Category: Legal

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Wait, an Employer Can’t Fire an Employee on FMLA Leave Caught on Facebook on Vacation?

Jon Hyman The Practical Employer

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave.

Tread lightly, however, before making that decision, for in Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim.

How did the court reach this (troubling) conclusion?
1. Temporal proximity: The employer suspended Jones on the day he returned from his FMLA leave and fired him a few days later. According to the Court, the “close temporal proximity” between the end of Jones’s FMLA leave and the adverse action is sufficient to create a jury issue on the causation prong of his FMLA retaliation claim.
Me: When is the employer supposed to fire him? During his vacation? Wouldn’t that have created an even closer temporal proximity? Or should it have let him return to work and waited months before announcing its decision? Wouldn’t that have created a jury question on the issue of pretext? (How could the vacation genuinely have motivated the decision if the employer waited months to act on it?) The best practice is never to wait but immediately to advise of the consequences. Yet, by suggesting that such immediacy dooms the employer, the Court is placing all employers in a no-win situation.
2. Pretext: According to Jones, the only explanation the employer provided him “was that he was being fired for abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Yet, (a) Jones was not told that he had violated the company’s social media policy or that the company believed he had unnecessarily prolonged his recovery to take a vacation; and (b) because the company lacked a policy that required employees to stay at home or refrain from traveling while on FMLA leave, it could not conclude that he had “violated the ‘spirit’ of medical leave — to rehabilitate and recover.” Therefore, because of these “inconsistencies and contradictions” a jury should decide whether the employer’s explanation was a pretext for retaliation.
Me: The employer advised Jones that it was terminating him for “abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Must it expressly rely on a written policy (social media or otherwise)? Must a company have a policy forbidding employees on FMLA leave from traveling or vacationing? By taking an FMLA leave for one’s own serious health condition, an employee certifies the inability to work, or the inability to perform at least one essential function of the job). If vacation photos posted to Facebook suggest that the employee had recovered and no longer needed to be out on medical leave, how is the employee not abusing his FMLA leave? And how is an employer not justified in firing the employee for this lie?

This result should disturb all employers. I would have reacted the same way as Gulf Coast Health Care, and, frankly still would despite this decision. The employment relationship is based on trust, and once that trust erodes, the relationship is broken (almost always beyond repair). If an employer concludes that an employee has lied about the need to be on FMLA leave, how can it react any way other than termination?

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Congrats to Philip Miscimarra on His Appointment as NLRB Chair

Jon Hyman The Practical Employer

I’m on record as calling Philip Miscimarra “mad as hell,” referring to his scathing dissents in recent NLRB protected concerted activity cases. I also have it on good authority that while he and I agree that the NLRB has gone off the proverbial reservation in these cases, he is not, in fact, mad as hell.

Be that as it may, he has every reason today to be as happy as he can be.

Late last week, President Trump removed the “acting” from Miscimarra’s title as NLRB chair, officially naming him to fill that position on a permanent basis.

Congrats, Mr. Miscimarra. I cannot wait for your board to undo the damage done to employers by the Obama-era NLRB. For example:

Thank you, sir, for putting up the good fight in dissent these past four years. Now, let’s see what you can do as the Head NLRB Member in Charge (once President Trump fills the board’s two vacancies).
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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Court: It’s OK for an Employee to Curse Out His Boss on Facebook

Jon Hyman The Practical Employer

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message.

I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration.

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Because the employee couched his MF’ing rant with a decidedly pro-union message, the appellate court held that section 7 protected him and his post.

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. …

Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace…. Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity. …

Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.

Have no fear, employers, for despite the NLRB’s victory, the 2nd Circuit did find this to be a close case:

We note that this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests.

What can employers learn from this decidedly pro-employee decision?

    1. Timing is everything. Central to most of the court’s logic is the fact that (a) this employee was pro-union; (b) expressed his pro-union sentiment directly in his rant; and (c) such rant occurred a mere two days prior to the union election.
    2. It’s perfectly reasonable to take a stand against profanity in the workplace, but if you are going to do so, be consistent, or least consistent enough such that your first attempt at firing an employee for said profanity is not a pro-union employee two days prior to a union election.
    3. Social media is different, because of its openness and visibility. However, if you are going to rely on that openness to discipline or fire an employee who is using social media to engage in protected conduct because of abusive behavior such as profanity, you best come armed with actual evidence of customer or business disruption, or reputational harm. The mere public nature of the outburst alone may not be enough to justify your action.
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Trump’s ‘Buy American, Hire American’ a Disturbing Slap at Title VII

Jon Hyman The Practical Employer

Last week, President Trump signed his “Buy American, Hire American“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.

Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?

Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.

