By: Ogletree Deakins

The 3d U.S. Circuit Court of Appeals has held that a health clinic’s statements to a physician and to immigrations officials regarding the physician’s “at least three year” employment commitment did not create an employment contract that would override the doctor’s employment at will status. Edwards v. Geisinger Clinic, 3d Cir., No. 11-1528, Jan. 23, 2012.

Phillips Edwards is a licensed physician from the United Kingdom with a specialty in interventional radiology. While working in Kentucky under a temporary visa, Edwards was recruited to work at Geisinger Clinic’s interventional radiology department in Danville, Pennsylvania. During the recruitment process, Edwards was informed that Geisinger requires its physicians to obtain board certification from the American Board of Radiology (ABR), which requires 4 years of uninterrupted employment in an approved residency program.

Edwards was asked whether he understood that he would have to be at Geisinger for at least 4 years and would have to be board certified within 6 years, or “Geisinger would have to review [his] situation.” Edwards indicated his understanding, and was provided an offer letter dated July 11, 2006 that included the fact that Edwards “will be granted 4-6 years from the date of employment to become board certified” and that if he didn’t, “continued employment . . . will need to be reevaluated.” This offer letter was sent to the ABR by Geisinger to ensure that Edwards would be able to sit for the boards. At some subsequent point, Edwards also signed a “Practice Agreement” in which he acknowledged that his employment with Geisinger “may be terminated at any time by either party for any or no reason.”

After signing the offer letter, Edwards returned briefly to the U.K. at the expiration of his temporary visa. At that point, Edwards and Geisinger communicated with U.S. immigration authorities to obtain an H-1B visa, which would allow Edwards to return to the U.S. and work for Geisinger. In order to obtain that visa, Edwards and Geisinger had to represent that Edwards “had at least a three year employment commitment” in the U.S. Based on representations made, Edwards received the visa, and began working for Geisinger in 2007.

In May 2008, Geisinger terminated Edwards’ employment. Edwards brought a lawsuit against the clinic for breach of contract. In September 2010, the lower court granted summary judgment in favor of Geisinger, finding that Edwards’ employment was at-will. Edwards appealed that decision, arguing that he and Geisinger had entered into an express employment contract for a definite term. The Third Circuit disagreed, and upheld the lower court’s dismissal of the case.

Like laws in many other states, Pennsylvania law presumes that employment is at-will. To overcome that presumption, an individual must show “clear and precise evidence” of the parties’ intention to form an employment contract for a definite length of time. Evidence that an employer “hopes” that an individual will remain in its employ is inadequate to prove that an employment contract was formed. In this case, the Court held that the language concerning employment for four to six years was “too vague to establish an express contract for a definite term.” Further, the Court pointed to language in the employment offer that implied that Edwards would lose his employment if he failed to become board certified within the allotted time, and held that such language clarified the board certification requirements, rather than promised continued employment for that length of time.

Importantly, the Court also held that the absence of an at-will disclaimer in the offer letter does not indicate that the parties contracted for a definite term. Further, the Court found that language that an employer will discharge only for “just cause” does not establish an express or implied contract that could only be terminated for that just cause. In addition, the Court pointed out that an H-1B visa does not guarantee employment for the maximum duration of the visa. In fact, the Immigration and Nationality Act specifically includes language to indicate that an employer may dismiss a worker before the expiration of that time. Therefore, sponsorship of an individual for such a visa does not imply that the sponsor has guaranteed employment for the full period of the visa’s duration.
 

In a case that adds to a split among federal appellate courts, the 7th U.S. Circuit Court of Appeals has held that a company’s insistence on an employee being “100% healed” after a medical leave does not necessarily support the employee’s legal claim under the Americans with Disabilities Act (ADA). Powers v. USF Holland, Inc., 7th Cir., No. 10-2363, December 15, 2011.

