Category: Legal

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Labor Department Publishes New Employer FMLA Guide

Since I recently cut a check to the IRS for the balance due on my taxes, I thought I’d take today’s space to review how the federal government spends our tax dollars. Today’s examination? The Department of Labor’s newest publication, The Employer’s Guide to the Family and Medical Leave Act [pdf]. 

According to the DOL, this 71-page guide:

is designed to provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA. The Guide is organized to correspond to the order of events from an employee’s leave request to restoration of the employee to the same or equivalent job at the end of the employee’s FMLA leave.

So, has the DOL wisely spent our tax dollars in publishing this new FMLA guide? After reviewing the Guide, I have to concur with the thoughts of Jeff Nowak, who, at his FMLA Insight’s blog, who summarized his conclusions about this Guide:

“1. It follows the FMLA regulations and the course of a typical leave request in a relative orderly manner. 

“2. It contains easy to follow flowcharts so that employers can better understand the typical FMLA process, including a cute little “Road Map to the FMLA” that provides an overview of the FMLA process. You’ll even find some interactive cartoons along the way to further explain the regulations. 

“3. It includes “Did You Know?” sections to give employers a heads-up on some of the lesser-known provisions and nuances of the FMLA regulations. 

“4. It highlights user-friendly charts and explanation of the medical certification process, including what information is required in certifications. 

“5. It provides a helpful overview of military family leave, which often can be a bit overwhelming to employers attempting to navigate this portion of the FMLA.”

Look at it this way. For companies with 50 or more employees, the FMLA ranks very highly on the list of HR headaches. If this guide answers even one question for an employer, it has justified its publication.

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Is Your Employee Handbook a Contract of Employment? Well, Does it Have a Disclaimer?

Employee handbooks come in all shapes and sizes. For example, some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. Some grant formal appeal rights to employees who are disciplined or terminated. And some set forth terms of compensation, benefits, and time-off.

Is your handbook a contract of employment or a compilation of discretionary policy statements? The answer depends on whether your handbook has a disclaimer telling employees that they are at-will and cannot rely on the handbook as a contract.

In Staschiak v. Certified Logistics, an Ohio appellate court considered whether a commercial truck driver could enforce his former employer’s handbook as a contract of employment as to his terms of compensation. Because the handbook lacked any disclaimer language, the court held that he could.

We recognize that there is case law rejecting an employee handbook as a contract, with several such cases cited by the appellees. In each of these cases, however, there was specific language within the handbook claiming that the handbook was not a contract, and clearly showing no intent to be bound by it.… In the present case, there is no language within the handbook either claiming that it could be changed at the employer’s discretion or that it did not form a contract.

This issue really is as simple as whether your handbook says, or more accurately doesn’t say, that it’s a contract. So, dust off your employee handbooks, flip to either the front or the back, at scan for a policy that looks something like this:

Employees of the Company are not hired for any specific term. Accordingly, their employment relationships with the Company are “at will” relationships. Employment at will means that employees are free to resign from their positions at any time, with or without cause, upon oral or written notice to the Company. Similarly, the Company may end the employment relationship with any employee or change an employee’s status (for example, modify a position, promote or demote an employee, adjust compensation, etc.), with or without cause, for any reason or no reason, subject only to applicable laws (such as the laws against discrimination), upon oral or written notice to the employee. The decision to stay or to leave, whether it is the employee’s decision or the decision of the Company, is in the sole discretion of the party making that decision.

The Company does not intend that anything in this Handbook constitute an employment contract or an offer of an employment contract, express or implied, or that this Handbook be in any way deemed by any person, including the Company or any employee, to create any legally binding rights to continuing employment or to specific terms or conditions of employment.

No persons other than the President of the Company can enter into an agreement for employment for a specified period of time, or make any agreement or representation contrary to this employment at will policy. Further, any such agreement must be in writing and signed by either the President.

Without language like this, you are leaving yourself open to a claim that your handbook is a contract, and a handbook that is a binding contract might be worse than no handbook at all.

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They Call Me James … and Jim, Jimmy and Sometimes Jimbo

To take a page out of Eminem’s lyric book, my name is what? My name is who?

No, my name is James, and you can call me … James.

Based on the response I got from a rare Facebook rant I made over the weekend, I get the feeling this is something many of you deal with on a daily basis: people creating nicknames for you without asking.

I understand why people go with nicknames first. They think it adds that personal charm, that “Oh, we’re buddy-buddy” sort of feel, but some people can be touchy about what people call them. And you can include me on that list.

