Nobody Likes a Liar

By Kathleen J. Jennings (kjj@wimlaw.com)

The FMLA is one of those employment statutes that can give companies all sorts of headaches, and one of the biggest headaches can come from managing intermittent FMLA leave. So the termination of an employee in Alabama who got caught abusing intermittent FMLA (for migraine headaches) was probably satisfying on some level to his former employer. (Prichard v. Hyundai Motor Mfg. of Ala., LLC , M.D. Ala., No. 2:18-cv-00556, 10/7/19).

Tommy Prichard worked for Hyundai Motors in Montgomery, Alabama. Prichard was diagnosed with migraine headaches, and by 2013, he was being treated by a physician for his migraines. When Prichard had a migraine, he was unable to work and became bedbound. As a result, Prichard sought intermittent FMLA leave in 2013. Prichard was approved for intermittent FMLA leave and was entitled to take such leave as long as he did it honestly and with integrity and gave proper notification of his leave in accordance with Hyundai’s policies. Prichard renewed his FMLA certification every six months as required, and though the exact wording in the certifications varied slightly, Prichard’s physician generally certified that “[o]n the days [Prichard’s] Migraine HA’s flare [sic] he will be unable to work. He is bed bound unable to function.”

Then Hyundai noticed a pattern in which Prichard often took FMLA leave on Fridays before non-production days. So Hyundai decided to hire a private investigator to investigate and surveil Prichard’s use of FMLA leave. The private investigator observed that Pritchard left his home and stayed out most of the day on a day that he had called out because he had a migraine. (Remember—the migraines made him bed bound and unable to function). When confronted with the evidence, Pritchard became defensive and basically told his employer that it was none of their business what he was doing that day. Not surprisingly, Pritchard was terminated.

Pritchard sued his employer and alleged that he has been terminated in retaliation for using FMLA leave. The U.S. District Court for the Middle District of Alabama granted summary judgment to the employer. Why? Because the employer articulated a legitimate, non-retaliatory reason for Pritchard’s termination: Prichard was terminated because Hyundai had a good faith belief that Prichard misused FMLA leave (based on the pattern of missed Fridays and the private investigator’s report), and Pritchard was unable to show that this reason was a pretext for discrimination.

The lesson for employers is this: if you have a good faith belief that an employee is abusing intermittent FMLA (or any other policy or benefit), you can conduct a necessary investigation to determine whether there is, in fact, abuse. Indeed, the Pritchard decision, the Court noted that “Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.” However, employers need to be consistent in how and why they conduct such investigations. Furthermore, the use of a qualified and competent third party to conduct the investigation can provide compelling evidence of the misconduct, if discovered.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 


 

The Supremes Are Back!

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s the first Monday in October, and that means that the U.S. Supreme Court starts a new term. One of the major issues before the court involves the question of whether gay and transgender employees are protected from workplace discrimination by Title VII of the Civil Rights Act of 1964, as amended. In fact, three cases (two of them out of Georgia) will be argued before the Court on Tuesday of this week. Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, deal with the issue of whether sexual orientation is protected by Title VII, and the third case, R.G. & G.R. Harris Funeral Home v. EEOC, deals with the issue of whether gender identity is protected by Title VII.

Most observers predict that a majority of the current conservative majority Supreme Court will rule that sexual orientation and gender identity are not protected by Title VII. However, keep in mind that even if such discrimination is not prohibited by federal law, it may be prohibited by state law; 20 states and Washington, D.C. currently have laws in effect that ban employment discrimination based on sexual orientation and gender identity. Additionally, federal executive orders also ban federal agencies and contractors from discriminating against LGBT workers.

We’ll provide an update when the Supreme Court issues its decisions.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

The New Overtime Rule is Here!