Keith Powers, a truck driver for USF Holland, Inc., injured his back in a work-related incident. After returning from a workers’ compensation leave, Powers returned to his job as a long-haul driver, and worked successfully in that position for two years. Because his wife was expecting a child, Powers asked to be transferred to a city driver route, which would keep him closer to home. However, unlike the long-haul job, the city route included frequent entering and exiting of the truck cab, and loadings and unloadings of the truck with a forklift. After the switch to city driver, Powers again began to have problems with his back and asked to transfer back to long hauls. That request was denied on the basis that the collective bargaining agreement did not allow for more than one job transfer within a one-year period.

Powers took a medical leave, after which he requested to return to work with certain restrictions that would limit him to long-haul driving, including limited dock work and loading and unloading. USF informed him that he could not return to work until he submitted a full medical release containing no work restrictions.

Powers filed a lawsuit claiming that by enforcing its “100% healed” policy, USF had discriminated against him because of his disability. The district court dismissed Powers’ ADA claims, holding that because Powers was capable of long-haul driving, he was not substantially limited in the major life activity of working. Therefore, Powers was not actually disabled within the meaning of the ADA, which requires a “substantial limitation in a major life activity,” and the 100% healed rule was not impermissibly applied to him.

On appeal to the Seventh Circuit, Powers argued that he was disabled because USF regarded him as disabled, which also would bring him under the protections of the ADA. Under the ADA’s “regarded as” prong, an employer must believe (rightly or wrongly) that the employee has a medical impairment that substantially limits him from some major life activity. In addition to agreeing with the lower court’s assessment that Powers’ impairment did not rise to the level of a substantial limitation under the ADA – that is, Powers was not actually disabled – the Seventh Circuit held that because USF did not view Powers as unable to work for other employers, USF did not regard him as substantially limited in the major life activity of working, and that therefore, application of the company’s “100% healed” policy to Powers did not violate the ADA.

The U.S. Supreme Court, in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), held that “an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment – such as one’s height, build, or singing voice – are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” (In Sutton, two visually impaired pilots who were not chosen for positions as “global airline pilots” were not disabled, because they were qualified and able to hold numerous other positions within the aviation industry.) Therefore, a particular impairment could disqualify an individual for a specific job, so long as that impairment did not substantially limit the individual from working for other employers in a class of jobs or from a broad range of jobs.

While this holding seems to support the application of a “100% healed” policy, employers who deal with return-to-work requests may also have to review state workers compensation laws, Family and Medical Leave Act issues, and requests for accommodations, and should not assume that the application of a “100% healed” policy will avoid all problems associated with medical impairments.
 

As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011, at which time employers would have been required to post written notices consistent with the rule. However, in October 2011, the NLRB announced its decision to postpone the implementation date for the notice until January 31, 2012. Since that time, the legal challenges to the rule having continued. The federal judge hearing arguments on the matter in Washington, D.C. last month told the board attorneys that either the effective date would have to be further extended, or she would enjoin the NLRB from implementing it, as she needed more time to consider the briefs and oral arguments presented by both sides in the case.

On December 23, 2011, the NLRB agreed to postpone the effective date of the notice-posting to April 30, 2012. The Board stated that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in a parallel action challenging the rule. In October 2011, Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office stated that the Board’s initial postponement of implementation would “permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions for an unfair labor practice under the NLRA and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may extend the time within which employees may file ULP charges against that employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule, and a link to the preamble that summarizes the provisions of the final rule. Employers should also know that along with the obligation to post the rule will come the right to post a notice to employees of their right to choose not to unionize – however, wording of such a notice should be discussed and cleared with legal counsel prior to posting it.
 

In order to support a valid claim of retaliation under the Family and Medical Leave Act (FMLA), an employee must demonstrate that the reason given for an adverse employment action was pretextual, and that the employee’s request for or use of FMLA leave was the actual basis of the action. The 6th U.S. Circuit Court of Appeals has held that an employer’s rejection of an invalid FMLA certification was a valid reason for termination, and that the employee’s inability to proffer evidence of an alternate explanation for the company’s actions led to the dismissal of her lawsuit. Coffman v. Ford Motor Company, 6th Cir., No. 10-3842, unpublished opinion, 11/22/11.

