Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

"Son" and "daughter" under the FMLA

The DOL  recently gave a broad definition to "sons and daughters" under the FMLA.  The DOL subtitles the announcement by saying "Interpretation is a win for all families no matter what they look like."  Secretary of Labor, Hilda Sols, is quoted as  saying  "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill.  No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

Practice pointer.  Although courts have not yet had time to determine if the DOL's broad definition of son and daughter will be applied, it is likely to lead to litigation throughout the country.  Employers should examine carefully requests for FMLA leave by non-biological and non-legal parents on a case by case basis.

More Strange Stories

On June 2nd, I published an entry entitled"Two discrimination complaints where truth is stranger than fiction" which addressed a woman's claim that she was fired because she was too hot and an ex-football coach, who is white, suing the historical black university that dismissed him.  This week, Susan Antilla, with Bloomberg, published an article entitled "Sex harassment at work gets weirder, scarier."  She reviewed EEOC press releases, and come up with some of the stranger complaints made by employees.  I cannot do justice to them, so I would recommend that you read her article. 

Practice pointer.  Truth is stranger than fiction.  I routinely see allegations that make you go Duhhhh.  HR professionals need to continue to monitor the workplace, train the entire workforce on a regular basis, and take every complaint seriously, no matter how strange it may seem.

BlackBerries and Overtime

Last year, I wrote about the possible exposure to claims for overtime pay for the use of PDA's outside the regular 40 hour workweek.  A suit had been filed by various T-Mobile employees claiming that they were entitled to overtime pay since they had to use their PDA's after regular work hours.  NPR recently ran a story about a new class action lawsuit filed in Chicago by police officers.  Cheryl Corley's article, entitled "Using Your Blackberry Off-Hours Could Be Overtime" discusses a lawsuit filed by Sgt. Jeffrey Allen against the Chicago Police Department  alleging that he, together with other officers, had been given BlackBerries by the department and were using them routinely while off duty at the behest of the department, and not being compensated for it.  While using the BlackBerry for a minimal amount of time while off duty may not result in overtime, using 15 minutes a night may, and adds up in a hurry, especially in a class action suit.  Mayor Daley's reaction, as quoted in the article, is somewhat concerning, as he said the suit is "silliness in time of economic crisis" and "We're public servants.  If I asked for that, I'd be paid millions of dollars.  We'd have to take all the BlackBerrys away from the workforce."  Mayor Daley's quote is followed by a quote from Sean Rogers, an arbitrator who happens to be a former Washington D.C. police officer and is now the head of an arbitration firm:  "I don't think that any mayor would say that anti-discrimination laws are silly.  There are similar laws....I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million."

Practice pointers.

As I have written and talked about in the past, it is important for companies to have electronic communications policies, including the use of PDA's away from work.  Companies that permit, or even require the use of PDA's away from work may be subjecting themselves to overtime claims by non-exempt employees.

Additionally, employers should have a policy concerning who will deal with the press.  In my opinion, I would not want a corporate CEO making the statements that were attributed to Mayer Daley: they may come back to haunt him as this case progresses through the court system. 

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The EEOC announced another large settlement involving a large Alabama company.  The EEOC issued a press release on July 1 announcing a $100,000 settlement with McGriff Industries, a Cullman company, to settle a racial harassment and retaliation lawsuit filed by the EEOC.  According to the EEOC, "certain employees and managers in the Cullman facility routinely  used racially derogatory comments, slurs, and insults directed at or about African-Americans. The racial  misconduct escalated to threats and intimidation, including a derogatory threat  to cut one of the black employees. White  and black employees were offended by the racial misconduct, but were rebuffed  and retaliated against -- one employee was terminated and another had  his work assignments changed -- when they complained."

Practice pointer.  Training.  Training.  Training.  Supervision.  Supervision.  Supervision.  I don't need to say any more. 

Health Care Reform amends FLSA to require breastfeeding breaks.  Nursing mothers are now allowed to take a reasonable break when they need to express breast milk, and employers are required to provide a private location, other than a bathroom.  This applies for up to one year after the child's birth.  Employers with less than 50 employees are exempt if "an undue hardship" would be imposed by causing the employer significant difficulty or expense. 

Practice pointer.  As the Obama administration continues to put it's mark on the workplace with new laws and regulations, this is just another one that is now in place and imposes new obligations on employers.