 

If you read the fine print—that is, the actual language of the Executive Order—you learn that #HireAmerican isn’t really “Hire American”, but instead it’s “hire any American citizen or anyone else legally authorized to work in the United States under our current immigration laws.”
But that’s not how the White House is promoting this Order. It’s being promoted as #HireAmerican, which sends a certain signal to certain xenophobically and/or racistly inclined Americans, who might use this Executive Order to discriminate on the basis of national origin, or race, or religion. “Trump says Hire American, so I’m not hiring that one with the turban, or hijab, or funny accent.” And that’s the exact type of discriminatory misconduct that Title VII is supposed to protect against.
If President Trump wants stricter borders, and to restrict work visas available to foreign nationals, so be it. It’s his prerogative as the President of the United States. If you don’t like it, your remedy rests at the ballot box. However, the White House needs to be careful with its messaging. #HireAmerican sends the wrong message, and will do a whole lot more harm than good, by offering the ignorant and the uninformed a license to hate and discriminate.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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Working Families Flexibility Act Seeks to Legalize Comp Time in Lieu of OT

Jon Hyman The Practical Employer

If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 hours in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.

The Working Families Flexibility Act introduced earlier this year in Congress, seeks to change this rule.

If enacted, the bill would enable employees to earn compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation would otherwise be required. It also:

  • Caps the amount of comp time an employee may accrue at any given time at 160 hours.
  • Requires that employers annually pay out any unused comp time.
  • With 30 days’ notice, permits employers to pay out any unused comp time in excess of 80 hours.
  • Provided for payment of unused comp time upon termination of employment for any reason.
  • Prohibits retaliation.
  • Gives employers the flexibility to schedule requested time off within a reasonable amount of time after it is requests, such that operations are not disrupted.

Critics argue that this bill is a “scam” and “phony”:

Workers may request the time for any purpose they like, including care for a sick child or even baseball opening day. There’s just one hitch: the boss may decide an absence that particular day would “unduly disrupt” business operations and specify an alternative date when the child happens to be well and in school and the World Series has come and gone. Flexibility often is a one-way street. … There are a few other drawbacks. When overtime assignments come around, workers get to choose which option they prefer, pay or comp time. But the boss also gets to make the assignments. Those who need overtime to pay the bills may well be passed over. For them, this bill represents a pay cut.

That argument missed one key piece of the legislation — the decision to choose comp time in lieu of overtime rests solely with an employee.

An employer may provide compensatory time to employees … only if such time is provided in accordance with a [written] agreement arrived at between the employer and employee before the performance of the work … (i) in which the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation; and (ii) entered into knowingly and voluntarily by such employees and not as a condition of employment.

In other words, if an employee values overtime over comp time and would rather have extra money instead of extra time off, then the employee chooses overtime. If an employee, like many these days, prefers flexibility and work/life balance, then the employee chooses comp time. What is the harm? Where is the lack of flexibility? Where is the pay cut?

This bill (which expired five years after it is passed, and will be a test balloon on this issue) strikes an important balance for employees and employers on an issue that has become more and more important to the American worker — flexibility and time. No, it does not solve every problem with a lack of work/life balance (see, paid medical leave), but it is a quality step in the right direction that we should all embrace.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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LGBT Discrimination Coverage Under Title VII Hits the 6th Circuit

Jon Hyman The Practical Employer

The 6th Circuit is considering whether Title VII’s definition of “sex discrimination.”

EEOC v. R.G. & G.R. Harris Funeral Homes alleges that the funeral home fired its funeral director because she is transgender and transitioning from male to female. The Eastern District of Michigan concluded that Title VII does not expressly cover LGBT discrimination, and limited the sex discrimination claim to a sexual stereotyping claim.

The court will hold oral argument later this year. The importance of this case cannot be understated. Circuit courts all over the country are lining up on both sides of this issue. Earlier this month, the 7th Circuit (not renowned for its liberal views) concluded that Title VII’s definition of “sex” expressly covers sexual orientation and gender identity. That decision aligns with the EEOC’s view, but contrasts against holdings of the 11th and 2nd Circuits.

As the circuits take sides on this issue, it becomes more and more likely that a losing party will appeal to the Supreme Court, which will be tempted to resolve this issue.

Stay tuned. The oral argument and ultimate decision in R.G. & G.R. Harris Funeral Homes is one of the key cases to watch in 2017 and 2018.

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2nd Circuit Provides Plan for Employers to Win Misclassification Cases

Jon Hyman The Practical Employer

In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.

In so ruling, the court considered three factors to be crucial as to the “economic realities” of the relationship between company and drivers in this case.

