Conventional FMLA wisdom had always been that if an eligible employee gave notice of a need for an FMLA-qualifying leave, the employer was required to designate the time off as FMLA. That wisdom changed, however, with the 9th Circuitâs 2014 decision in Escriba v. Foster Poultry Farms. Escriba held that the FMLA permits an employee to decline to take FMLA leave, even when the need is for an FMLA-qualified reason. No other circuit has followed Escriba (although the Northern District of Ohio did in 2015). Last year the Department of Labor published an opinion letter [pdf] that expressly rejected Escriba, restating the historically prevailing view that an employer cannot delay designating qualifying leave as FMLA leave, even if an employee asks it to do so.
Practically speaking, the denial of an FMLA-qualifying leave as FMLA-designed leave might be a no-harm/no-foul, as long as the employee does not lose any other rights in the process. If the employer permits the employee to take the leave as unpaid, restores the employee to the same or substantially similar job at the end of the unpaid leave, otherwise treats the employee as if they were on an FMLA leave, and does not retaliate against the employee, a refusal to designate qualifying leave as FMLA leave should not cause any legal issues. Itâs no different than having a leave policy more generous than what the FMLA requires ⌠it just grants extra leave on the front end instead of the back end.
Tiffani Murray was one of the first recipients of the Game Changer award when the program launched 10 years ago in 2011. In this Q&A, Murray discusses her journey through HR, what she has learned and how the industry has changed over the years.
Workforce: How have you grown professionally over the course of your career?
Tiffani Murray: I was about 10 years into my career when I was nominated for the inaugural Workforce Game Changer award. I had established myself in human resources and HRIS about five years prior, and had taken my background in computer science and industrial engineering into a crash course of a career change from that of a pure IT project manager. There was so much to learn about employment processes from talent acquisition to sourcing candidates and compensation, benefits, diversity, performance management and succession planning. I am thankful that I had the opportunity to work for the most recognized brand in the world, Coca-Cola, and to learn from some of the best.Â
Over the next 10 years I’ve continued to grow in my career, expanding from my initial specialty area of applicant tracking and recruiting systems to now include everything under the sun when it comes to HRIS. I’ve implemented learning management systems, rolled out performance management programs and technology, upgraded total rewards tools to allow HR to provide new benefit offerings and allow for precise compensation management. To round things out, I’m currently working on a new payroll implementation. I’ve also been afforded new responsibilities and scope, moving from a new manager to a senior management position and landing in a director role reporting to the chief human resources officer.
WF: How has your career changed?
Murray: My career has changed overtime because I’ve been afforded unique and challenging opportunities. I have gone from a consumer products company to contracting at a fast-casual restaurant chain known for customer service and a great chicken sandwich. I have been able to work for one of America’s top homebuilders and
took a turn as a consultant for one of the world’s beloved luxury sports car names. I’m now working for a hometown furniture retailer with 135 years of history behind it that has taken the stance of making HR technology a priority for the business and its employees.
WF: What are some of the changes or trends you have seen in HR over the past few years?
Murray: Technology, technology, technology. Since being named a Game Changer, the shake-ups in the HR tech world in terms of mergers, acquisitions and IPOs were plentiful. They have slowed down and we are left with major HCM solution providers and niche players. Organizations will continue to swap out one for another and other organizations, believe it or not, are still making the move from manual disparate systems to one or two core solutions. There are still companies doing basic HR work, including recruitment processes, on paper, but this has decreased over the last 10 years. Many companies are still not on top of their HR technology strategies. Vendor selection, implementation and core HRIS strategy will be discussion points at the HR executive level and you’ll see more partnership between HR and IT here.
HR processes, including performance management, training, recruitment and assessments are all moving away from desktops and laptops and are essential needs for organizations to have accessible on their tablets, phones and devices. There is also a push for more employee engagement through workforce social channels that allow for informal mentor-mentee relationships, provide an opportunity for formal and informal feedback.
