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.

Employer’s “solicitous treatment” of alleged rapist may create a hostile environment for coworker/victim.

Can an employer’s perceived preferential treatment of an alleged rapist create a hostile work environment for the female employee who reported the rape? The 9th U.S. Circuit Court of Appeals recently held that a jury should determine the answer to that question. Fuller v. Idaho Dept. of Corrections, 9th Cir., No. 14-36110, July 31, 2017.

On August 22, 2011, Cynthia Fuller, an employee of the Idaho Department of Corrections (IDOC) was raped outside of the workplace by a co-worker, Herbt Cruz. Prior to that assault against Fuller by Cruz, IDOC had placed Cruz – whose workplace conduct had been the subject of prior complaints by three other female co-workers, but who had received no discipline for those incidents – on administrative leave because he was under criminal investigation for a prior rape reported in July 2011.

IDOC’s Deputy Chief directed its district manager to maintain contact with Cruz while he was out on that leave, to keep Cruz informed about the ongoing rape investigation and to “make sure he’s doing okay in terms of still being our employee.” In addition, IDOC management told its employees that the agency “looked forward” to Cruz’s “prompt return” to work.

On September 6, 2011, when Fuller reported the rape by Cruz, she was told that Cruz “had a history of this kind of behavior.” But on September 7, one day after Fuller’s rape report and the day on which she obtained a civil protective order against Cruz, an IDOC supervisor sent an e-mail to all IDOC employees, including Fuller, telling them to “feel free” to contact Cruz and “give him some encouragement, etc” because Cruz was “rather down, as to be expected.”

Subsequently, Fuller requested paid leave under IDOC’s policy. That policy – under which Cruz was being paid – allows the Director to grant paid administrative leave in an “unusual situation, emergency, or critical incident.” Fuller also requested “guidance” from the IDOC regarding any assistance to which she may be entitled “as a victim.”

Fuller’s requests were denied, and Fuller was advised to use vacation and sick time for any needed time off. Fuller then applied for and was granted FMLA leave. During Fuller’s leave, employees were told that she was absent for illness, but nothing further, which led staff members to assume she was “faking being sick.”

Although Fuller had obtained a civil protective order against Cruz, IDOC refused to prohibit Cruz from coming to the premises. Instead, Fuller was told that “Cruz is still our employee [a]nd we have to be conscious of his rights.” Further, IDOC’s management did not disclose the basis of Cruz’s leave to employees because they didn’t want to have a “stigma hanging over [him].”

Fuller resigned, and ultimately sued IDOC, including a hostile work environment claim under Title VII. Her claims were dismissed by a federal district court, and she appealed the hostile work environment claim. The Ninth Circuit vacated the dismissal and remanded the claim for trial, awarding the costs of the appeal to Fuller.

Let’s review the steps taken by (and inactions on the part of) IDOC that led to the Ninth Circuit’s decision, including:

  • IDOC’s prior failure to discipline Cruz for inappropriate workplace behavior;
  • IDOC’s proactivity to “make sure [Cruz was] doing ok” during the criminal rape investigation;
  • IDOC’s announcement to its employees that it was “looking forward” to Cruz’s prompt return from that investigation;
  • IDOC’s suggestion that employees provide “encouragement” to Cruz during his leave;
  • IDOC’s rejection of Fuller’s request for paid leave, although Cruz had received paid leave; and
  • IDOC’s failure to provide victim assistance/information to Fuller.

Even if each of these, standing alone, had a legitimate explanation, when taken together as a course of action, they could support Fuller’s perception that statements of concern for Cruz’s well-being – all made by IDOC managers – were based on a belief by those managers that Fuller was lying or that Cruz’s reputation was more important to them than Fuller’s safety.

According to the Ninth Circuit, such actions and statements could make it more difficult for Fuller to do her job, take pride in her work, or to desire to stay in her work position, all of which could create a hostile work environment under Title VII. Based on that rationale, the Court remanded the matter to allow a jury to decide whether a violation of Title VII existed.

Here, an employer’s reaction to an employee’s non-work-related action may lead to liability for a hostile workplace. It has become important for employers to realize that outside activities – and employers’ reactions to them – may create an unexpected basis of legal liability. Careful analysis of those circumstances, with the assistance of HR and legal when necessary, can help to avoid the risk of such liability.

Can a single use of a racial slur constitute illegal discrimination? One court says . . . maybe.