1. The drivers had entrepreneurial opportunities available to them.

The fact that Plaintiffs could (and did) work for CTG’s business rivals and transport personal clients while simultaneously maintaining their franchises without consequence suggests, in two respects, that CTG exercised minimal control over Plaintiffs. First, on its face, a company relinquishes control over its workers when it permits them to work for its competitors. Second, when an individual is able to draw income through work for others, he is less economically dependent on his putative employer. … Plaintiffs here possessed considerable independence in maximizing their income through a variety of means.   By toggling back and forth between different car companies and personal clients, and by deciding how best to obtain business from CTG’s clients, drivers’ “profits increased” through “the[ir] ‘initiative, judgment[,] or foresight’” — all attributes of the “typical independent contractor.”

2. The drivers were personally financially invested in their work.

Regardless whether they actually purchased a franchise, the record also shows that Plaintiffs invested heavily in their driving businesses — another indication that they were “in business for themselves.” … One Franchisor Defendant estimated expenses for an individual purchasing a franchise as totaling between $68,838 and $89,038.30. Such sums constitute a substantial financial outlay on Plaintiffs’ part, even beyond the purchase or rental of the franchise itself, and in essential facets of Plaintiffs’ business operations: vehicle acquisition, fuel, repair, and maintenance, license, registration, and insurance fees, and tolls, parking, and tickets. CTG did not provide reimbursements for these expenses, never mind for discretionary investment in business cards, advertising, or other ventures designed to attract customers.

3. The drivers maintained a high degree of flexibility in how they performed their work.

The ability to choose how much to work also weighs in favor of independent contractor status. … After purchasing or leasing a franchise and securing a suitable vehicle, Plaintiffs set their own schedules, selecting when, where, and how often to work (if at all). Defendants provided no incentive structure for Plaintiffs to drive at certain times, on particular days, or in specific locations, leaving the decision to work “to the whims [and] choices” of its drivers. Likewise, Defendants required no notice on the part of drivers as to when they intended to work, nor did they make any effort to coordinate drivers’ schedules. … Plaintiffs also exercised considerable discretion in choosing when and where to drive. … Additionally, the record demonstrates that, as a matter of economic reality, Plaintiffs accepted and rejected (despite the penalty of being placed at the end of the queue) varying numbers of job offers, a fact indicative of the discretion and independence associated with independent contractor status.

The court, however, was not without a warning for employers in making this important determination between employee and contractor:

To be clear, we note in conclusion the narrow compass of our decision. Specifically, we do not here determine that it is irrelevant to the FLSA inquiry that the Defendants provided Plaintiffs with a client base, that Defendants charged fees when Plaintiffs utilized Defendants’ referral system, or that Defendants had some involvement, if limited, in rule enforcement among franchisees … In a different case, and with a different record, an entity that exercised similar control over clients, fees, and rules enforcement in ways analogous to the Defendants here might well constitute an employer within the meaning of the FLSA.

In other words, at the end of the day, the key inquiry still remains whether, when examining the totality of the circumstances, the “economic realities” of the relationship dictate that “the workers depend upon someone else’s business for the opportunity to render service or are in business for themselves.” Nevertheless, as the Saleem court makes clear, three of the key factors that you should be examining in making this determination for your workers are entrepreneurial opportunities, personal investment, and flexibility, which clearly help establish the legitimacy of the classification of workers as independent contractors, both in the gig economy and elsewhere.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Costco Accountable for not Ending Abuse

Dawn Suppo worked at Costco’s Glenview, Illinois, location between 2009 and 2012.

Between August 2010 and September 2011, a customer, Thad Thompson, harassed Suppo by regularly stalking her around the store, remarking on her looks, asking her about the men in her life and touched her at least twice without her permission. Suppo claims that she was vocal about her complaints of discomfort with Thompson and asked her manager on repeated occasions about prohibiting Thompson’s presence in the store.

Suppo left the company after a year of medical leave that she says was spurred by one final incident in which Thompson became angry at her refusal to let him film her. The EEOC brought suit against Costco on behalf of Suppo, seeking to hold Costco liable for failing to act on Suppo’s complaints of harassment and failing to take reasonable steps to prevent it.

Although Costco claimed that Suppo only submitted two complaints, each a year apart, and each time Costco took concrete action to stop the alleged misbehavior, including eventually terminating his membership and prohibiting him from shopping at any Costco location, a jury nonetheless handed down a verdict against Costco for $250,000.

The jury did not, however, find that Costco acted with reckless disregard for Suppo’s Title VII rights and declined to punish Costco by imposing punitive damages. EEOC v. Costco Wholesale Corp., Case No. 14-cv-6533 (N.D. Illinois, Dec. 20, 2016).

Impact: Employers have a duty to protect their employees from the harassment of customers and must take reasonable steps to prevent any such harassment.

