Jon Hyman – Page 10

January 23, 2014June 20, 2018

When is 1,250 not 1,250? Hours Worked Versus Hours Paid for FMLA Eligibility

For an employee to be eligible to take leave under the Family and Medical Leave Act, the employee must have been employed for at least 12 months, and have at least 1,250 “hours of service” during the previous 12-month period.

Hours of service means hours actually worked by the employee. It does not mean hours paid. Thus, paid non-working time — such vacations, holidays, furloughs, sick leave, or other time-off (paid or otherwise) — does not count for purposes of calculating one’s FMLA eligibility.

What does this rule look like in practice? Saulsberry v. Federal Express (6th Cir. 1/10/14) provides an example. In support of his claim that Fed Ex wrongfully denied leave under the FMLA, Pernell Saulsberry relied upon a document entitled, “Federal Express Corporation Employee Monthly Trend Report.” That report listed his “HR PAID TOT” for the previous 12 months as”1257.29.” The same report, however, listed Saulsberry’s “HR WKD TOT” as “1109.29.” At deposition, Saulsberry admitted that the “Paid Tot” included paid time off during which he performed no services for Fed Ex, and the “Wkd Tot” accurately reflected the number of hours he had actually worked. Thus, because he worked less than the required 1,250 hours, the 6th Circuit concluded that Fed Ex legally denied his request for FMLA leave.

This case illustrates the importance of accurate time records. Whatever time tracking and payroll system you use, it must have the ability to differentiate between time paid and time worked. It saved Fed Ex from an FMLA claim in Saulsberry, and it could likely save you too if an employee is on the 1,250-hour FMLA bubble.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

January 13, 2014June 20, 2018

Context Matters: Cursing as Religious Harassment

The year was 1985. I was 12-years-old and spent the summer at overnight camp. When you spend 8 weeks alone in the woods with a dozen other 12-year-old boys, you curse, a lot. After 8 weeks of “f-this” and “f-that,” it shouldn’t have surprised my parents when, at the dinner table on my first night home from camp, seeking seasoning for my meal, I asked my mom to “pass the f***king salt.” Needless to say, they were very surprised, and very unamused.

I thought of this story after reading Griffin v. City of Portland (D. Ore. 10/25/13), a case in which an employee of deeply religious convictions claimed religious harassment based, in part, on her co-workers’ repeated taking of the Lord’s name in vain.

The court concluded that a line exists between the use of general profanity in the workplace and the use of profanity directed at the plaintiff because of her religion:

The record suggests that Parks and Recreation employees at the Mt. Tabor yard frequently used profanity out on the yard and in the office. Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.

With language, context matters. For example, it was okay to use salty language to ask for the salt at summer camp; at the dinner table with my parents, not so much. Similarly, Griffin’s employer will skate on her harassment claim if she cannot prove that her co-workers cursed “because of” her religion.

Nevertheless, employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees.

January 10, 2014June 20, 2018

The Ethics of Class-Segregated Bathrooms

True story. I just learned of a company (not a client) that maintains two sets of bathrooms — one for its “office” employees and one for its “warehouse” employees — and never the twain shall meet. The company forbids the warehouse workers from using the office restrooms. I’m not sure if the converse is also true, but given the air of snootiness that would lead to such a policy in the first place, I doubt management would grace the warehouse restroom with its presence.

Do I need to tell you that you are sending the wrong message to your workers if you have class-segregated bathroom? Or, am I off-base?

Readers, what do you think?

January 9, 2014June 20, 2018

Blackballing as Retaliation

Do you remember Diana Wang, the unpaid intern who sued Hearst Corporation, claiming that the publisher violated that Fair Labor Standard Act by not paying her? Two years later, she claims that she cannot find work as a result of her lawsuit.

Let’s break this down. Filing a lawsuit claiming a violation of the Fair Labor Standards Act (or Title VII, or the Americans with Disabilities Act, or the Age Discrimination in Employment Act …) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone who filed a lawsuit claiming a violation of the FLSA (or Title VII…) is illegal retaliation.

So, if Wang can prove that prospective employers are not hiring her because of her prior lawsuit against a former employer, then she would have a good retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.

Employers don’t like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against — provided, of course, that the applicant can prove the prior lawsuit was the reason (or a motivating factor, depending on the nature of the underlying protected activity) for the failure to hire.

What’s the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Wang’s. If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.

January 6, 2014July 16, 2019

It’s Time to Update Your Severe-Weather Policy

How bad is the weather going to be in Cleveland today? It’s so cold that even the Horseshoe Casino is closed. You can’t even get hot at the tables.

In light of these historically frigid temperatures, I’m re-sharing a post I ran all the way back in 2010 on workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

Communication. How will your business communicate to its employees and the public whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes? Phone chains, email blasts, text messages, and even social media updates are all effective tools to communicate this essential information.
Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?
Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?
Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?
Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

Please be safe and stay warm.