After being sued for race discrimination, an employer/company filed a motion to dismiss the claims against it, arguing that a single use of the n-word was not sufficient to state a claim for hostile work environment. The lower court agreed and dismissed the case. But in a decision of which employers should be aware, the 3d U.S. Circuit Court of Appeals reversed the dismissal, clarifying the applicable standard for reviewing a hostile work environment claim. Castleberry v. STI Group, 3d Circ., No. 16-3131, July 14, 2017.

Atron Castleberry and John Brown, both African-American males, were fired without warning or explanation two weeks after they complained that a supervisor used the n-word in talking to a group of workers that included Castleberry. Although both men were brought back to work soon afterward, they were terminated again for “lack of work.”

The men brought a lawsuit in federal court, alleging discrimination/harassment and retaliation. The court dismissed the claims on the basis that the facts did not support a finding that the alleged harassment was “pervasive and regular.” (Without illegal harassment, there could be no retaliation.)

To succeed on a race discrimination claim in the Third Circuit, a plaintiff must show, under a standard set by the U.S. Supreme Court, that the discrimination was “severe or pervasive.” Third Circuit case law, however, has been less-than-clear in articulating this standard. In fact, various past cases in the Circuit have referenced the terms “pervasive and regular” and “severe and pervasive” and, in fact, at times have used more than one standard within one case.

The difference between the correct standard – “severe or pervasive” – and the others is meaningful, because the disjunctive “or” in the correct standard allows isolated incidents, if extremely serious, to rise to the level of discrimination without a pervasive on otherwise ongoing element.

In the specific case being reviewed by the Third Circuit, no factual record had been developed, so there was no way for the court to determine whether the isolated incident complained of was sufficient to state a claim under the correct “severe or pervasive” standard. For that reason, the Court reversed the lower court’s decision, and remanded the case back for further review.

The lesson for employers is important: all complaints of discrimination should be reviewed carefully, whether or not the actions complained of occurred multiple times or on only one occasion. No assumption should be made that a single incident cannot support a claim of discrimination or hostile work environment. The determinative factor is whether the incident could “amount to a change in the terms and conditions of employment.” If so, the complained of action could be held to constitute discrimination and could support claims of harassment, hostile work environment, and retaliation.

 

Picture of The Count from Sesame Street, and brought to you by the Number 1.

Company’s reaction to claim of unequal pay is a “don’t do” check-list for employers.

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The 8th U.S. Circuit Court of Appeals recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., 8th Circ., No. 15-3508, June 28, 2017.

Here’s what happened in that case:

  • A female office employee (Donathan) with a “good work ethic” and no prior poor reviews or prior discipline complained of unequal pay;
  • Eight days later, Donathan was laid off, along with three seasonal workers and an individual fired for documented performance issues;
  • Four days later – the first work day after the firings – the three seasonal workers were re-hired, along with a replacement for Donathan;
  • Donathan’s replacement was not licensed to do the job that Donathan had held, and did not possess experience similar to Donathan’s;
  • Donathan filed an EEOC charge and, ultimately, a federal court lawsuit which included a retaliation claim under the Title VII/Equal Pay Act;
  • The district court dismissed the claims in response to a motion for summary judgment by the employer;
  • Donathan appealed to the Eighth Circuit, which reversed the dismissal of the retaliation claim.

A plaintiff’s ultimate burden in a Title VII retaliation case is to prove that an impermissible retaliatory motive was the “but-for” cause of the adverse employment action, which is a relatively high bar – higher than simply having to prove that the protected activity of the plaintiff was one of the “motivating factors” of the firing. But in this case, the Court held that Donathan’s case should be decided by a jury for the following reasons:

  • The business reason provided by the company for Donathan’s layoff was “economic necessity tied to a seasonal downtown” in business, but Donathan’s office position never had been included in seasonal layoff in the prior years during which Donathan had worked for the company;
  • Donathan had no prior negative reviews or disciplinary actions;
  • A replacement was hired for Donathan by the very next work day;
  • The temporal proximity between Donathan’s complaint of pay inequality and her layoff (there was evidence of a phone call between managers regarding layoffs just after, and on the same day, as Donathan’s complaint, and the layoffs occurred eight days later) was “strong evidence” of retaliation.