Tiffani Murray, 2011 Game Changer recipient
Artificial intelligence has also been emerging on the scene over the past several years. How HR can use AI most effectively still remains to be seen, but companies are starting to explore this most readily in recruiting and also learning technology.
HR organizations have to now deal with a dispersed workforce that has three or four different generations represented in it. How do you cater to the needs of your outgoing employees who are close to retirement while still attracting the talent of tomorrow to take the lead? You’ll see HR organizations taking a look at benefits plans and programs, specifically vacation and paid time off, including parental and adoption leave and paid volunteer time. Companies that may have once had more of an âin-the-officeâ culture will need to assess how to roll out telecommute and work from home policies that are fair. You will see more HR teams scrambling to make life easier by adopting what many west coast companies already have.Â
WF: What are some things that you value most about your career?
Murray: I love my career as I truly think I have a job that fuses the best of both worlds â working with a company’s most valuable asset, the employee population and also having the opportunity to implement and leverage some cutting edge technology to make processes simpler. Adding this type of value does have a bottom line impact for a business, whether it’s decreasing cost per hire or identifying ways to train employees real time, thus making them more productive to sell or provide services to customers more effectively and efficiently while increasing revenue.
WF: What have you learned over the course of your career in HR?
Murray: I have learned that HR is almost always looked at as the least valuable part of the business. Despite working across a myriad of industries, this has been the same. In every HR department, we have had to work hard to prove our value and worth to the business. I almost expect this now in any new role. I do think that over the past decade the climb has become less steep, but it’s still a climb.
As I search the online archives of Workforce.com for âJack Welchâ in the wake of his death today at age 84, I have come across literally seven pages worth of stories (about 20 stories on each page) that reference the business titan and former head of General Electric.
Thatâs not surprising, given his strong connection to championing the cause of human resources. In 2009, Welch, who in 2000 was named âManager of the Centuryâ by Fortune, was the opening keynote speaker at the annual Society for Human Resource Management conference in New Orleans. Before the conference opened, my former boss here at Workforce, John Hollon, summarized Jack Welchâs influence on theHR profession in a blog post.
To recognize Welchâs passing today, I wanted to share a portion of Johnâs thoughts on Jack Welch from 2009.Â
Hereâs a question you may want to ponder: How important is Sundayâs SHRM conference general session speaker, former General Electric CEO Jack Welch
Answer: Heâs probably the most relevant and topical HR thinker to address the conference in at least the last five years â maybe the most relevant one ever.
Hereâs just one example, from the BusinessWeek column he writes along with his wife, Suzy Welch: âHR should be every companyâs âkiller app.â What could possibly be more important than who gets hired, developed, promoted, or moved out the door? Business is a game, and as with all games, the team that puts the best people on the field and gets them playing together wins. Itâs that simple.â
Or this, also from a recent BusinessWeek column: âLook, weâve written before about HR and the game-changing role we believe it can â and should â play as the engine of an organizationâs hiring, appraisal, and development processes. Weâve asserted that too many companies relegate HR to the mundane busy-work of newsletters, picnics, and benefits, and weâve made the case that every CEO should elevate his head of HR to the same stature as the CFO. HR matters enormously in good times. It defines you in the bad. ⌠If there was ever a time to underscore the importance of HR, it has arrived.â
A 2005 âLast Wordâ column in Workforce Management put it this way, and itâs still true today: âIn Jack Welchâs world, HR is not only a key part of the business, but HR people in the organization need to have special qualities to help the managers throughout the organization build leaders and careers.â
Some might disagree with this assessment, because Welch is also known for creating the infamous 20-70-10 employee assessment plan (known by its critics as ârank and yankâ), where the top 20 percent of GEâs workforce each year got big raises, while the bottom 10 percent were shown the door.
