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  • HR Resource

So, What Exactly Is FMLA Interference? An Important Refresher

Most employers today know what the Family and Medical Leave Act (“FMLA”) requires, i.e., job-protected leave for employees working for employers with 50 or more employees. But most employers know very little about what the law prohibits, namely both interference with and protection against retaliation when an employee exercises FMLA rights. As part of my practice, I have had several clients recently pose a very interesting question about possible FMLA interference. This question is: when an employee is out on FMLA leave, can the employer require an employee to periodically check in to update the employer on their medical status, or does having that sort of interaction with the employee constitute wrongful FMLA interference? The answer to this question, like many in this area of the law, requires an employer to proceed with some caution, and it seems like a good time for a refresher on what is, and is not, permitted.

Legally, an employee on FMLA leave is neither entitled to be “left alone,” nor is completely relieved from responding to an employer’s discrete inquiries. Fielding occasional calls about one’s job while on leave is deemed a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, or even giving a quick update on the employee’s on-going medical status, employers do not violate the FMLA by making such calls or expecting employees to keep them updated on such topics. Moreover, if the employer has designated call in procedures or policies that an employee must follow while on FMLA, the employee is expected to follow them if they do not conflict with the leave rights granted under the FMLA. A big legal prohibition however is assigning any work to or expecting that the employee will perform any job services while on leave. That is a sure invitation for an interference claim.

While contacts with an employee are allowed while on FMLA, the real legal difficulty is that there is no legal standard or consensus on the amount of potential contacts an employer can have with an employee while out on FMLA leave. The cases talk about “de minimus” contacts not interfering with FMLA use without stating how many of those kinds of contacts can happen. So, what exactly is a sufficiently small enough number to not get the employer into trouble? Over 12 weeks of leave, once a month would seem fine, especially if the employer has a valid reason for the contact, such as a quick question about a work file or confirming an expected return to work date. More than that would likely depend on the presenting circumstances for the required contact. In this area, when all is said and done, seemingly less is better—the fewer times you need to speak to your employee, the better.

Therefore, based upon the foregoing, employers who need to reach out to an employee on FMLA leave are best served by doing so only sparingly and only when the contact is supported by a legitimate business reason. And, most importantly, do not demand that an employee perform any sort of work during their FMLA time. Even when the employee volunteers to do so, it is best for the employer to say no to ensure that there is no chance of any misunderstanding by the employee that working on FMLA leave is an expectation of the employer. So now you know what FMLA interference is and how to best avoid it.

  • HR Resource

BEWARE OF RETALIATION

I have written about this topic before but thought it is worthwhile to address the issue again because I am seeing a disturbing uptick in these types of claims: Retaliation.

Too often, when a claim is filed by an employee, an employer becomes angry and wants to fight back and get revenge against the employee for asserting the legal claim. The temptation is real for many employers. They feel betrayed that an employee would accuse them of violating the law. It can get especially personal when an employee accuses an employer of engaging in wrongful discrimination. No one wants to be called a bigot or find themselves on the wrong end of any legal case. But an employer must fight the urge to engage in retaliatory action against an employee for exercising protected legal rights. Mounting a strong legal defense to a filed claim should always be the goal when faced with a legal claim. Retaliation of any kind should not be part of that strategy!

Just about all of the major federal and state anti-discrimination laws protect employees against retaliation in exercising rights vested under these laws. Whistleblower laws likewise provide protection against retaliation. So ironically do many employer policies themselves. Yet, employer retaliation happens. And when it does, it will often provide an employee with an even stronger legal claim than the one that was originally being pursued, which only makes it harder to mount a successful legal defense. 

When I think of retaliation claims, I am reminded of what William Shakespeare once wrote in his play “Othello” about jealousy being “a green-eyed monster.” In the realm of labor and employment law, one can fittingly say the same thing about retaliation and its own resemblance to that same famous literary creature. Employers must fight the urge to succumb to the “green-eyed monster” of retaliation. Just as jealousy wreaks havoc in Othello’s life in the famous Shakespeare play, so can retaliation for an employer in its efforts to remain compliant with labor and employment laws.

