March 2017

The Top Ten Reasons Employees Hire Plaintiff's Counsel

While this is likely the subject of an entire seminar (and there are way more than 10 reasons!), it is worth reducing the “reasons” to a working list for all of us as we not-so-quietly glide into 2017.

1. Applicant believes he/she should have been hired. Employers can avoid this by establishing objective qualifications for available positions and having job descriptions with appropriate disclaimers. Also, ensure that the interviewer has a consistent interview process, which is supported by HR. Remove ads once the position has been filled and have “expiration dates” for applications/resumes.

2. Employee feels unfairly disciplined. Employers who do not communicate conduct and performance issues will run up against this issue. It’s important to have a clear code of conduct and a process for discipline. Additionally, supervisors should be trained on documentation and performance management.

3. Employee believes he/she was harassed. Generally, employees who feel harassed don’t complain immediately or they complain and nothing happens. Supervisors should be trained to act promptly and respond to complaints.

4. Employee believes he/she was subjected to discrimination. Supervisors need to be trained on what protected classes are and to understand what “retaliation” looks like. Supervisors will be the first line of defense. Also, consistently enforce policies and procedures – while also evaluating situations on a case-by-case basis.

5. Employee asks for an accommodation (or thinks they have) and (believes) nothing is done. Employers need to understand what a “disability” and an “accommodation” is. They also need to understand what their response should be when such a request is made (and to understand what is considered a “request”). Remind supervisors that any such request is a reason to call HR.

6. Employee doesn’t receive or understand the company policies and procedures. Not only should employers have an updated employment handbook that incorporates all of the company’s policies and procedures, but supervisors must understand how implementation of the policies work and actually implement the policies! And one more thing – employees must receive and sign off on the handbook.

7. Terminating or disciplining an employee when they have an injury or are on leave. While you can do so by following well-settled company policies (and speaking with legal counsel), an employee who is not “educated” on his/her rights and responsibilities when on a leave of absence or is treated differentially will find a plaintiff’s attorney pretty quickly. Training managers on this topic is critical.

8. Supervisors have different processes for documenting performance issues. There must be some consistency here – and that standard should come from HR. Plus, when managers don’t follow the rules, employees don’t feel they need to either.

9. Records are incomplete – and employees know it. Maintain good and complete records that document everything relevant in the workplace, such as employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support and justify disciplinary measures, termination or reductions in force. When employees ask for their personnel file, ensure it is complete.

10. There’s no “open door”. Have an open-door policy (and mean it). In my experience, employees who don’t feel listened to are often the ones who will leave disgruntled … and come up with a reason to sue.

RLG Takeaway
A diverse and engaged workplace is generally a more satisfied workplace. Employees are more productive and will likely have fewer grievances. And if they do have grievances, they will be less likely to transform those grievances into lawsuits. Oh, and as you might have noticed, there’s nothing more important to avoiding lawsuits than training your supervisors and managers!

The Proof is in the Policies

FMLA Scenario #1
Imagine this: You have a policy on attendance and the use of intermittent FMLA. The policy provides that an employee must call into the company’s attendance line at least 30 minutes prior to missing work each day. Let’s also imagine that you inform all employees (often multiple times) about the use of this policy. However, you have an employee who is on intermittent leave and she misses several consecutive days and never follows the attendance policy regarding her absences. When the employee returns to work, she has no “explanation” for failing to call in other than she “became overwhelmed” – hence, her not calling in.

How do you respond: Do nothing, discipline, terminate?

The FMLA regulations, and court opinions, state that an employee must “comply with an employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. 302(d). If the employee does not follow the company’s “usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.” Id.

The scenario described above mirrors what occurred in Ritenour v. Tennessee Dep’t of Human Servs, in the 6th Circuit. In Ritenour, the court found that the plaintiff was obligated to follow her employer’s call-in policy when missing work unless she could demonstrate that an “unusual circumstance” prohibited her from calling in her absence. The court determined that the plaintiff was well aware of her obligation to follow the call-in policy and she could not state an unusual circumstance as to why she failed to follow the policy. As a result, the Ritenour court found that the employer was justified in disciplining the plaintiff for violating the call-in policy and in doing so did not violate the FMLA.

FMLA Scenario #2
It seems like common sense that when an employee lies, he/she can be terminated. However, what if the employer mistakenly believes the reason for the absence is a lie, when in fact the reason for the absence is FMLA protected?

According to a January 30, 2017 ruling by the U.S. Court of Appeals for the Third Circuit, that is okay too, so long as there really is an honest belief that the reason for taking the leave was false. Capps v. Mondelez Glob., LLC, 847 F.3d 144 (3d Cir. 2017).

Capps has some key points:

Here, there was a company policy that prohibited dishonest acts – a prohibition that was repeated in the company’s FMLA policy – which specifically stated that submission of false information or the fraudulent use of FMLA could result in discipline up to and including discharge.

The company investigated whether the employee had submitted false documentation in support of his request for intermittent FMLA and whether he had used FMLA leave for an impermissible purpose.
The company had an honest belief – based on its investigation – that the documentation the employee submitted, which the company found suspicious, did not support his claim for intermittent FMLA leave.
The company had a record of approving FMLA leave for the same employee in the past.

RLG Takeaway
The first scenario serves as a good reminder that it is acceptable and legal to apply your usual and customary call-in policies to all employees, including those on intermittent FMLA leave (absent unusual circumstances), so long as the policies are applied consistently for all absences. Review your call-in/attendance procedures to ensure they are clearly explained. New employees should sign off on these policies as well.

In the second scenario, if your FMLA policy does not specify that discipline may result from submitting false documentation or from fraudulently using FMLA, you should consider updating your policy. Don’t be afraid to hold an employee accountable for policy violations – even if the employee has engaged in protected activity – so long as you honestly (and reasonably) believe that the employee violated the policy. And, finally, seek some legal advice when making a decision to discipline or discharge an employee on any type of leave.

