argument. Plaintiff appealed to the state’s Supreme Court, which upheld the lower court’s dismissal. The Supreme Court found that because plaintiff was engaged in a workplace altercation “that did not involve weapons, dangerous circumstances, or a threat of lethal imminent danger,” his termination did not violate any public policy that supports self-defense in such situations.

The Supreme Court specifically held that while a particular employee may assert a public policy right to self-defense, an employer also has an interest in protecting its employees and customers from harm that could occur as a result of the employee’s actions in defending himself.

Employers have a duty safeguard employees, and to keep the workplace safe by prohibiting workplace altercations. Therefore, punishment (including termination) of ­all individuals involved in a workplace altercation will be supported – in West Virginia and other states with a self-defense public policy exceptions – other than in the “most dangerous of circumstances.”


Photo from “The Office” – Dwight does karate . . . sort of.

Investigative Confidentiality Gets the Support of the NLRB:

The National Labor Relations Board (NLRB) has reversed recent past decisions, and has held that an employer can require confidentiality from an individual employee involved in a current internal investigation. However, the NLRB only partly reversed past rulings on the issue, holding that while confidentiality can be required during an ongoing investigation, it may not be appropriate with respect to a past investigation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (Dec. 17, 2019).

At the basis of that decision is a policy of Apogee Retail LLC that requires employees to cooperate in internal investigations, and to “maintain confidentiality regarding those investigations.” Further, the same company’s list of rule infractions includes “unauthorized discussion of investigation or interview” with other employees.

Previously, the NLRB issued a decision in which it held that employees have a clear right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers, and that an employer’s restriction of such conversations amount to a per se violation of Section 7 of the National Labor Relations Act (NLRA). Fresh and Easy Neighborhood Market, 361 NLRB 151 (2014). The Board held, however, that an employer’s case-by-case showing of a “legitimate and substantial business justification” of such restriction could outweigh the protections afforded by Section 7. This put the onus squarely on the employer to defend such policies.

Since then, the NLRB consistently has determined that a case-by-case analysis of whether confidentiality can be required regarding a specific investigation must be made by the employer in order to defend itself against a Section 7 violation.

The Application of Facially Neutral Workplace Rules:

However, in 2017, the NLRB issued a decision (not related to investigative confidentiality) in which it set forth the test for applying facially neutral workplace rules so as to assure compliance with the NLRA. In that case, the Board spelled out three categories to assist in that test:

  • Category 1 includes rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 includes rules that the Board designates as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.

This test initially switches the burden from the employer (to determine the need for the policy on a case-by-case basis) to the NLRB’s General Counsel (to determine whether a specific policy interferes with the exercise of NLRA rights).

The Narrow Nature of the Apogee Decision:

In analyzing Apogee’s confidentiality policy, the Board stated that “[c]onfidentiality assurances during an ongoing investigation play a key role in serving the interests of both employers and employees,” and result in “investigative integrity.” Based on that fact, the Board found that “investigative confidentiality rules are lawful [under the three-category analysis] to the extent they apply to open investigations,” and fall within Category 1 rules. The Board therefore created a blanket allowance of such rules for ongoing investigations.

However, the Board went further, finding that once an investigation has concluded, extending the confidentiality requirement beyond the duration of the investigation may adversely affect an employee’s Section 7 rights. Therefore, a policy that – either directly or by omission – does not include a finite end to the confidentiality directive would fall within Category 2, which then puts the burden back on the employer to justify the policy.


While employers are applauding the Apogee decision, it is important not to overlook the restriction of that holding to ongoing investigations. To the extent that a company’s requirements for investigative confidentiality do not include such a limitation, it is important to document and retain reasons for the extension of confidentiality, should the employer wish it to continue beyond the conclusion of the investigation.

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.