It’s quite common for me to get an email from someone I don’t know with the friendly opening of, “Hey, Jim, I’d like to talk to you about this or that” or the quick closing of “Thanks, Jim, for thinking of us.”

You might think it sounds pompous for me to say this, but my name is James. It’s not Jim, Jimbo or Jimmy. James is what’s on my birth certificate, and it’s what people have called me — outside of close family members — since the third grade. Big revelation here: My parents preferred the nickname Jamie, so I was Jamie until the third grade, and they and some other family members sometimes still call me that. Bigger revelation here: There are some family members on my wife’s side who do call me Jimbo on occasion. There’s a story behind it that makes it more endearing, but I won’t get into that here.

But as for James, in the third grade my teacher asked me what I wanted to be called. No one had ever asked me before. Everyone had always called me Jamie. To be able to choose what people called me? It was an empowering moment I’ll never forget.

I didn’t know the word at the time, but I gravitated toward the euphonious “S” in James. It just felt and sounded right to my ear.

At that instance, my mind raced like Ralphie’s inner voice in “A Christmas Story.”

“Should I go with what people know and say, Jamie?” I thought. “No, this is my chance to be heard, to be who I really want to be.”

I was finally going to get my way, which is something I had discussed in my head for gosh knows how long. “I go by James,” I said. There, I’d said it. After all those years of acting as this Jamie person, I finally had gotten the opportunity to choose what people would call me.

It was liberating.

It was great.

It was name-tastic.

Since then, I’ve always gone by James. Yes, there have been nicknames along the way, such as Generic T. Long story, but my twin brother had worn a shirt with his then-seventh grade nickname to school one day, so one of the basketball coaches decided I was now to be known as Generic T. It stuck for a couple of years.

Then someone in college called me Double T for reasons I still don’t understand. And a few people along the way have called me James with the Spanish pronunciation.

Don’t get me wrong, I don’t have problems with nicknames, but, especially in the business setting, I don’t think people should randomly brand people with a nickname. We shouldn’t assume Susan wants to be called Sue, Douglas wants to be called Doug or Margaret prefers Peggy. And a John McKenzie shouldn’t be called “Johnny Mac” without his consent. Names are personal. Names are a big part of who we are.

When I contact someone I don’t know, especially via email, I use the name I find on a company website or social media outlet. If I’m still not sure what name to use, I use the last name with a courtesy title. Of course, I’d say, “Here’s to you, Ms. Robinson” instead of “Mrs. Robinson.” Hey, hey, hey.

And I certainly don’t think managers should create nicknames for personnel who report to them. Well-intentioned or not, unrequested nicknames can come off as condescending.

So what’s my name? It’s James. If you call me Jim, I might cringe, but I’ll get over it quickly. But if you really feel the need to call me a nickname instead of James, I guess I’d prefer Jamie. It’s grown on me a little over the years, but just a little.

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The Wacky World of Work: When Unions Add a Pinch of ‘Salt’

Adobe Stock image

In the first “Wacky World of Work” podcast, host James Tehrani interviews James Walsh about his book “Playing Against the House.” Walsh spent two years as a union “salt” trying to organize Miami-area casinos. Walsh gives an insider’s perspective on what “salting” is, and offers his perspective on how he would have handled things had he been on the labor side of the equation. He also discusses his role in a case that the National Labor Relations Board ruled on. Click the play button below to listen.

 

 

 

 

 

 

 

 

 

Photo credit: Cory Vanderploeg

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How to Address Transgender Employment Issues in the Workplace

Title VII of the Civil Rights Act of 1964, the federal law prohibiting discrimination by private employers, does not expressly prohibit employment discrimination based on gender identity or expression. The U.S. Equal Employment Opportunity Commission and many federal courts, however, have held Title VII prohibits discrimination against transgender individuals. An increasing number of state laws provide similar protection.  

Currently, 19 states, the District of Columbia, and Puerto Rico have laws expressly prohibiting discrimination based on gender identity or expression. Employers therefore cannot afford to ignore the rights of transgender employees.

As acceptance grows, local governments have added gender identity to their anti-discrimination ordinances. For example, 11 counties and 23 cities in Florida, which cover 56 percent of Florida residents, have similar human rights ordinances. Additionally, in December 2015, New York City released new guidelines clarifying gender identity and expression protections under its Human Rights Law and setting forth hefty fines for violations.[1]

Recommended Practices

By revising existing policies and engaging in training, employers can foster a work environment where transgender employees are treated with respect and that reduces the likelihood of complaints by these employees. With these goals in mind, employers should consider the following steps:

Policies and training: Revise handbooks, equal opportunity, anti-harassment, open-door and similar policies to include “gender identity and expression.”