The FMLA entitles eligible employees to twelve weeks of unpaid leave each year for, among other things, a “serious health condition” that precludes the employee from performing his or her job. Employers are prohibited from discriminating or retaliating against an employee who exercises her FMLA rights. In order to succeed on a claim of retaliation under the FMLA, an employee must first present a prima facie case that includes her eligibility for FMLA leave, the fact that she took the leave, and the fact that an adverse action was taken against her. The burden then shifts to the employer to provide a legitimate business reason for its action. Once that is done, the employee cannot succeed on a retaliation claim unless she can prove that the proffered reason is actually a pretext. To establish pretext, the employee must either show that the proffered reason had no factual basis, that the given reason did not actually motivate the action, or that such reason was insufficient to warrant the action.

Jami Coffman began working for Ford Motor Company in July 1999. In 2004, she had frequent absences, which she attributed to health issues. Although she provided medical documentation for many of those absences, she failed to provide valid and timely information for ten periods of absence within an eight moth period. Those ten occurrences led Coffman into the company’s disciplinary process, established under a collective bargaining agreement, resulting in her termination. That termination occurred shortly after Coffman had been diagnosed with sleep apnea. Coffman then sued Ford, claiming that her termination was the result of her request for FMLA leave. The district court granted summary judgment in favor of the company, and the Sixth Circuit upheld that decision, holding that Coffman fell short of demonstrating that Ford’s reason for the termination was pretext for FMLA retaliation.

Under the company’s written policies, employees requesting FMLA leave would receive documents to be completed by a physician within 15 days. The policy specifically pointed out that incomplete certification could cause absences to be viewed as “absence without leave,” which could lead to discipline up to termination.

Coffman submitted paperwork that consisted of two forms that provided two divergent diagnoses for the absences, and neither included supporting information. Further, the signatures on the documents differed markedly from signatures of the same doctors on medical documentation previously submitted by Coffman. Faced with the contradictory, questionable certifications, Ford sought clarification by asking Coffman to request medical records to support the certifications. In response, Coffman’s doctor provided a single document that included only a list of medications. Rather than supporting the initial certification, this information simply created new contradictions. Ford took no further action, and viewed the absences as unexcused, which ultimately led to Coffman’s termination and her subsequent law suit.

In spite of Coffmans’ argument that Ford improperly classified her as AWOL, the Sixth Circuit found that although FMLA certifications that contain all required information are presumptively valid, an employer can rebut that presumption by demonstrating that the certification is invalid, contradictory, or of an otherwise suspicious nature. Here, the certifications submitted were medically contradictory and the inconsistent signatures created suspicion. To its credit, the company took the additional step of asking for further information in an attempt to clarify the contradictory nature of those certifications. However, that supplemental information actually increased the confusion, supporting the company’s decision to deny FMLA leave for the absences.

Employers cannot avoid liability under the FMLA simply by arbitrarily labeling an employee’s certification as “invalid.” Incomplete FMLA certifications are distinguishable from invalid ones. When a certification is incomplete – that is, it does not provide sufficient information to justify FMLA leave – an employee must be provided with a reasonable opportunity to cure any alleged deficiency. The regulations that support the FMLA make it clear that employers must work to clarify certifications offered by employees, and can do so by asking for a second opinion from a different provider (at the employer’s expense), or get permission from the employee to clarify or authenticate questionable certification with the healthcare provider. It is in the best interest of both employers and employees to use these discretionary measures to avoid disputes that could lead to disruptive and expensive lawsuits.
 

Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors with contracts/subcontracts of over $10,000 for the purchase, sale, or use of personal property or non-personal services, specifically including construction services. Contractors/subcontractors that have a contract/subcontract of at least $50,000 and at least 50 employees are required to prepare and maintain an Affirmative Action Program (AAP) to document efforts to comply with Section 503.