But as critical as he can be, Welch also appreciates what HR means to a high-performing organization. Welch has said that HR leaders should not be âkingmakers or cops, but big-leaguers, men and women with real stature and credibility.â
He will undoubtedly have a message on Sunday that SHRM conference attendees really need to hear.
Mental illness impacts people from every demographic â be it age group, race, job type, socioeconomic group or gender. Still, despite these similarities, low-wage workers face unique challenges to addressing their mental health concerns.Â
The Midwest Business Group on Health held a one-day conference on mental health access and stigma in the workplace last week, and one theme that came up in a few presentations was addressing mental health in low-wage workers. Â
Bruce Sherman â chief medical officer at the National Alliance of Healthcare Purchaser Coalitions, longtime researcher of health issues, and medical director, population health management at Conduent HR Services â did a presentation called âDo wages buy happiness?â He confirmed that, yes, wages are important in the sense that in the past 15 to 20 years, low-wage workers have gotten the smallest pay increases in relation to their income and high-wage workers have gotten the largest pay increases in relation to their income.Â
Needless to say, wages do matter.
The conversation goes past that, though. Sherman is currently working on a research project on this topic whose results are not public yet, but he also provided a high level overview of some the issues low-wage workers may face with mental health care and access.
Worsening income inequality is one reason these workers may face trouble. Another major reason is productivity demands, Sherman said.Â
Rising productivity expectations is not a surprise to me. Research for a few recent stories have led me to data points or findings that support this. For example, according to the 2018 European Agency for Safety and Health at Work report, âManaging Performance Enhancing Drugs in the Workplace: An Occupational Safety and Health Perspective,â workers in low-paid jobs that are not protected under standard labor laws may feel increased pressure to hit certain productivity levels, especially since they are increasingly being monitored by their employers. Not wanting to lose a job they rely on, they may turn to smart drugs. âElectronic means of monitoring employees are likely to be accompanied by an increase in the stresses on workers,â the article noted.
Sherman also informed the audience at MBGHâs event that the perception of mental health stigma may vary by socioeconomic status. There are two types of stigma â public stigma refers to discrimination or stereotyping from other people and private stigma refers to people internalizing stigma in a way that eats away at their self-worth. Low-wage workers often have a greater sense of personal stigma with behavioral health disorders, Sherman said.Â
This type of personal barrier also exists among cost issues and broader, structural barriers, like the lack of available psychiatrists in their insurance network or the the lack of nearby mental health care based on where they live. Â
Sherman suggested a few types of ways employers can address these issues. Through benefits design, they can consider eliminating mental health copays for employees so they can access behavioral health services. Ocean Spray is an example of a company who has done this, as of July 2019.Â
“Some employers offer hourly employees a half day every year specifically to see their doctor for preventive care services, he said. Other employers offer paid sick leave to all employees, including hourly workers. And other employers have ditched ‘just-in-time’ scheduling practices and opted for fixed work hours for all employees â a perk for hourly employees since variable scheduling limits predictable income for employees living paycheck to paycheck.”
Organizations can also leverage community social services that employees could take advantage of, Sherman said. Further, they can consider what workplace contributors may add to behavioral health problems and address those workplace issues.Â
One final suggestion to address mental health in low-wage workers relates to mental health stigma, and I found it rather interesting. Diversity programs could include information that addresses the negative stereotypes associated with mental health problems. I donât know of any diversity programs doing this, but Iâd be interested in hearing from anyone who is involved with a program like that!
Final takeaways from the MBGH conference:
1. Jeremy Nobel â the founder of The Unlonely Project who currently serves on the faculty of the Harvard Medical School in the Department of Global Health and Social Medicine â spoke about the negative impact of loneliness on people. He mentioned that LGBTQ+ employees, minorities and people with major illnesses or disabilities are especially susceptible to isolation, and mentioned some activities to help them feel connected.