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6th Circuit Avoids Key Legal Issue but Still Absolves UAW of Racial Harassment

Jon Hyman The Practical Employer

Samuel Gompers, founder of the American Federation of Labor, wrote that “[w]herever trade unions are most firmly organized, there are the rights of the people most respected.” But Gompers wasn’t quite right if Tanganeka Phillips’s claims are true; she alleges that one of the largest unions in North America discriminated against her on the basis of race.

When a judicial opinion starts out with a quote such as this, it’s usually not a good sign for the defendant, unless you happen to be the United Auto Workers — the defendant in Phillips v. UAW Int’l (6th Cir. 4/12/17) [pdf], which walked away from some pretty serious allegations of racial harassment.

Tanganeka Phillips, an employee at the MGM Grand Detroit casino and chairperson of UAW Local 7777, claimed that two employees of UAW International, Brian Johnson and Dave Kagels, created a racially hostile work environment toward her. Specifically, over the span of two years, Phillips alleged that she witnessed the following racist misconduct:

  • Kagels listed three union representatives (all black) by name and said he would fire them all if he could.
  • Johnson told Phillips “[w]e need to put a black on staff to calm it down, and was [Phillips] interested?”
  • In addressing Dwight Braxton (another union member) in Phillips’s presence, Johnson said, “Oh, because you’re big and black. You’re her bodyguard, I’m supposed to be afraid of you.”
  • Johnson once said that the “problem with the union was that there are too many blacks in the union.”
  • Johnson made frequent racial comments and spoke in a condescending tone when dealing with black union members as compared to white members.

The last straw for Phillips was when she witnessed Johnson separate member grievances into two piles, a “white” pile and a “black” pile, and stated his intention to withdraw those in the “black” pile.

The court declined to address the legal issue of whether Title VII covers hostile environment claims brought against a union by a member. The court noted that Congress wrote Title VII with different language in the relevant employer and union subsections,  and only in the employer subsection is there a specific prohibition on discrimination with respect to “compensation, terms, conditions, or privileges of employment” (the statutory underpinning of hostile environment claims).

Nevertheless, the court refused to reach that issue, concluding that regardless, Phillips’s claim falls legally short of constituting a hostile work environment.

These incidents, if true, are offensive and condemnable. But they are not actionable as a hostile work environment. … [T]he incidents were isolated and not pervasive or severe enough to alter the terms and conditions of Phillips’s employment. … [T]his court has established a relatively high bar for what amounts to actionable discriminatory conduct under a hostile work environment theory. The misconduct alleged here — a handful of offensive comments and an offensive meeting over a two-year period — does not clear that bar.

And … the court is probably right. A few incidents of minor to slightly less minor severity spread over a two-year period is not sufficiently severe and pervasive to constitute an actionable hostile working environment. However, just because a working environment (or labor union) is not unlawfully hostile does not mean that you should ignore it if it comes to your attention.

Treat all harassment incidents the same (promptly and thoroughly investigate, consider preliminary remedial steps, communicate will all affected parties, and follow through with remedial action to reasonably cure the harassment) and your workplace will be a better place to work.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Promotion After Protected Activity Dooms Employee’s Retaliation Claim

Jon Hyman The Practical Employer

What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.

Sabina Burton, a tenured track professor at the University of Wisconsin, claimed that she suffered retaliation after complaining about witnessing sexual harassment within her department. As a result, she claimed that her colleagues withdrew support for a new curriculum for which she had been advocating. Ultimately, however, the court concluded that a promotion and pay raise after Burton’s claimed protected activity doomed her retaliation claim.

Professor Burton undoubtedly feels that she has been treated unfairly by some of her superiors at the University because she reported alleged harassment and proceeded with this case. Yet the record does not support her claims. During the relevant period, Burton was granted tenure by a unanimous vote and the University held a public ceremony celebrating Burton’s receipt of a grant from AT&T. Dean Throop even sought an upward salary adjustment for her after she had brought a charge with the Wisconsin ERD. Burton’s frustrations may be significant, but they do not amount to actionable retaliation.

 This court (correctly, in my opinion) concluded that no reasonable juror could find that an employer which promotes an employee only months after an alleged harassment complaint would nevertheless harbor a retaliatory motive.
The lesson here is not to promote or give a raise to every employee who engages in protected activity. Instead, take away this lesson. At the end of the day, retaliation and discrimination cases hinge on a “more likely” standard. In considering the totality of the evidence, is it more likely than not that the employer retaliated/discriminated against the employee? That burden becomes difficult for an employee to overcome when an employee — despite some slights and unfair treatment following protected conduct — enjoys subsequent benefits.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.