Create gender-neutral dress codes so an employee undergoing a gender transition may dress consistently with their gender identity while complying with the same standards applicable to other employees.

Train managers and employees on company policies and its complaint procedure, which should provide employees several different avenues for raising complaints and list the potential consequences of noncompliance.

Transition plan: As soon as possible after an employee announces their intent to transition, a manager and/or human resources professional should be designated as the person who will manage the transition. The employee and the designated person should then create a transition plan addressing whether the employee will take time off for medical procedures, and if so, how much; the date the employee will first transition at work; whether the employee plans a name change, and if so, when; the pronoun the employee prefers; and how co-workers should be informed about the transition and when.

Next, the employer should educate its managers regarding gender transition, discuss the transition plan and address any questions and concerns. Management should be cautioned regarding confidentiality until the transition has been announced and discuss the plan for co-worker education.

After the discussions have occurred, but before the transition date, the employer should meet with the transitioning employee, the employee’s direct supervisor(s), and the person designated to manage the transition (if someone different from the direct supervisor) to discuss the final transition plan.

Employees’ questions and concerns: After the employee’s transition is announced, the employer should educate co-workers on how to refer to the transitioning employee and employee privacy issues.

Restroom and locker room access: After an employee begins presenting full time in the gender to which they are transitioning, the employee should be permitted to use the restroom corresponding to that gender. A transgender employee does not need to have reassignment surgery or present medical documentation to use the restroom associated with their gender identity. If a co-worker is uncomfortable sharing a restroom with a transitioning employee, the co-worker — not the transgender employee — may choose other options (unisex restroom, if available; restrooms on other floors).

Name and pronoun changes: An employee has the right, without a name change, surgery or medical documentation, to be addressed by the name and pronoun that corresponds to their gender identity. The intentional or persistent refusal to respect an employee’s gender identity may constitute harassment. Management must use appropriate names and pronouns and swiftly address any employee failing to do so.

Record changes: Upon request, an employer should change an employee’s official record — as well as email address, the company telephone directory and any name plate — to reflect a change in name or gender. Payroll records might require a legal name change before the employer can alter the records.

Employers might be hesitant to proactively institute new policies and practices regarding transgender employees. But, as the law moves toward greater protection for transgender employees, employers run grave risk by not acting aggressively in this area. 

Denise Visconti is office managing shareholder of Littler’s San Diego office, Theresa Waugh and Kimberly Doud are of counsel in Littler’s Orlando office. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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Intermittent FMLA Does Not Permit Sleeping on the Job (Usually)

Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?

According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.

On the FMLA retaliation claim, the court concluded that the employer had a legitimate non-discriminatory reason for the termination (sleeping on-the-job), and that there existed no evidence of pretext.

The Sixth Circuit has determined that sleeping on the job is a legitimate, nondiscriminatory basis for termination when the employer has a clearly-established policy.… Although Plaintiff disputes the Hospital’s proffered reason that she intentionally removed herself from her labor patient’s room and went to sleep across the hall, Plaintiff has not put forth evidence which demonstrates that the Hospital did not “honestly believe” the facts before it and the eyewitness accounts of Plaintiff’s co-workers.

On the FMLA interference claim, the court found no evidence that the plaintiff had actually requested FMLA leave after experiencing the onset of a migraine during her shift. Instead, she admitted that she, of her own volition and without telling anyone, went to lay down in a empty room after feeling dizzy.

Furthermore, the evidence shows that the Hospital initiated discussions with Plaintiff about accommodating her health condition; that the Hospital immediately approved Plaintiff’s application for FMLA intermittent leave at her one-year anniversary; and prior to September of 2014, Plaintiff used intermittent FMLA leave without any problems.

While the question this post asks may seem silly, there is a potential pitfall for employers.

If an employee approved for intermittent FMLA asks to lie down because of the FMLA-approved medical condition, or otherwise gives notice of the intent to invoke intermittent FMLA, Lasher suggests that denying the request might very well be FMLA interference. The employee in this case erred by not giving notice of her intent to take FMLA intermittent leave in advance of her nap. So, while you might think that you can fire an employee for sleeping on the job, the FMLA can complicate the issue.

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Can an Employer Prohibit an Employee from Job Hunting During FMLA Leave?