This was interesting and valuable in its own way, but what I found was missing from his presentation was what external factors might make some of these groups of people feel isolated at work. These are groups of people that are likely to be discriminated against in the workplace compared to straight people, white people or people without disabilities. If your organization is pushing for these deeper connections between people but not addressing the reality that even casual discrimatation or harassment will stifle these connections, can it really address this issue?
2. Whatâs the actual definition of a crisis? Any time I attend a health-related conference, most every public health issue is deemed a crisis. While I understand some of this mentality, I also wonder how we as individuals, governments or organizations are supposed to pay attention to so many health crises at the same time and give them all the proper attention.
3. I wrote a little about generational stereotypes about mental health last week. My overall argument was that both older and younger employees have health issues, and only paying attention to how millennials or Generation Z âcanât handle stressâ or whatever can be infantilizing. Also, it leaves older people out of a very important discussion about finally getting help for mental health issues.
I want to add one more thought. Business/health conferences tend to have an older crowd. That makes sense; theyâre professionals who have a deep history in the industry. But whereâs the voice of these âyoung peopleâ who apparently have so many more mental health issues than generations before them?
What I think would be interesting is if there was a way for teenagers or young 20-somethings to share their perspective on the mental health of their generation versus older ones. It could be an opportunity for people in different generations to share their stories. For every âKids these days get all their self-esteem from social media and that destroys their mental health!â from a 40-something parent, maybe a 16-year-old could clarify how common or uncommon that actually is. It could be an opportunity to address certain generational stereotypes head-on.Â
Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches ⌠provided you donât use the information unlawfully. For example, to discriminate on the basis of a protected class.
If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.
According to NBC News, McCarrick claims that Amazon fired her after she complained to her supervisor about being made to scour the social media accounts of applicants to determine their race and gender.
McCarrick joined Amazon as a loss prevention manager in July 2018 and was promoted to a regional manager five months later, the suit says.
After her promotion, her supervisor instructed McCarrick to go through the social media profiles of job candidates âfor the purpose of ascertaining race/ethnicity and gender,â according to the lawsuit.
In September, she submitted a written complaint raising her concerns about being told to scour applicantsâ social media accountsâŚ. Two months later, in November, she was called into a meeting with human resources and the director of loss prevention informing her that she was fired.
I am not going to begin to suggest that employers refrain from searching publicly available information on social media to help screen candidates. Social media can provide a treasure trove of information that could disqualify someone from employment. Wouldn’t you want to know, for example, if a prospective employee trashed a former employer, or shared a former employer’s confidential information, or posted racist comments?
What you cannot do, however, is use social media to screen candidates on the basis of race, gender, or any other protected class. This should be common sense, right? Right?
Every year I worry about how Iâm going to fill my annual list of worst employers. Iâve yet to be disappointed.
The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.
The allegations are horrific. The manager is accused of the following.
Repeatedly making sexual comments, sexual innuendos, and remarks to female employees.
Repeatedly touching female employeesâ backs, shoulders, waist, hip/crotch area, buttocks, rubbing his body up against female employeesâ bodies, and standing close behind female employees and staring at them.
Repeatedly touching the breasts of female employees including putting his hand under a female employeeâs shirt and bra.
Pulling on the shirt and bra of a female employee to expose her nipple.
Asking a 15-year-old female employee to send him naked photos of herself.
Yet, those allegations, as awful as they are, arenât what earned this employer its nomination. Itâs what happened after the victims complained that placed this employer on this yearâs list.
Even after the manager ⌠was arrested at work and booked for sexual abuse of the restaurantâs minor employee, he was permitted to return to work.⌠Despite repeated employee complaints and the managerâs guilty plea to misdemeanor harassment, the restaurant failed to stop his behavior or discharge him. Instead, New China fired one female employee soon after she reported his inappropriate conduct and another female employee felt she had no choice but to resign.
If you enable your 50-something manager to sexually harass your teenage workforce, even after employees complain and heâs arrested for and convicted of harassment, you might be the worst employer of 2020.