The federal government’s Office of Federal Contract Compliance Programs (OFCCP) has proposed revisions to regulations that implement and enforce Section 503. Those revisions set forth certain data collection obligations and establish utilization goals to be met by contractors to assure the effectiveness of affirmative action efforts. The major points included in the proposed revisions are: (1) increased contractor obligations for data collection and AAP content related to disabled employees; (2) expansion of requirements regarding outreach agreements and specific affirmative methods for hiring the disabled; (3) addition of written reasonable accommodation procedures.

Under the proposed rule, contractors will be required to document and annually update calculations of referral data, applicant data, hiring data (including the "hiring ratio" of disabled employees to total hires), and "job fill ratio" (job openings to job hires). Contractors must conduct ongoing analyses of the data to assure effectiveness of affirmative action policies. Part of the data will be obtained through contractors’ solicitation – under the provisions of the new regs – of voluntary self-identification of disabled status from employees and applicants. The OFCCP asserts that such self-identification does not violate the provisions of the ADA, because both the ADA and Section 503 permit contractors to conduct a pre-offer inquiry into disability if it is made pursuant to a law requiring affirmative action for individuals with disabilities (i.e., the Vietnam Era Veterans’ Readjustment Assistance Act).

The revised regs also would require contractors to list all employment opportunities in specific outreach and recruitment efforts, including "linkage" agreements with the nearest State Vocational Rehabilitation Agency office, or with other organizations in a network specified in the regs. The proposed revisions specifically require contractors to send written notification of the company’s affirmative action efforts to subcontractors and subcontractor vendors/suppliers to request similar action on their parts to assist individuals with disabilities.

An added section of the proposed regulations require each contractor with an AAP to develop and implement a written policy outlining procedures for processing requests for reasonable accommodation. The provision lists the specific elements that must be included in such policy, including contact information, a description of the process, a timeframe for the processing of such requests, and a mention of the confidentiality of the process. This is in addition to revised AAP content requirements that include a mandatory statement from the contractor’s CEO indicating support for the AAP, a comprehensive annual review (revised from "periodic") of related processes, external and internal dissemination of the AAP, and the development and maintenance of an audit and reporting system that will be used to evaluate the company’s affirmative action efforts.

The OFCCP has concluded that the establishment of a national goal for hiring individuals with disabilities is warranted. Therefore, the proposed regulations include a specific "utilization goal" of seven percent for all federal contractors. That percentage will apply for each EO 11246 job group in a contractor’s workforce. The OFCCP also is considering the establishment of a sub-goal of two percent for the hiring of individuals with certain severe disabilities, including blindness, total deafness, paralysis, and intellectual and psychological disabilities.

While the proposed regulations do not include any requirement for "priority consideration" of individuals with disabilities in recruitment or hiring, the proposal does include a section encouraging contractors to voluntarily develop and implement programs that provide such consideration. Contractors choosing to use such a program must include a description and a report of outcomes in its AAP.

On November 30, 2011, the Office of Management and Budget (OMB) approved the OFCCP’s Notice of Proposed Rule Making, in which the OFCCP outlined its proposed revisions to strength the affirmative actions provisions of Section 503. (The OMB evaluates the effectiveness of various agency programs and policies, and sets funding priorities for them. It also ensures that proposed legislation is consistent with the federal budget and policies.) The approval means that the proposed rule changes are now published in the Federal Register, and a final opportunity for comment is open until February 7, 2012. Comments can be submitted through

http://www.regulations.gov, or in writing to Debra Carr, Room C-3325, 200 Constitution Avenue NW, Washington, D.C. 20210. The reference number, which should be included with comments, is (RIN) 1250-AA02.