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

What an interesting question. I am not aware of any provision in the FMLA that specifically addresses this issue. As Suzanne correctly points out in her post, 

FMLA leave itself doesn’t prohibit someone from job hunting. It does prohibit people from doing things that they shouldn’t be able to do, due to the terms of their leave … .  [I]nterviewing for a job doesn’t aggravate your shoulder, so it’s not a violation of your leave.

What about the “no job hunting” policy itself? Can an employer prohibit an employee from job hunting while on FMLA? 
 
To me, the legal answer to this question depends on whether this policy applies to any employee who is on a leave of absence, or only employees on FMLA leave. If it’s the latter, then the policy targets singles out employees taking FMLA, and probably interferes with their FMLA rights. If it’s the former, then it’s probably not illegal under the FMLA, it’s just a bad policy.
 
The practical question, however, is, assuming this policy is legal, who in their right mind would want to work for a company that prohibits current employees from looking for a new job. We no longer have indentured servants, and for good reason. Employees are at-will, meaning they can leave at any time, for any reason. Why would an employee work for a company that would prohibit him or her from leaving for another job. 
 
Consider me puzzled by this policy, and a huge anti-fan of a no-job-hunting policy. Readers, have you ever encountered a policy like this?
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Legal Briefing: Locking Down Best Practices on Prison Breaks

A collective bargaining agreement between Butler County, Pennsylvania, and correctional officers for the Butler County Prison provides that the employees receive a one-hour lunch break, of which 45 minutes are paid and 15 minutes are not. A collective action of correctional officers sued Butler County alleging that, under the Fair Labor Standards Act, they should be compensated for that 15 minutes because, during that time, they cannot leave the prison and must remain in uniform. After the U.S. District Court for the Western District of Pennsylvania dismissed the case, the 3rd Circuit Court of Appeals adopted the “predominant benefit test,” which has also been adopted by the 2nd, 4th, 5th, 6th, 7th, 8th, 10th and 11th circuits, and which weighs the benefits each side gets from the break to determine if the employee should be compensated. In upholding the decision, the court held that “although plaintiffs face a number of restrictions during their meal period … on balance, these restrictions did not predominantly benefit the employer.” Babcock v. Butler County, No. 14-1467 3rd Cir. (Nov. 24, 2015).

Impact: In determining whether employees should be compensated during restricted meal breaks, employers should carefully weigh whether the employee is primarily engaged in work-related activities during the break.     

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email editors@workforce.com.

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Appellate Court Reinstates Sex-Discrimination Claim of Transgendered Worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

Relying on a mixed-motive analysis, the court, in Chavez v. Credit Nation Auto Sales [pdf], concluded that Chavez had presented enough evidence that her gender was a “motivating factor” in the termination decision such that a jury should decide her claim.

What was the evidence on which the court relied?

  • That the company’s president subjected her performance to more scrutiny and criticism after she announced her gender transition.
  • Statements by the company’s president that he was “very nervous” about Chavez’s transition, and that he believed it would “negatively impact his business.”
  • The company’s president telling Chavez “not to wear a dress back and forth to work” because it would be “disruptive”.
  • Other company officers expressing concern over Chavez’s use of a unisex bathroom.
While this case may look like a run of the mill sex-discrimination case, it is emblematic of a deeper trend. In the coming years, more transgender employees will enter your workplace. You need to be vigilant in not making comments about their appearance, and otherwise not allowing conscious or unconscious biases to pervade your decisions about these employees.
Because more and more courts are accepting transgender-discrimination claims under Title VII’s sex-discrimination prohibitions, and because Title VII permits mixed-motive discrimination claim, these comments or (un)conscious biases could undermine an otherwise legitimate termination, as was the case in Chavez.
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Don’t Ignore Reasonable Accommodations in the Application Process

Eliminating barriers in recruitment and hiring is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan. Large national employers provide the EEOC with a soapbox to broadcast this agenda. Thus, a lawsuit filed by the agency against McDonald’s Corp. for its alleged refusal to interview a deaf job applicant is a perfect ADA-storm.

According to the complaint, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant. He indicated on his application that he attended a school for the deaf. When the restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, continuing to interview and hire new workers.

Employers cannot forget or ignore that their obligations under the ADA to provide reasonable accommodations does not just cover employees, but also extends to job applicants. From the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA:

An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.

Per EEOC St. Louis District Director James R. Neely, Jr., “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.” Adds EEOC Regional Attorney Andrea G. Baran, “Providing equal employment opportunities to all job applicants—including those with disabilities—is not just the law, it is good for our economy and our workplaces.” Solid words for employers of all sizes to heed.