Buddy Phillips injured his ribs while playing with his grandchildren.
Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.
He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.
In Phillips v. United Trailers, the 7th Circuit Court of Appeals held that in this instance, the employeeâs FMLA rights trumped the employerâs attendance and reporting policy.
Even if Phillips failed to comply with the FMLA by failing to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least nine business days after he first reported his rib injury to United. Under the regulations, United had five business days after receiving notice of Phillipsâs rib injury to determine whether he qualified for FMLA leave.
In other words, an employer cannot rely on its attendance and reporting-off policy to terminate an AWOL employee if the employer is already on notice that an FMLA-qualifying event might be the cause of the employeeâs unreported absences.
So what should an employer do in this situation, when an employee might have triggered the FMLAâs protections? The FMLAâs regulations offer some guidance.
If the need for leave is foreseeable to the employee, it’s a much easier issue. The employee must give 30 days notice, which gives the employer and the employee more than enough time to work out their leave and attendance issues.
If the need for leave is unforeseeable, however, the employee must provide notice of his intent to take leave to the employer as soon as practical under the circumstances. That notice must âprovide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.â Critically, an employee âneed not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.â
The burden then shifts to the employer. The employer must decide whether to designate the request for leave as FMLA-qualifying. Its decision to designate FMLA leave âmust be based only on information received from the employee.â If the employer lacks information about the reason for an employeeâs request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. The employer should not, however, bury its head in the sand and ignore the employee, because if the leave turns out to be FMLA-covered, the employer will have a big legal problem. Just ask United Trailers.
Importantly, the employer only has five business days to notify the employee whether leave will be designated as FMLA-qualifying, absent extenuating circumstances.
Throughout this back-and-forth time period, the employee must comply with the employerâs âusual and customary notice and procedural requirements for requesting leave.â If the employee does not comply with the employerâs usual leave-request requirements, the employer is within its rights to deny or delay the FMLA leave. If, however, the employee provides notice and complies with the employerâs attendance policy, the employerâs failure to timely determine whether the employeeâs leave counts as FMLA-qualifying may constitute an interference with the employeeâs FMLA rights.
These are complicated issues that often do not have cut-and-dried answers and can carry seriously expensive consequences for an employerâs missteps. If an employee presents you with an injury- or illness-related absence that may or may not qualify for FMLA protections, your first call should be to your employment lawyer to make sure that you are handling this issue correctly under the FMLAâs maze of rules and regulations.
My stove and kitchen radio decided to simultaneously conduct a household appliance assault, which triggered a mini-obsession with clocks.
When I set the timer on my stove, the time of day on the clock disappeared, which for some reason bothered me to no end. Already irritated, the annoying Coldplay song âClocksâ blared from the radio.Â
Nice. Now I donât know what time it is, and I have earworm like âItâs a Small Worldâ or âViva la Vidaâ (ugh; Coldplay again), bobbling around my noggin. But then, would âRock Around the Clockâ have changed anything? Jim Croce crooning âTime in a Bottleâ? Maybe it was just my time. Or that time of day. Whenever, wherever, I guess.
Unfortunately my fixation carried over to the next morning.
As I walked past a city water department crew hovering over a trench laying a water main, my time-sensitive brain set me pondering: Do these guys queue up at the crack of dawn, pull their paper time card off of a wall-bound time card rack, punch in on an old-fashioned workforce time clock and then pop it back in the rack before trudging out to a company rig and rambling off to the job site?
As I scurried to catch the train I drifted back to a time when I punched in and out on a workforce time clock for my dad as a plumberâs apprentice and again two summers later on his buddyâs road construction crew.
I got to wondering ⌠what companies still use time clocks? After all, we are in an age where technology makes clocking in and out just an app away on our phones. So naturally, to satisfy my clock-obsessed curiosity, I googled time clocks.Â
Do workforce time clocks still exist? Boy howdy, do they!