FMLA claim for depression rejected.  The 8th Circuit, in the case of Kobus v. The College of St. Scholastica, Inc. found that  an employer has no obligation to reasonably accommodate an employee under the ADA when the employee did not inform the employer that he needed an accommodation.  Kobus was a painter for the college, and due to personal and family issues, was diagnosed with depression and prescribed Paxil.  He told his supervisor that he was suffering from stress and anxiety, but did not mention the diagnosis of depression.  When he told his supervisor that he needed time off work to deal with his stress, the supervisor placed a FMLA from Kobus's mailbox.  Kobus responded that he did not need leave.  Shortly after, Kobus was written up for excessive absenteeism.  Kobus then asked for "mental health leave" and his supervisor again asked if he wanted FMLA leave, and Kobus advised him that he did not have a doctor to fill out the FMLA form.  Kobus submitted a letter of resignation and received 2 weeks severance.  Kobus never mentioned depression or his medications and did not mention his condition or FMLA leave during his exit interview.  Kobus then sued the College claiming he was forced to resign and he was denied his FMLA rights and was discriminated against under the ADA.  The trial court dismissed these claims on summary judgment, finding that Kobus did not pursue FMLA leave and  "in fact, expressly rejected it", and that the ADA claim was due to be dismissed since he never informed the College that he needed a reasonable accommodation due to a disability. 

Practice pointer.  This decision demonstrated the need to train supervisors on various laws that apply in the workplace, including FMLA and ADA.  The supervisor, even though no mention was made by Kobus for FMLA leave, offered to treat it as such, and Kobus refused.  The Court further found that the ADA was not violated since Kobus never informed the College that an accommodation was needed. 

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This past week was a busy one for the release of opinions by the 11th Circuit in employment related cases.  Two are of particular interest, addressing the FMLA.  In both cases, the court affirmed the dismissal of claims filed by employees who claimed they were adversely effected as the result of their claims to leave under the FMLA.

In Schaaf v. Smithkline Beecham Corporation, d.b.a. GlaxoSmithKline (GSK), Schaaf was a regional vice president for GSK when she became pregnant with her 4th child.  In July, 2002, the same month she reported to her supervisor that she was pregnant and was going to take FMLA leave in early 2003, 3 district sales managers (DSM) lodged complaints against Schaaf alleging unprofessional management style.  This included "antagonistic and inflexible management style, chronic inaccessibility, poor communication skills, harsh and demanding demeanor, and tendency to play favorites, as well about her failure to provide written feedback on performance appraisals, her practice of sharing some DSMs' confidential performance-evaluation information with other employees, her unwillingness to respond to voice-mail messages for weeks at a time, and her failure to acknowledge the contributions of her subordinates."  GSK issued a verbal warning to Schaaf, and instructed her to complete a Performance Improvement Plan, requiring her to issue uncompleted written performance reviews, attend management-training programs and to complete team-building exercises with her subordinates.  Schaaf expressed concern about completing the PIP prior to the commencement of her leave.  The court found that Schaaf "ignored several PIP deadlines, including deadlines to register for the required management courses and to complete the written performance evaluations.  Schaaf even failed to meet the deadline for simply returning a signed copy of the plan to her superiors."  The deadlines were first extended from December, 2002 to January, 2003, and then to after her return from maternity leave.  While on leave, an interim RVP took her position, and the region functioned significantly better while she was gone.  Numerous deficiencies in Schaaf's work were also discovered, productivity had increased, communications had improved and morale was higher.  Immediately upon her return, Schaaf was given the choice of a demotion to DSM or leave GSK.  She accepted the demotion and sued alleging a violation of the FMLA.  The Court found that reinstatement under the FMLA is not an absolute right:  rather, "an employer can deny reinstatement if it can demonstrate that it would have discharged the employee had she not been on FMLA leave".  GSK met it's burden of showing that the reasons she was not reinstated were unrelated to the FMLA leave.  The Court further found that
"Schaaf was demoted because of managerial ineffectiveness that revealed itself in full only in her absence; she was not demoted because (i.e. for the reason that) she took FMLA leave."