*Given this recent ruling, if you’ve had your handbook reviewed by us in the last six months, please contact us and we will update your FMLA policy free of charge.

OSHA: A Win (finally) for Employers

A March 1, 2017 vote in the House of Representatives could mean that Congress will soon revoke a recent OSHA regulation that extended the window for the agency to issue citations for recordkeeping violations. If enacted, the action by Congress will effectively limit the agency’s ability to issue a recordkeeping citation more than six months after the violation occurred.

Under current OSHA regulations, employers must prepare an incident report and a separate injury log within seven calendar days of receiving information that a recordable injury or illness has occurred. At the end of each calendar year employers must review their OSHA Form 300 Log of Injuries and Illnesses to ensure that they are complete and accurate. By February 1 of each year, employers must certify their Form 300 Log and post their OSHA Form 300A, which lists the total number of job-related injuries and illnesses that occurred in the previous year. Employers are required to save the OSHA 300 Log, the privacy case list (if one exists), the OSHA 300A annual summary, and the OSHA 301 Incident Report forms for five years following the end of the calendar year that these records cover.

In the past, we watched OSHA cite employers for failure to accurately record an injury as a continuing violation during the entire five-year retention period. Plus, with OSHA’s six-month statute of limitations, OSHA could issue citations for recordkeeping for five years and six months after the violation occurred. However, in the Volks II case (2012), the Circuit Court for the District of Columbia ruled that OSHA could only cite an employer for a record keeping violation within the six-month period after the recording incident.

In late December 2016, OSHA issued a rule aimed at undoing Volks II by imposing a continuing recordkeeping requirement. Thus, on March 1, 2017, Congress issued a joint memorandum to undue the rule because of the timing of the rule and rulemaking requirements. If passed by the Senate and signed by the President, the statute of limitations for recordkeeping violations will return to six months from the occurrence of the violation.

RLG Takeaway
This is great news for employers as it limits exposure to possible citations by OSHA for recordkeeping violations. Please note: this action by Congress is limited only to the enforcement window for recordkeeping and will not undo other controversial recent rules such as the Reporting Rule (which mandates electronic filing of 300 logs and limits drug testing and safety incentive programs). As we discussed at our last seminar, there are a number of industry groups that are pursuing lawsuits seeking to vacate the Reporting Rule. As of yet, there have been no stays or limitations on that Rule. We’ll keep you posted.

When Walking and Bending Can Cause a Direct Threat

On February 1, 2017, a federal court judge dismissed a groundskeeper’s ADA claim finding that it was reasonable for a school to believe that he posed a “direct threat” of substantial harm to himself given his inability to perform the essential functions of the job. Importantly, this employee had not been injured and had not reported that he had a disabling medical condition.

In McLane v. School City of Mishawaka (N.D. Indiana 2/1/17), the employee claimed he posed no risk of danger because he had performed the job for years without injury. The court disagreed stating that just the lack of an injury did not mean that there was no risk of future injury.

Here, the school had a policy stating that it could require an employee to undergo a fitness for duty exam when a concern was raised regarding an employee’s ability to perform his or her job duties in a safe manner. McLane’s supervisor had observed him (1) having difficulty bending over and picking items up, (2) not being able to walk more than ten or fifteen feet, and (3) he “looked like he was in pain when trying to go about normal activity.” As a result, the school required him to undergo a fitness for duty exam.

A physician (not affiliated with the school) performed the exam and found that the employee was fit for duty but requested that a job site functional capacity evaluation be performed to observe the employee and determine whether he could perform the essential functions of his job. A physical therapist (again not affiliated with the school) who performed the job site analysis concluded that the employee was unsteady, had difficulty walking, was unable to bend properly, and could not crawl because his knees had limited function.

The employee “admitted that he could not keep his legs straight while lifting, which caused [the employee] to use unsafe body mechanics while lifting,” and could not stoop, bend his knees or get down in a crouch. Thus, the physical therapist concluded that the employee would be at risk for injury if he continued performing his essential job functions, even with the use of assistive equipment such as a cart or tractor.

Based upon the findings of the job site analysis, the school transferred the employee to a hall monitor position. The employee failed to report for this new position and the school ended his employment.

The court noted that employers are entitled to “substantial deference” in the determination of essential job functions and that it should not interfere with the employer’s determination of essential job functions unless there is evidence of pretext. Here, the court rejected the employee’s argument of pretext noting that an independent physical therapist had concluded that the essential functions of the job could not be performed safely.

RLG Takeaway
Employers would be well-advised to have a written fitness for duty policy (as this employer did) and to hire independent physicians and vocational resources to perform the fitness for duty exam (again, as this employer did). It also helped that this employer had a written job description that referred to the essential functions in question. And that the employee was not fired but transferred to a job that did not pose a risk of danger.

EEOC Continuity ... For Now

Acting chair of the EEOC Victoria Lipnic recently provided a glimpse into the commission’s future. Her message: Do not expect to see any major changes in the near future. Acting Chair Lipnic occupies only one of a total of five commission seats at the EEOC. Any major policy shifts will not occur until Trump appointees join the Commission.

Lipnic did indicate that the Trump administration intends to focus on job growth – which matches the EEOC’s core mission of enforcing workplace discrimination laws.

As for the regulations surrounding the annual EEO-1 reports, requiring large employers to provide much more detailed information, Lipnic said that President Trump has issued a directive to all agencies to rethink the reasonableness of current regulations.

RLG Takeaway
It appears that we’ll be staying in this pro-employee business stance for now. We do anticipate some changes this year. Stay tuned!

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.