 

The proposed Section 503 regulations expand both the scope of recruitment and hiring of disabled individuals, and data collection/reporting requirements for contractors. One of the most critical provisions, however, is one requiring contractors to provide training to personnel involved in recruitment, hiring, promotion, and disciplining. That training should include the contractor’s affirmative obligations under the regs and should outline the benefits of employing individuals with disabilities, as well as informing such personnel of the contractor’s legal obligations in this area. Comprehensive, objective training in this area can help to alleviate some of the burden that the new regulations are perceived to impose.

On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, a qualification standard – including a high school diploma requirement – that screens out individuals on the basis of a disability must be job related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act.

A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant’s ability to perform the fundamental responsibilities of the job in question. However, that measurement is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with an accommodation.

That means that, for instance, if an employer requires a high school diploma as a baseline for hiring, and that baseline screens out an individual with a learning disability, the employer must fulfill both steps of the process in order to comply with the ADA. Specifically, it first must demonstrate that a high school education is a job related requirement for the particular job, and that the essential functions of the job cannot be effectively performed by someone without a high school diploma. It must then go one step further, and determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation. If that particular applicant is able to perform the essential functions of the job, despite the inability to meet the qualification (high school diploma), the employer cannot use the lack of diploma to screen out the disabled applicant from the applicant pool.

While this rationale was set forth in an “informal” letter from the EEOC to an employer and does not have the force of law or regulation, it is worthy of notice. While an employer is not required to “prefer” a learning disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards.
 

Remarks by a law firm’s human resources director could be “direct evidence” of pregnancy discrimination and violation of the FMLA, according to the 7th U.S. District Court of Appeals. According to the court, such evidence falls outside of the “hearsay” objection that might otherwise keep it from being presented to a jury. Makowski v. SmithAmundsen LLC, 7th Cir., No. 10-3330, November 9, 2011.

Lisa Makowski was employed as Marketing Director for the SmithAmundsen law firm between January 2005 and her termination in February 2008. During her employment, Makowski received annual salary increases and discretionary bonuses based on her performance. In the summer of 2007, Makowski informed the firm’s management that she was pregnant. She requested, and was granted, leave under the Family and Medical Leave Act. Between November 5 and November 25, Makowski worked from home with the firm’s permission, as she had been placed on bed rest by her obstetrician. She began her FMLA leave on November 26, and gave birth on December 2.

In January 2008, the firm’s Executive Committee conducted its firm retreat, at which it annually assessed the overall structure of the firm to determine whether staffing changes were necessary. At that retreat, the Executive Committee decided to terminate Makowski and to move another individual into the leadership position with the Marketing Department. After that meeting, the Committee informed the firm’s Human Resources Director, Molly O’Gara, that Makowski didn’t “fit into our culture,” and asked O’Gara to consult with outside counsel to discuss the implementation of Makowski’s firing.

On February 4, 2008, while Makowski was still on maternity leave, her employment was terminated over the telephone. In that conversation, Makowski was told that her position was being eliminated as part of an organizational restructuring. Later that day, Makowski came into the office to pick up her personal belongings. According to Makowski, as she was leaving the office, she was met by O’Gara, who told her that the actual reason for the termination was because of Makowski’s pregnancy and FMLA leave, and that the same thing had happened to several other women employees in the past. O’Gara allegedly suggested to Makowski that she should speak to a lawyer about a possible class action on the issue.

Makowski filed a lawsuit on December 2, 2008, alleging violations of both the Pregnancy Discrimination Act and the Family and Medical Leave Act, and cited O’Gara’s alleged remarks as direct evidence of discrimination. The firm moved for summary judgment, and the motion was granted, based on the fact that because O’Gara had not been directly involved in the decision to terminate Makowski, her statements concerning the termination were inadmissible hearsay. Without those statements, Makowski lacked evidence of the connection between her termination and any discriminatory acts by the firm.