This case is a check-list of “don’t do” actions for employers. First, and importantly, there was no factually supported business-related reason for Donathan’s termination. She was a successful employee without prior disciplines or negative evaluations, and her office position never had been included in seasonal layoffs prior to that time. Next, the business rationale given by the company (seasonal slowdown) was immediately clouded by the fact that the three seasonal workers laid off with Donathan were re-hired on the very next business day. Finally, at the same time that it brought back the three seasonal workers, the company hired an individual whose qualifications were measurably lower than Donathan’s rather than re-hire Donathan, again weakening its “legitimate business reason” for the termination.

While the dissent in this case suggests that “the majority opinion is a victory for inferring retaliatory intent from temporal proximity,” such characterization overlooks the fact that temporal proximity was only one of the number of factors on which the Court’s decision was based.

Employers should recognize that thoughtful and careful consideration and investigation of an employee’s claim of unequal pay can avoid a retaliation claim and the attendant legal action that most certainly will accompany it. In this case, there was no documented discussion, investigation, or consideration of Donathan’s issues prior to her termination and replacement.

Employer pays $100,000 for 30 minutes of employment after firing pregnant applicant.

Want a road map on how not to react to a successful applicant who announces her pregnancy immediately after receiving an offer letter? Look at the reaction of one prospective employer in Florida, who recently settled a legal claim on that issue. EEOC v. Brown & Brown of Florida, Inc., MDFL, No. 6:16-cv-1326-Orl-37DCI, Consent Decree signed May 3, 2017.

Here’s what happened in the case:

  • In early 2015, Nicole Purcell applied for an entry level position with the brokerage firm of Brown & Brown in Daytona, Florida;
  • Purcell successfully made it through multiple rounds of interviews;
  • The company made to Purcell an offer of employment;
  • Upon receiving the offer, Purcell called the company’s Employee Services Coordinator to accept, and asked about maternity benefits, announcing that she was pregnant;
  • Within 30 minutes of the call, the Coordinator sent an e-mail to Purcell, stating that the company was rescinding the job offer, because they needed somebody in the position “long term”;
  • Purcell filed a Charge of Discrimination with the EEOC;
  • In July 2016, the EEOC filed a federal lawsuit on her behalf;
  • The parties recently resolved their differences by entering into a 2-year Consent Decree, with the company agreeing to pay to Purcell $100,000 in damages.

Besides the payment term, the Consent Decree includes provisions requiring Brown & Brown to: take affirmative steps to avoid pregnancy discrimination in the future; create and adopt a pregnancy discrimination policy (to be submitted for approval to the EEOC); distribute copies to every employee and manager, and to every applicant; provide two hours of in-person training on gender discrimination, including pregnancy discrimination, to every manager involved in the hiring process; retain, at the company’s cost, a “subject matter expert” (to be agreed upon by the EEC) on sex discrimination to conduct those sessions; provide to non-managers one hour of video or webinar training on the same topic(s); make yearly reports to the EEOC for two years regarding further complaints of pregnancy discrimination, if any; post a Notice of the consent decree at the facility; and retain all documents and data related to compliance with the Consent Decree.

All of this could have been avoided, had the company engaged in an interactive conversation with Purcell regarding any limitations she might have developed related to her pregnancy, and whether any limitations that would have affected her ability to do her job could have been accommodated.

The moral of the story is clear, and the list of employers’ do’s-and-don’ts is short:

  1. Don’t assume that a pregnant employee is unable to do the job, or will be absent for a lengthy period ;
  2. Do document any discussions with applicants who raise the issue of pregnancy, to assure that issued raised are appropriately addressed;
  3. Do ask for (and document) specifics of any accommodation or job modification requested, to assure that all issues are addressed;
  4. Do assure compliance with all federal and state laws regarding pregnancy leaves;
  5. Don’t forget about post-partum issues, which also require compliance with federal and state laws.

 

 

 

 

Dollar sign onesie photo from Zazzle.com.

 

Employee’s failure to actively engage in interactive process supports dismissal of ADA claim.

The Americans with Disabilities Act (ADA) requires both a disabled employee and her employer to work interactively to identify reasonable accommodations for the disabled employee. The 7th U.S. Circuit Court of Appeals has underscored that requirement by dismissing the claims of an individual who, it found, failed to engage fully in the interactive process. Brown v. Milwaukee Board of School Directors, No. 16-1971, 7th Circuit, May 4, 2017.

Sherlyn Brown was an assistant principal with the Milwaukee Public Schools. Beginning in 2006, she experienced knee pain due to severe arthritis; she requested and was granted certain accommodations for her limitations. She was assisted in that process by James Gorton, who was an employment specialist with the Milwaukee Schools.