In Krutzig v. Pulte Home Corporation, Krutzig was hired in January 2005 as a sales associate selling homes in Pulte housing developments in Sarasota, Florida.  In June, 2007, she fell and injured her foot, and did not initially request any leave.  In July, 2007, Krutzig received 2 written warnings from her supervisor and was placed on a 30 day performance improvement plan.  On August 17, 2007, Krutzig contacted a Pulte HR representative and requested FMLA leave during the time she was scheduled to have surgery on her foot.  Krutzig attempted to get her immediate supervisor to sign off on the forms, but was not able to locate her.  On the same day, Krutzig met with a disgruntled customer, who called the "home office" to complain about Krutzig.  On Saturday, August 18th, Cooper, Director of Sales for Pulte, made the decision to terminate Krutzig.  She was informed of this decision when she returned to work on Monday, August 20th.  Cooper made the decision to terminate Krutzig based on her failure to address the issues in her PIP as well as the problem with the customer he spoke with.  Cooper testified that he was not aware of her request for FMLA leave at the time he made the decision to terminate her.  Krutzig filed a complaint, alleging she was terminated as the result of FMLA retaliation and FMLA interference.  The 11th Circuit affirmed the granting of summary judgment in favor of Pulte's favor, finding that "Temporal proximity alone, however, is not sufficient to establish a causal connection when there is unrebutted evidence that the decision maker was not aware of the protected activity.  Further more, knowledge on the part of persons other than a decision maker cannot be imputed from other supervisors to the decision maker for purposes of an FMLA retaliation claim."  Concerning the FMLA interference claim, the court found that to establish such a claim, "an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied....if an employer can show that it refused to reinstate an employee for a reason unrelated to the FMLA leave, the employer is not liable for failing to reinstate the employee after the employee has taken FMLA leave."  For the first time, the Court addressed the issue of whether the FMLA right to commence leave is absolute, finding that "the right to commence FMLA leave is not absolute, and that an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave." 

Practice pointer.  I have often said that the mere fact that an employee is a member of a protected class, such as eligible for FMLA leave, does not mean that disciplinary action cannot be taken against him/her so long as it is not based on the protected activity.  In both of these cases, the facts were very clear that disciplinary action would have been taken notwithstanding the exercise, or attempt to exercise, FMLA rights.  Employers must approach these cases with caution, as each case is fact specific, and the decision to discipline employees who are attempting to exercise, or who have exercised their FMLA rights, can lead to time consuming and costly litigation. 

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On October 29,2009, President Obama signed into law the  Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).  The new law includes an expansion of the recently enacted exigency and caregiver leave provisions for military families under the FMLA.  In January, 2008, Congress amended the FMLA to provide for Exigency Leave up to 12 weeks of leave for urgent needs related to a reservist family member's (spouse, son daughter or parent) call to active service.  H.R. 2647 expands the exigency leave benefits to include family members of active duty service members.  Under the current law, only family members of National Guard and Reservists were eligible for "exigency leave". 

The FMLA previously provided Caregiver Leave, up to 26 weeks of unpaid leave to an employee to care for a family member (spouse, son, daughter, parent or next of kin) who is injured while serving on active military duty.  H.R. 2647 expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment. 

Practice pointer.  HR must be aware of these changes and be prepared to deal with issues involving the expanded coverage of the FMLA as it applies to exigency leave and caregiver leave. 

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As I was watching the news this morning, there were numerous reports of H1N1 flu being reported at schools around the state.  Many experts expect that it will spread throughout the country, reaching pandemic proportions.  As the H1N1 flu continues to spread, it raises many issues for the workplace.  First, the question is how to prevent it's spread.  The CDC's website has a great deal of information addressing the prevention of the spread of the flu.  Wash your hands often, if you sneeze or cough, do it into a tissue and throw it away, sanitize surfaces (clorox wipes seem to work), and if you are sick, stay away from others for 24 hours after the fever breaks. 

Another issue is the impact of the ADA on the workforce in relation to the H1N1 flu.  At pandemicflu.gov, there is a FAQ section.  Questions can be asked of the workforce about the flu if done correctly.  The website sets forth the following:  "An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity)."  Before asking any of these questions, employers should review this website and/or consult with their attorney to ensure that the are in compliance with the ADA.

H1N1 flu may also have FMLA implications.   Assuming an employee qualifies for FMLA leave,  he/she may be entitled to FMLA leave if they are suffering from the flu.  The employee would need to be absent 3 or more days, and would have to be treated by a health care provider on at least 2 occasions or visit a health care provider 1 time, resulting in a regimen of continuing treatment under the supervision of the health care provider.

Practice Pointers  The experts are predicting that the Swine Flu will have a major impact across the country.  It is already being felt in Alabama in numerous schools and colleges, and is creeping into the workplace.  HR needs to prepare now, if it has not already done so, to cope with the problems that may be caused by the flu.  The problems may include extended absences, controlling the spread of the flu, and making sure that there is enough manpower to get the work done.  Don't be tempted to permit sick workers, or their children, to be at the workplace.  Finally, treat all employees the same.  If an employee does not have any leave time left, and does not qualify for FMLA leave, do you provide additional paid time off? Unpaid time off? Termination?  Whatever the decision is, it must be consistently applied to all of the workforce. 