On appeal, the Seventh Circuit reversed that decision. It found that because O’Gara’s statements concerned a matter within the scope of her duties as HR Director, they fell within an exception to the hearsay rule. Essentially, that exception means that the agent acting within the scope of his or her employment with the company speaks on behalf of the company and that, therefore, his or her statement is actually a party admission that can be used to support a claimant’s case. Here, O’Gara’s alleged comments to Makowski fit within the scope of O’Gara’s duties as an HR Director who was involved in the firm’s hirings and firings. Further, the court pointed out that O’Gara’s discussions with outside counsel at the request of the Executive Committee could actually support an argument that O’Gara was directly involved in the final decision to fire Makowski, since the Committee waited for the counsel’s imprimatur before implementing the termination.

This case sets out an important lesson for employers and underscores the need for training for managers, supervisors, and HR personnel, especially with respect to having the difficult conversations needed for disciplinary and termination meetings. The importance of the use of “talking points” for disciplinary and termination meetings cannot be overstressed. Any remarks outside of pre-established, pre-rehearsed talking points could be used – as in this case – to argue to the jury that the “official” reason given for the adverse action was simply a pretext for discrimination.
 

The Pregnancy Discrimination Act (PDA) requires employers to treat pregnant employees in the same manner as other employees who are not pregnant, but who are similarly situated in their ability or non-ability to work. That means that under the PDA, a woman who is unable to work because of pregnancy-related illness is entitled to sick leave or benefits only on the same basis as employees who are unable to work for other reasons. Based on that rationale, a part-time salesperson recently was unable to convince the 10th U.S. Circuit Court of Appeals that she was denied leave and later fired on the basis of her pregnancy. Anderson v. The Cato Corporation, 10th Cir., No. 11-3003, October 27, 2011.

Because the Tenth Circuit was reviewing a summary judgment ruling, it was required to view the evidence in the light most favorable to Anderson, assuming her asserted facts to be true. In February 2008, Cynthia Anderson began her employment as a part-time sales associate with The Cato Company. After a few months, the company was considering her for a full-time assistant manager position. On April 9, 2008, Anderson discovered that she was pregnant; she informed the company on the following day. Anderson then asked for "couple of days off" to get some mediation for her nausea. According to Anderson, the store manager seemed "okay" with that request. However, Anderson claimed that she called on April 15 to inform the store manager that she had been admitted to the hospital and would need additional time off, and was told that she had been terminated from her associate position, but that the store manager would attempt to hold open the assistant manager position for her. Later that week, when Anderson called again, she claimed that she was told that the assistant manager position had been awarded to another employee.

According to Cato’s records, Anderson’s personnel records indicate a "voluntary termination" because of "complications with Pregnancy." The Recommended for Rehire box on the form was checked as "Yes." Anderson never sought to be rehired by Cato.

Because she planned to apply for unemployment compensation and public assistance, Anderson requested from Cato a letter setting forth the reasons for her termination. In response, a store manager wrote that Anderson was terminated "due to pregnancy related illnesses." The letter went on to explain that Anderson, who had only worked for the Company for two months, was not eligible for leave under Cato’s policies.

Anderson filed a legal action under the PDA, arguing that the company’s letter was direct evidence of a violation of that Act. However, the lower court granted Cato’s motion for summary judgment, holding that Cato terminated Anderson’s employment because she was unable to work and was not entitled to leave. That decision was upheld by the Tenth Circuit on Appeal.

The Tenth Circuit first determined that Cato’s written statement regarding the reason for Anderson’s termination was not direct evidence of discrimination. It based that determination on the fact that the letter was not an admission of illegal activity, but was an explanation of the fact that Anderson needed leave to which she indisputably was not entitled. It then went on to say that Anderson failed to proffer any evidence that Cato’s policy of terminating employees who needed extended leave to which they were not entitled, then offering to hire them back when they were able to work again, was not evenly applied to all employees regardless of whether the employee was pregnant.