In 2009, shortly after returning to work from a knee surgery, Brown re-injured her knee while restraining an unruly student. Her doctor then imposed a blanket restriction to “sedentary work with no student interaction.” After a few months, Brown’s doctor modified the restriction, and provided clarification that Brown “should not be in the vicinity of potentially unruly students.” Gorton immediately informed Brown that Brown could not continue working as an assistant principal and that she would be on paid sick leave while he worked with her to find a suitable position.

Over the following two years, and through Brown’s additional surgery-related absences and returns, Gorton worked to place Brown into a suitable position. However, nearly every available position required being in the vicinity of “potentially unruly students” since, in reality, such a broad restriction could implicate nearly every student. During the times that Gorton spoke to Brown about the restriction, Brown did not dispute Gorton’s characterization of her restrictions, nor did she attempt to explain or revise his understanding.

Gorton’s attempts to speak with Brown about the restrictions were well documented. For example, during one 3-week period, he left two voicemails, sent a certified letter, and sent an e-mail saying he would “deactivate” his file if she failed to respond. She eventually replied.

After Brown had exhausted two and a half years of her allowable three-year medical leave, Gorton again contacted Brown’s doctor, providing a list of essential functions of Brown’s position and asking for an update on Brown’s restrictions. Brown’s doctor replied that Brown could return to work, so long as she was “not put in a position where she is responsible for monitoring and controlling students that may become uncontrollable.” He also confirmed that those restrictions were permanent.

After receiving that letter, Gorton was able to find four vacant lateral positions, but all of which included being around potentially “unruly” students or potentially monitoring or controlling those students, meaning that Brown medically could not hold the positions. Brown’s employment then was terminated.

Brown ultimately filed a lawsuit in federal court, claiming that the Milwaukee schools violated the ADA by failing to accommodate her disability and then by terminating her. The lower court granted summary judgment for Milwaukee Schools, and the Seventh Circuit affirmed that decision.

The appellate court’s dismissal was based on the undisputed fact that Brown essentially could not work around students – any of whom had the potential to become unruly. (According to the court, “[e]ssentially all students are potentially unruly.”)

Brown repeatedly presented Gorton with broad work restrictions with no effort to redefine, further explain, or otherwise delineate the restrictions, other than to say she permanently could not be around or supervise “potentially” unruly students.

On multiple occasions, Gorton asked for additional explanation, but was met with the same description of Brown’s restrictions. In each instance in which Gorton asked for additional clarification, he was met with the same language regarding the requirement that Brown needed to avoid interactions with potentially unruly students.

Four days before Brown’s three-year medical leave expired, Gorton tried once again to obtain clarification that would help to reassign Brown. In response, Brown’s doctor sent a fitness-for-duty certificate that stated there was “no reason why [Brown] could not be around students; she just may not be responsible for controlling those students.” Gratuitously, the doctor also suggested that “security” should be available to control students so Brown wouldn’t have to.

The Seventh Circuit held that the facts in this case “show that Milwaukee Schools acted consistently with the restrictions imposed by Brown’s doctors.” It went on the say that “to the extent that Brown is arguing that her restrictions were less severe than Milwaukee Schools believed, the undisputed facts show that Brown failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions.”

The instructive value of this opinion to employers is clear: the success of Milwaukee Schools in this case is based upon Gorton’s documentation, which relied on job descriptions, statements from the school district’s HR department, and Brown’s own unchanging statements regarding her concern over being around students. If Gorton had not documented his understanding of Brown’s restrictions and his attempts at obtaining clarification from her and her medical providers, the decision in this case may have been completely different.

FMLA is not a tool an employee can use to delay or avoid a termination.

The Family and Medical Leave Act (FMLA) makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” an individual’s rights under the FMLA, or to retaliate against an employee for the exercise of rights under the FMLA. However, according to at least one federal appellate court, an employee’s use of FMLA to avoid an anticipated firing is not a valid exercise of those rights.

The 1st U.S. Circuit Court of Appeals recently held that a termination decision made after numerous attempts to accommodate an employee’s health issues, but prior to that employee’s formal request for FMLA leave was sufficient to support dismissal of the individual’s FMLA retaliation claim. Germinowski v. Patricia Harris, et al, 1st Circ., No. 16-1306 (April 12, 2017).