I was pleased to discover that there are several companies that still manufacture and sell the old-style workforce time clocks. I was particularly taken by the story behind Lathem Time Corp. The Atlanta-based manufacturer recently celebrated its 100th anniversary, and their company history page reads like the opening line straight out of a college class in Southern literature.
âIn 1919, when George Lathem and his son, Louie P. Lathem began selling time clocks, the father and son sales team traveled by train throughout the Southeast, getting off at the whistle-stops of small towns and looking for the telltale smokestacks of local factories ⌠.âÂ
Which makes me want to add, âThe sulphur burned their eyes as they strode toward the block-long red-brick building ⌠â OK, OK, snap back to 2020. Well, sort of.Â
Plenty of workforce time clocks, like this one manufactured by Lathem Time Corp. in Atlanta, are still in use.
As many organizations move toward cloud-based, mobile time-and-attendance software, I asked Lance Whipple, Lathemâs vice president of sales and marketing, about the viability of using workforce time clocks of a bygone era.
Whipple assured me that plenty of punch clocks are still in use.
âThere are likely a couple hundred thousand Lathem punch clocks still in use daily, and many more when you add in competitive products,â Whipple said. âWeâve sold millions of time clocks to small businesses in our history.â
Punch clocks remain popular with small businesses, he added, and when you consider business needs, workforce time clocks make sense. Sure, we can romanticize their use in the farms and smoke-belching factories of yesteryear, but time clocks are simple to use and as reliable as sweet tea on a steamy Southern summer day.
âAs much as we love time clocks, itâs not a sexy or exciting purchase for most small businesses,â Whipple said. âIt serves a utilitarian purpose. The low cost of ownership is key in the decision making process. A small business can purchase a punch clock for a few hundred dollars, have it up and running in less than 10 minutes and it will provide many years of reliable service,â he said.
So reliable, in fact, that Lathem has heard from customers with workforce time clocks they made more than 50 years ago.Â
And time clocks require virtually no training, Whipple said.Â
âSome small businesses are reluctant to move to more complex technology until they grow to a point where manual time tracking is too much to handle easily.â
Although workforce time clocks are used in primarily blue-collar work environments, Whipple said the size of an organization typically will dictate what type of time and attendance function is in place.Â
âThe smaller the business, the more likely they are to select a punch clock solution over a software-based system,â he said. âThere will always be a need for a traditional punch clock for small business. Some arenât ready to give up pen and paper or commit to the ongoing subscription cost of cloud solutions.â
All that being said, Whipple added that cloud-based applications provide incredible value in managing employee time and attendance.Â
âWe are in a unique position to upgrade a traditional punch clock or older desktop software customers to these new cloud solutions as they outgrow their current product,â he said. âOur cloud-based customers that have made the transition love the access to their employeeâs time and attendance data.â
Armed with my new-found knowledge of time clocks, my obsession has been quelled. Wait, time clocks. Clocks. Clocks!! Arrrrgghh, now Coldplay is stuck in my head again!Â
Can someone sing âItâs a Small World,â please?
An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs.
But thatâs not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. Itâs what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive. NBC News has the details:
West Linn police began investigating Fesser in February 2017 after Fesser raised concerns to his boss, Eric Benson, owner of A&B Towing, that he was being racially discriminated against at work. âŚ
After he raised his concerns, Benson contacted West Linn Police Chief Terry Timeus, his friend, and persuaded to look into allegations that Fesser had stolen from the company, according to the lawsuit.
The suit said the theft allegations were false and unsubstantiated.
But with the approval of West Linn police Lt. Mike Stradley, Detectives Tony Reeves and Mike Boyd used audio and video equipment to watch Fesser while he was at work, according to the suit. The surveillance was âconducted without a warrant or probable causeâ and did not result in any evidence that Fesser was stealing from his employer, the lawsuit stated.