Employers should not view this decision as a "free pass" to end the employment of individuals who ask for additional leave time to which they are not entitled under company policies. Because the case was before the court as a PDA claim – and not a claim under the Americans with Disabilities Act or any associated state-law disability statute – it is unclear whether the same rationale would apply if the case had included a claim under the ADA, since various courts have viewed requests for additional leave time as potential requests for reasonable accommodation that should be honored unless they create an "undue hardship" for the company. Such requests therefore should be reviewed on a case by case basis, with an eye toward the ADAAA regulations that were updated in March of this year.

The U.S. Commission on Civil Rights (USCCR) has posted a report which recommends that the Equal Employment Opportunity Commission (EEOC) modify its position that the use of “English-only” policies is a presumptive violation of Title VII of the Civil Rights Act.  See EEOC’s guideline at 29 C.F.R. § 1606.7 (2010). This report sets up an interesting dichotomy in the analysis of such policies by two governmental agencies, both of which ostensibly were formed primarily to insure civil rights.

While most individuals are aware of the existence of the EEOC, fewer have heard of the USCCR and its mission. The USCCR was established under the Civil Rights Act of 1957 (which was primarily a voting rights bill signed by President Eisenhower after the Brown v. Board of Education decision in 1955)  as an independent, bipartisan, fact-finding federal agency.  Its mission, according to its website, is “to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.”  It does so by reviewing alleged deprivations of voting rights and alleged discrimination based on race, color, religion, sex, age, disability, or national origin, or in the administration of justice.  The agency plays a vital – but widely unrecognized – role in advancing civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern both to the federal government and to the public.

Although the USCCR has been referred to as a civil rights “watch dog" that works to ensure that the federal government is enforcing civil rights laws fairly and evenhandedly, the original Commission was not configured to act as such.  Originally, all of its members were appointed by the President and were subject to dismissal at any time.  Also, because the Civil Rights Act first came into effect in 1964, the early USCCR had no actual civil rights laws to oversee.  However, in recent years, the agency has publishing significant studies and reports on a wide range of the civil rights, including peer-to-peer violence and bullying, race neutral enforcement of the law, and even human trafficking.

The USCCR’s recent report on English-only rules stems from a conference held in December 2008 at which the issue was discussed and analyzed at length by a number of experts in the field.  A transcript of the conference and resulting briefing – which was carried live on C-SPAN – is available on the Commission’s website, www.usccr.gov, and by request from the Publications Office, U.S. Commission on Civil Rights, 624 Ninth Street, NW, Room 600, Washington, DC 20425, (202) 376-8128.  Based on the testimony provided by panelists, and on discussion with Commissioners, the USCCP adopted findings and recommendations on various courts’ acceptance or rejection of the EEOC guidelines, the potential reasons, both good and bad, behind employer English-only policies, and actions the EEOC and Congress might take to clarify and improve the state of the law as applied to English-only policies under Title VII.

The USCCR’s primary recommendation stemming from the conference is that the EEOC’s guideline at 29 C.F.R. § 1606.7 should be withdrawn, and that instead, employers and employees should be informed that English-only policies should be prohibited only when it can be shown by a preponderance of evidence that the policy was adopted for the purpose of harassing, embarrassing, or excluding employees or applicants for employment on account of their national origin.  This view could indicate a subtle shift in the burden of proof in cases involving English-only policies.  Under the EEOC’s guideline, an English-only policy is presumed to be violative of Title VII unless the employer can show that the policy was enacted for a legitimate business reason; under the USCCR’s interpretation, an employee would have to show evidence of the purpose for which the policy was enacted, and prove that such evidence contravened Title VII.

Employers who have considered the implementation of an English-only policy should be aware that this issue has come into the limelight, and that further discussion and/or proposed legislation is possible.