December 17, 2013June 20, 2018

How the ADA Covers Organ Donors

Every now and again I come across a case that offends my sensibilities. Rope v. Auto-Chlor Sys. of Wash., Inc. (Cal. Ct. App. 10/16/13) is one of those cases.

When Auto-Chlor hired Scott Rope as a branch manager in September 2010, he told his new employer that he planned to donate a kidney to his physically disabled sister in February 2011. In November 2010, he formally requested a 30-day leave of absence for the kidney donation and his recovery thereafter. His manager promised to “look into it.” Instead, on December 30, 2010, he fired Rope.

The court had little issue concluding that Rope’s disability discrimination claim could proceed. “Rope has thus met his burden to show the adverse employment action occurred under circumstances raising a reasonable inference that the disability of his or her relative or associate was a substantial factor motivating the employer’s decision.”

A few points to consider about this case:

The Americans with Disabilities Act does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. Thus, Rope could not claim that Auto-Chlor discriminated against him by denying time off as a reasonable accommodation.
California has a specific statute that requires 30 days of paid time off “to an employee who is an organ donor … for the purpose of donating his organ to another person.” Rope claimed that Auto-Chlor terminated him avoid having to incur the expense of his paid leave pursuant to that law, which, in turn, equated to disability discrimination. The court agreed.
Even without this specific organ-donation statute, however, the ADA likely nevertheless requires time off (albeit unpaid) for organ donation and the recovery thereafter. The ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

I’ve written before about the need to put the “human” back in “human resources.” This case is a textbook example. When Auto-Chlor hired Rope, it knew: (1) he had disabled sister, and (2) he needed time off to donate a kidney to her. Is is inconvenient for an employer to provide a month off to a new employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of that leave request? Absolutely not. This decision is likely illegal, but it is also undoubtedly inhuman. It is that inhumanity that will cost your company dearly in front of a judge or a jury.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. You can also follow Hyman on Twitter at @jonhyman.

December 16, 2013June 20, 2018

Infertility is Fertile Ground for Disability Discrimination Claims

I’ve written before about employers getting themselves in trouble for pregnancy discrimination for firing employees while undergoing fertility treatments (here and here). Last week, the Equal Employment Opportunity Commission announced the settlement of case involving a different kind of “infertility” discrimination — the Americans with Disabilities Act.

A Hawaiian resort retailer will pay $60,000 for discriminating against an employee because of her fertility treatments and eventual pregnancy.… According to the EEOC’s suit, a female retail buyer in Honolulu informed the company that she began treatments for infertility in 2011. Upon disclosure of her disability, a company official allegedly made offensive comments about her intentions and became even less receptive upon disclosure of her pregnancy later that same year. The buyer was disciplined after disclosing her need for fertility treatments, and then discharged.…

Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability—with equal and careful consideration of reasonable accommodation requests.”

The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores, Inc. (W.D. Mich. 2001), a federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the Americans with Disabilities Act Amendments Act, the Act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).

While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments, or otherwise discriminate against employees undergoing fertility treatments, could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.” In other words, this issue is very much on the EEOC’s radar.

Infertility and its treatments are stressful on parents-to-be. Unless you’ve experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it’s difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, are both time consuming and time sensitive. Do not exacerbate an employee’s stress by toying with their time away from work. Moreover, with this issue on the EEOC’s enforcement radar, employers that deny time off for fertility treatments may find themselves as the start of the EEOC’s next infertility-related press release.

December 12, 2013June 20, 2018

A Festivus for the Rest of Us (at Work)

Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.

“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.

As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.

Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.

So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?

Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.

December 10, 2013June 20, 2018

If You’re Taking an Employee’s Deposition, Don’t Charge Them for a Day Off Work

Today’s blog post is a multiple-choice quiz.

An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:

A. Charge the employee attendance disciplinary points for missing work to attend his deposition;

B. Permit the absence as unexcused with no points accumulated?

If you chose “A,” you might be liable for unlawfully retaliating against that employee, at least according to the court in Younger v. Ingersoll-Rand Co. (S.D. Ohio 12/3/13).

The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.

Under the Supreme Court’s generous adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.

Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat it when dealing with an employee who engaged in protected activity.

December 5, 2013June 20, 2018

When an Extended Leave of Absence is NOT a Reasonable Accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the Equal Employment Opportunity Commission says that hard-capped leave of absence policies violate the Americans with Disabilities Act. For another, if an employee, returning from a Family and Medical Leave Act leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?

Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.

Comfort Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.

Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.

In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:

Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.

Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.

If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:

The cost of the accommodation.
The employer’s overall size, number, composition, structure, and functions of employees, and the financial resources.
The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
The relationship of the facility in question to the overall operations of the employer.