Along with fighting that retaliation urge, employers should always ground their workplace decisions in legitimate (and well-documented) non-retaliatory reasons for any actions that you take against an employee. That way, you will always give yourself a strong viable defense to such allegations. Increasingly, I am seeing sophisticated employees when they know their employment time is short go on the aggressive and claim that the employer is doing something illegal in the hope that it will cause the employer to delay any adverse employment action against the employee. In those situations, it is more critical than ever that employers have a well-documented history of the employee’s performance problems to counter any contention that the action is occurring for a retaliatory reason.  

The temporary taste of vengeance is fleeting, just ask Othello. Fight that temptation at all costs so you too do not become just another tragic figure like Othello! In the end, retaliation claims can ultimately cost your company a lot of money, so always make good employment decisions rooted in legitimate business reasons.              

Beware of Retaliation: The “Illegal Green-Eyed Monster”

I was recently reading a newspaper (yes, some people still do that!) and came across an article about an all-too-familiar situation for some employers. The article reported a case involving a former employee of an employer who was fired after he intervened as a witness on behalf of a co-worker who alleged that she was sexually harassed. The employee sued the employer claiming a retaliatory firing because of his involvement as an unfavorable witness to the company on the co-worker’s sexual harassment claim. The employer argued that the employee was fired for performance issues, but the jury did not buy the argument. The fired employee was ultimately awarded $3 million dollars in damages. 

As I was reading the article, it reminded me of what William Shakespeare once wrote in his play “Othello” about jealousy being “a green-eyed monster.”  In the realm of labor and employment law, one can say the same thing equally about retaliation and its own resemblance to that same famous literary creature.

Too often, when a claim is filed by an employee, an employer becomes angry and wants to fight back and get revenge against the employee for asserting the legal claim.  The temptation is real for many employers. They feel betrayed that an employee would accuse them of violating the law. It can get especially personal when an employee accuses an employer of engaging in wrongful discrimination. No one wants to be called a bigot or find themselves on the wrong end of any legal case. But an employer must fight the urge to engage in retaliatory action against an employee for exercising protected legal rights. Mounting a strong legal defense to a filed claim should always be the goal when faced with a legal claim. Retaliation of any kind should not be part of that strategy!

Just about all of the major federal and state anti-discrimination laws protect employees against retaliation in exercising rights vested under these laws. Whistleblower laws likewise provide protection against retaliation. So do ironically many employer policies themselves. No doubt, most employers like the one here likely had its own anti-harassment policy that urged employees to invoke its procedures without fear of any workplace reprisals. Yet, employer retaliation happens. And when it does, it will often provide an employee with an even stronger legal claim than the one that was originally being pursued, which only makes it harder to mount a successful legal defense.  

Thus, employers must fight the urge to succumb to the “green-eyed monster” of retaliation. Just as jealousy wreaks havoc in Othello’s life in the famous Shakespeare play, so can retaliation for an employer in its efforts to remain compliant with labor and employment laws.

The temporary taste of vengeance is fleeting, just ask Othello, or this employer as it is writing out that $3 million check. Fight that temptation at all costs so you too do not become just another tragic figure like Othello!             

BEWARE OF RETALIATION: THE GREEN-EYED MONSTER

I was recently reading USA Today and came across an article about an all-too-familiar situation for some employers. The article reported a case involving a former employee of O’Reilly Auto Parts who was fired after he intervened as a witness on behalf of a co-worker who alleged that she was sexually harassed. The employee brought suit against O’Reilly Auto Parts claiming a retaliatory firing because of his involvement as an unfavorable witness to the company on the co-worker’s sexual harassment claim. The employer argued that the employee was fired for performance issues, but the jury did not buy the argument. The fired employee was ultimately awarded $3 million dollars in damages.  

As I was reading the article, it reminded me of what William Shakespeare once wrote in his play “Othello” about jealousy being “a green-eyed monster.”  In the realm of labor and employment law, one can say the same thing equally about retaliation and its own resemblance to that same famous literary creature.