 

The Family and Medical Leave Act (FMLA) prohibits employers from interfering with an employee’s right to take leave for which that employee is eligible under the Act. Recently, the 7th U.S. Circuit Court of Appeals overturned the dismissal of an employee’s FMLA lawsuit, and sent the case back to the lower court for further proceedings. A jury will now decide the issue of whether the individual’s employment termination was based upon his announcement that he was going to take four to six weeks of leave time for knee replacement surgery. A supervisor’s e-mail that references an upcoming medical leave will be a primary element of the employee’s claim. Shaffer v. American Medical Association, 7th Cir., No. 10-2117, October 18, 2011.

William Shaffer first worked for the American Medical Association (AMA) in 1999. Although he resigned a year later, the AMA rehired him in 2004 as a contract employee. In 2005, he was hired as a full-time employee, and advanced to become the AMA’s Director of Leadership Communications, reporting to supervisor Michael Lynch. In August 2008, the AMA began cost-saving measures, including a request to all departments to reduce budgets and, ultimately, to eliminate positions. In October 2008, Lynch was contacted by the Chief Marketing Officer, Marietta Parenti, who requested a recommendation regarding the elimination of one position in Lynch’s group. It was Lynch’s plan to eliminate the Communication Manager position held by Peter Friedman, based on certain business-related reasons. On October 28, Parenti asked Lynch whether it made sense to eliminate Shaffer’s position, as well. Lynch responded that further eliminations would not be in the AMA’s best interest at that time.

On November 20, 2008, Shaffer informed Lynch that he was planning to take 4 to 6 weeks off in January in order to undergo and recover from knee replacement surgery. On November 30, Lynch sent an e-mail to Parenti, explaining that he had re-thought his recommendation, and now believed that the AMA should eliminate Shaffer’s position and retain Friedman. The e-mail apologized for his “11th hour change of heart,” and specifically stated that the team already was “preparing for [Shaffer’s] short-term leave in January, so his departure should not have any immediate negative impact.” On December 4, Shaffer was notified by Lynch and Harvey Daniels, an AMA HR representative, that his position was being eliminated and that his employment would end on January 4, 2009.

Less than a month later, an after receiving a letter from Shaffer’s attorney, the AMA’s in-house lawyer met with Daniels to let him know that litigation was possible on the matter. The next day, Daniels typed up handwritten notes that he had taken regarding his earlier discussions with Lynch, back-dating them to November 25, 2008. The typed notes stated that Shaffer’s position was eliminated because Lynch could have the speech writing staff report directly to him, making Shaffer’s position redundant. He then shredded the original notes.

Shaffer filed a lawsuit in federal court. The lower court granted summary judgment in favor of the AMA, and dismissed his claim. Shafer then appealed to the Seventh Circuit, which analyzed the case to determine whether or not there was a genuine factual issue for trial. The Court found that Shaffer was eligible for FMLA leave, and that he had provided notice to Lynch of his intention to take that leave. Prior to that notice, there was no mention of elimination of Shaffer’s position; after that notice, he was targeted for termination. Based upon those facts, coupled with Lynch’s e-mail to Parenti in which the proposed leave was mentioned, the Seventh Circuit determined that a reasonable jury could conclude that Shaffer’s exercise of his right to take leave under the FMLA was a motivating factor in the decision to eliminate his position. It then reversed the lower court’s dismissal of the case.

While the Court also pointed to the different explanations given at different times for Shaffer’s termination, it clearly was Lynch’s e-mail to Parenti – which specifically mentioned Shaffer’s request for leave – that created the impetus for the lawsuit, and the foundation on which Shaffer’s FMLA claim rests. While it is possible that Shaffer’s proposed leave had no actual impact on his termination, the e-mail allows Shaffer to argue that Lynch was considering that leave when the decision was made to eliminate Shaffer’s position. This situation is a clear example of the need for supervisor training on the FMLA. Supervisors and managers should be informed that a claim of interference with FMLA rights does not require proof of actual “intent” to interfere, but requires only that plaintiffs prove that the employer somehow denied an exercise of rights under the Act. If an individual can produce evidence that he was fired to prevent his exercise of FMLA rights, he can succeed on an interference theory under that Act.