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Beginning today, January 16, 2009, the Department of Labor's regulations concerning the FMLA are now in effect.  Based on my review of the final regulations, I believe that the following 3 components of the FMLA will have the most impact on employers.

1.  Military caregiver leave and qualifying exigency leave.  Eligible employees who are family members of covered servicemembers are now able to take up to 26 work weeks of leave in a single 12 month period to care for a covered servicemember with a serious illness or injury suffered in the line of duty while on actiive duty.  For a more detailed discussion of this change, please see my blog entry of December 4, 2008.

2.  Employer notice obligations and new forms.  Employers are now required to give employees general notice of the FMLA, through a poster and either an employee handbook or upon hire, an eligibility notice, notice of rights and responsibilities, and a designation notice.  There are new forms published by DOL  and available on the  DOL website.

3.  Adoption of the Ragsdale decision.  The United States Supreme Court decided the case of Ragsdale v. Wolverine World Wide Inc, which found that an employer does not need to provide additional FMLA leave as a penalty for failure to appropriately designate FMLA leave.  The final rule, although removing the prior categorical penalty provisions, does find that when an employee suffers individualized harm due to the failure to properly follow the notification rules, the employer may be liable.

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The Seattle Business Journal recently reported that in a survey of companies in the United States and Great Britain, corporate counsel expected the number of lawsuits filed against their companies  to increase in 2009.  Fulbright and Jaworski's 5th annual Litigation Trends Survey shows that 34% of companies are anticipating increased litigation in 2009, as opposed to 22% who predicted increased litigation for 2008.  The report goes on to state that in-house counsel reported increases in wage and hour litigation and privacy claims. 

As we rapidly approach 2009,  the Americans With Disabilities Amendment Act of 2008, with an effective date of January 1, 2009, and the new FMLA Regulations, with an effective date of January 16, 2009, will, in my judgment, lead to an increase in litigation in these areas.  Now is the time for employers to educate their HR professionals, managers and supervisory staff so they can effectively deal with these changes.

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The Department of Labor published its Final Rule to implement the FMLA amendments on November 17, 2008.  The effective date of the amendments is January 16, 2009.  Section 585(a) of the National Defense Authorization Act for Fiscal year 2008 provided two new leave entitlements for Military Family Leave:

1.  Military Caregiver Leave.  Family members who qualify for FMLA are entitled to take up to 26 weeks of leave in a single 12 month period to care for a covered service member who has a serious illness or injury that was incurred in the line of duty while on active duty.  The definition of "Family Member" for Military Caregiver Leave goes beyond the FMLA definition to include spouse, parent (including step-parent and foster parent, but not in-laws), son, daughter and next of kin (up to first cousins).

2.  Qualifying Exigency Leave.  This leave is applicable to families of National Guard and Reserve members to help manage their affairs while on active duty.  Family members, otherwise qualified for FMLA leave, are entitled to up to 12 weeks of FMLA job protected leave for any qualifying exigency, which includes:

     a.  Short term deployment (leave up to 7 days)

     b.  Military events and related activites

     c.  Child care and school activities

     d.  Financial and legal arrangements

     e.  Counseling

     f.  Rest and recuperation (leave up to 5 days)

     g.  Post-deployment activities

     h.  Addtional activities (agreed upon by the employer and employee as to nature and duration)

Practice Pointers 

1.  As our servicemembers continue to be deployed, their qualifying family members are entitled to new types of leave.  HR and supervisors should be made aware of these changes and how they may impact their employees.

2.  The new leave also applies to certain post-deployment activities.  Again, HR and supervisors need to be made aware of these changes so that they can addrss these issues as they arise.

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The Department of Labor recently issued extensive (over 750 pages) FMLA regulations, effective January 16, 2009. Among other things, these regulations address Military Family Leave, allowing up to 26 weeks of leave to care for a servicemember. These  regulations attempt to reconcile the differences between the 2008 FMLA amendments, existing military law, and USERRA.

I will continue to update you as to what I believe are the important issues created by the new regulations as we get closer to January 16, 2009.

Practice Pointers

1. Get ready to train your HR staff concerning the new FMLA regulations.

2. Train your front line supervisors concerning the FMLA process in light of the new FMLA regulations.

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