Too often, when a claim is filed by an employee, an employer becomes angry and wants to fight back and get revenge against the employee for asserting the legal claim.  The temptation is real for many employers. They feel betrayed that an employee would accuse them of violating the law. It can get especially personal when an employee accuses an employer of engaging in wrongful discrimination. No one wants to be called a bigot or find themselves on the wrong end of any legal case. But an employer must fight the urge to engage in retaliatory action against an employee for exercising protected legal rights. Mounting a strong legal defense to a filed claim should always be the goal when faced with a legal claim. Retaliation of any kind should not be part of that strategy!

Just about all of the major federal and state anti-discrimination laws protect employees against retaliation in exercising rights vested under these laws. Whistleblower laws likewise provide protection against retaliation. So do ironically many employer policies themselves. No doubt, O’Reilly Auto Parts likely had its own anti-harassment policy that urged employees to invoke its procedures without fear of any workplace reprisals. Yet, employer retaliation happens. And when it does, it will often provide an employee with an even stronger legal claim than the one that was originally being pursued, which only makes it harder to mount a successful legal defense.  

Thus, employers must fight the urge to succumb to the “green-eyed monster” of retaliation. Just as jealousy wreaks havoc in Othello’s life in the famous Shakespeare play, so can retaliation for an employer in its efforts to remain compliant with labor and employment laws.

The temporary taste of vengeance is fleeting, just ask Othello, or O’Reilly Auto Parts as it is writing out that $3 million check. Fight that temptation at all costs so you too do not become just another tragic figure like Othello!             

  • Articles

One Strike and You’re Out-Single Racial Slur Can Create Hostile Work Environment

Everyone knows, or hopefully should know, that Title VII of the Civil Rights Act of 1964 protects employees from encountering a hostile work environment due to their race. What many may not know is that there is another federal law that also prohibits racial discrimination in the form of hostile work environment. That statute, §1981 of the Civil Rights Act of 1866, was the subject of a significant recent decision from the Third Circuit Court of Appeals that addressed what legal elements must be established in order to prove a hostile work environment claim under § 1981. Employers are wise to heed the edicts of this decision because it has expanded the potential situations where a racially hostile work environment can be established under this law.

In Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017), two African-American male employees worked as general laborers for the defendant company. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n….r-rigged” the fence. This incident was confirmed by other coworkers and reported thereafter by the employees to a superior. Two weeks later, the two African-American employees were fired without explanation, but were subsequently rehired, only to be fired again, this time because of a “lack of work.”

The African-American employees subsequently filed suit alleging harassment, discrimination, and retaliation in violation of § 1981. The trial court dismissed the employees’ harassment claim because it determined that the facts as pled in the plaintiffs’ complaint did not support a finding that the harassment was “pervasive and regular.” This ruling was not at all surprising because ordinarily in order to prove a hostile work environment under current law, more than a single incident is required to give rise to a potential legal claim. That is how most courts, including in this judicial circuit, have read the requirement of “severe and pervasive.”

An appeal was subsequently taken to the Third Circuit Court of Appeals. The Court determined that it was error for the complaint to have been dismissed. Clarifying its past decisions in this area, the Court held that, in some circumstances, a single incident can be severe enough to contaminate a workplace environment in violation of the requirements of § 1981. In order for a single incident to serve as grounds for a claim of hostile work environment under this law, the Third Circuit explained that the incident must be so “extreme to amount to a change in the terms and conditions of employment.” Thus, not every incident will be enough to meet this new standard, though the decision unfortunately does not provide much clarity at all as to what such circumstances must be to ultimately meet this standard.

The instant decision certainly creates a precarious situation for employers. While ultimate success in each case of this kind will often depend heavily upon the facts giving rise to the case, this decision certainly provides a strong incentive for employers to continue to implement strong anti-harassment policies and training so that everyone understands that zero tolerance of any racially intolerant or similar inappropriate comments is the rule in your workplace.  Otherwise, you could learn the hard way as the employer in this case did that there are certain pernicious comments that should never be uttered in any workplace.0

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