Regardless, West Linn officers, with the help of Portland police officers, arrested Fesser days later based on Reevesâ and Stradleyâs âfalse representationsâ to Portland police that they had probable cause for an arrest. âŚ
Fesser spent about eight hours at the police station before he was released on his own recognizance. He was later contacted by West Linn police to come to the station to retrieve some of his belongings. While he was there, officers informed Fesser that he had been fired from his job, according to the lawsuit. âŚ
According to the lawsuit, criminal charges in the arrest werenât filed until after Fesser sued his employer over his termination and for discrimination. The charges were later dismissed.
If you call in a friendly favor to the chief of police to have an employee falsely arrested after that employee complains of workplace discrimination and harassment, you might be the worst employer of 2020.
Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.
DâMarius Allen worked as an EMT for Ambu-Stat, owned by husband and wife Santos and Rita Ortiz. During the four months Allen worked for Ambu-Stat, she claimed that Santos subjected her to sporadic instances of verbal sexual harassment. For example, he told her she was âprettyâ and âfine as hell.â She also alleged he made three sexually suggestive comments to her.
Three months into Allenâs employment, Rita called her into her office and accused her of discussing her sex life with Santos. Allen demurred that Santos started any sexual conversations between them. Rita ended that meeting by warning Allen that it was inappropriate to discuss her personal life with Santos, as he was her employer. One week later, Rita delivered a disciplinary employee correction form to Allen for having had an âinappropriate conversationâ with Santos while on duty. The form stated that âhaving such conversations while on duty with co-workers (or especially with my husband) is extremely inappropriate and unacceptable.â
Allen responded by explaining to Rita, in writing, that Santos had asked her if her boyfriend was good at oral sex, in response to a lyric in a song on the radio. Allen also wrote that she did want to be âinvolved in any sexual harassment.â Finding Allenâs explanation to be âoutlandish,â âdisturbing,â and âfull of lies,â Rita terminated her.
The 11th Circuit Court of Appeals affirmed the district courtâs dismissal of Allenâs retaliation claim. The court differentiated between bona fide opposition to unlawful discrimination or harassment (protected), as compared to an attempt to apologize and mend fences (not protected). The court concluded that Allen had engaged in the latter. Case dismissed. Employer wins.
This decision is baffling. Allen was in an extraordinarily difficult situation, harassed by one owner-spouse and having to justify her action to the other owner-spouse. She should not have to use âmagic wordsâ to express her discomfort in the situation. (Never mind that she actually did use the magic word âharassmentâ.)
An employer has the same anti-harassment and anti-retaliation obligations to an employee whether the accused harasser is a line worker or an owner. Take the allegations seriously, investigate, correct and do not retaliate. Ambu-Stat failed on each of these steps and is very lucky to have walked out of this case free and clear.
Practically speaking, the denial of an FMLA-qualifying leave as FMLA-designed leave might be a no-harm/no-foul, as long as the employee does not lose any other rights in the process. If the employer permits the employee to take the leave as unpaid, restores the employee to the same or substantially similar job at the end of the unpaid leave, otherwise treats the employee as if they were on an FMLA leave, and does not retaliate against the employee, a refusal to designate qualifying leave as FMLA leave should not cause any legal issues. Itâs no different than having a leave policy more generous than what the FMLA requires ⌠it just grants extra leave on the front end instead of the back end.
Sherman also informed the audience at MBGHâs event that the perception of mental health stigma may vary by socioeconomic status. There are two types of stigma â public stigma refers to discrimination or stereotyping from other people and private stigma refers to people internalizing stigma in a way that eats away at their self-worth. Low-wage workers often have a greater sense of personal stigma with behavioral health disorders, Sherman said. 
Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches ⌠provided you donât use the information unlawfully. For example, to discriminate on the basis of a protected class.
Every year I worry about how Iâm going to fill my annual list of worst employers. Iâve yet to be disappointed.