In that case, Heidi Germanowski – an employee of the Berkshire Middle District Registry of Deeds for over 10 years – claimed that her supervisor fired her because she requested leave protected by the FMLA. A federal district court dismissed Germanowski’s claims, and she appealed to the First Circuit, which upheld the dismissal. The facts are:

  • During the initial years of her employment, Germanowski initially worked with another employee, Patricia Harris;
  • In 2013, Harris became Germanowski’s supervisor;
  • The relationship between the two began to deteriorate, with Germanowski claiming to experience “stress and anxiety accompanied by fatigue, hair loss, aches, and gastrointestinal pain” that left her unable to work at times;
  • Harris allowed Germanowski to take time off when needed, with pay, when Germanowski requested it;
  • In October 2014, Germanowski suffered a nervous breakdown at work;
  • Subsequently, Germanowski made specific claims of mistreatment by Harris, including that Harris was “out to get her”;
  • Germanowski received a sport pistol from her husband as a gift;
  • She informed Harris of the gift, as Harris knew of Germanowski’s sport shooting hobby;
  • Harris expressed her discomfort with the gift, wondering whether Germanowski would carry the gun to work (there is no specific evidence that she did or would have);
  • On Friday, January 30, when Germanowski attempted to enter the workplace, she was denied access to the building;
  • On Monday, February 2, 2015, Harris left a message for Germanowski, directing her not to return to the workplace;
  • Fearful that her job was “in jeopardy,” Germanowski sent an e-mail to Harris on February 3, stating that she would be “out sick for the week” and was scheduled to visit her doctor;
  • On February 5, Germanowski’s doctor provided a letter to her, advising her to take a medical leave of absence to pursue treatment;
  • There is no evidence that the letter was provided to Harris or the employer;
  • On February 6, Germanowski received a voicemail message from the chief court officer in which she was told that her employment was being terminated effective immediately;
  • Germanowski sued Harris and the Commonwealth of Massachusetts, including a claim of FMLA retaliation;
  • The lower court dismissed all claims, including the FMLA claim, finding that Harris had no knowledge of Germanowski’s intent to take FMLA leave and therefore, could not have interfered in that right or retaliated because of it;
  • Germanowski appealed the dismissal to the First Circuit, which upheld the lower court’s decision to dismiss the claims.

To support its decision, the First Circuit listed the actions that the employer had taken in the year prior to the firing, including the facts that Harris consistently accommodated Germanowski when Germanowski felt unable to work; that absences allowed by Harris were fully paid; and those absences were not counted against any available leave time.

While Germanowski argued that the temporal proximity between her February 3 e-mail informing Harris she would be “out sick” for a week and her firing on February 5 was sufficient basis for her retaliation claim, the Court disagreed. Instead, it pointed out the “emotionally fraught and longstanding dispute” between Harris and Germanowski, the fear expressed by Harris about the possibility of Germanowski bringing a gun into the workplace, and the subsequent “lock out” of Germanowski based upon that fear. According to the Court:

To think that an employer in such a case fired Germanowski because she asked for some time off while she was already locked out is to suggest that common sense borne of real world experience has no role to play in the plausibility analysis.

Going further, the Court quoted the lower court’s statement that the “FMLA is not a tool an employee can use to delay or avoid a termination.” Therefore, while there was evidence that Harris and Germanowski had a troubled working relationship and that Germanowski believed that Harris was “out to get” her, such evidence does not support a causal connection between the exercise of rights under the FMLA and a subsequent termination – in fact, according to the First Circuit, those facts mitigate against FMLA liability.

This decision is interesting because it does not focus on the issue typically dealt with by courts: whether notice of serious illness provided by an employee automatically requires FMLA protections. Here, Germanowski’s e-mail that she needed to be out for a week – in light of her past medical issues – could arguably have been read as notice of a serious health condition, triggering FMLA protection. However, the First Circuit decided the case on an alternate ground: that the e-mail did not trigger the firing, which already had been in the works prior to the February 3 notice.

The salient issue for the Court was that the FMLA does not protect an employee for every reason while she is on that leave (or requesting it); it protects her only from firing because she requests or takes the leave. Here, while there was evidence of an “emotionally fraught and longstanding dispute” between Harris and Germanowski, there was, according to the Court, no evidence that Germanowski was terminated in retaliation for asserting rights under the FMLA.

 

Photo from Rachel Simmon’s Website (“Fiona’s Blog, How to Fight with your Best Friend.”)

 

LexBlog