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the U.S. Department of Labor announced the new Final Overtime Rule that raises the salaried exemption threshold. As you may recall, the Obama administration tried to raise the salary threshold for the overtime exemption for executive, administrative, and professional employees from $23,660/year ($455/week) to $47,892/year ($921/week). Employers were not pleased with an increase that large, and they fought it in the courts. The Obama overtime rule was eventually enjoined, then invalidated, and now the new administration has made the decision to increase the salary threshold, albeit by a smaller amount. Specifically, in the final rule announced today, the DOL is:

•    raising the “standard salary level” from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);

•    raising the total annual compensation level for “highly compensated employees (HCE)” from the currently-enforced level of $100,000 to $107,432 per year;

•    allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level, in recognition of evolving pay practices; and

•    revising the special salary levels for workers in U.S. territories and in the motion picture industry.

The DOL projects that this new rule will make 1.3 million more American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA).

The final rule will be effective on January 1, 2020. Between now and then, employers need to review their workforce and determine if any employees will no longer meet the salaried exemption and thus, will be entitled to earn overtime. In fact, now is a good time for employers to review all exempt employees to ensure that they are being treated appropriately under the FLSA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Misclassification of Employees As Independent Contractors Does Not Violate NLRA, Says NLRB

By Kathleen J. Jennings (kjj@wimlaw.com)

The current National Labor Relations Board (NLRB) is the gift that keeps on giving to employers. Today, the NLRB issued a decision in which it held that an employer’s misclassification of its employees as independent contractors does not violate the National Labor Relations Act (NLRA). Velox Express, Inc., 368 NLRB No. 61 (8/29/19). This case drew the attention of numerous unions and employer associations, many of which submitted amicus briefs.

How is misclassification of employees an issue in labor law? The classification of employees as “independent contractors” effectively removes them from the jurisdiction of the NLRA and therefore, takes away their rights under Section 7. In the event of a union organizing campaign and election, the “independent contractors” would not be part of any proposed bargaining unit nor could they vote in the election. Employers are free to discipline or dismiss independent contractors for engaging in concerted activity for mutual aid or protection (such things as bringing group complaints about employee treatment to the attention of management or talking to other employees about bringing in a union). The Obama NLRB took the position that such misclassification did violate the NLRA, but the Republican majority of the current NLRB soundly rejected that interpretation.

Keep in mind that improper classification of employees as independent contractors can still have consequences—most notably with the federal Department of Labor.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Get Off My Lawn: The NLRB Sets New Standard for Access to Employer Property By Off-duty Employees of Contractors

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, the National Labor Relations Board handed employers a victory in a case involving access to property. Bexar County Performing Arts Foundation, N.L.R.B., 16-CA-193636 (8/23/19). Specifically, the Board addressed whether and when a property owner must grant access to the off-duty employees of an onsite contractor to engage in Section 7 activity. Overruling precedent set during the Obama era, the Board held that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. Therefore, a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, the Board stated that it considers contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, the Board will consider contractor employees to work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.

This case involved the Tobin Center, a performing arts center, which houses three principal resident companies: the Symphony, Ballet San Antonio, and Opera San Antonio. When the Ballet San Antonio chose to use recorded music for its performances of Sleeping Beauty, the Symphony employees were not pleased because that meant lost work for them. The Union representing the Symphony employees decided to hand out leaflets on Tobin Center property before the four weekend performances of Sleeping Beauty. In response, the Tobin Center barred the Symphony employees and their sympathizers from leafletting on its property, and the Union filed a charge with the NLRB.

In its decision, the Board noted that the Symphony employees did not work on the Tobin Center’s property exclusively; they performed at other venues as well. Furthermore, the Symphony employees did not “regularly” work on the Tobin Center’s property because the Symphony itself did not regularly conduct business or perform services there. Finally, they had other alternative nontrespassory channels of communication to reach the general public: a public sidewalk across the street from the Tobin Center’s property. Accordingly, the Tobin Center lawfully denied the Symphony employees access to its property for their leafletting activities.

The current Republican majority Board has shown that it is willing to give employers greater control over their property in the face of union activity. This ruling follows the Board’s decision in June in which it overruled 38 year-old precedent and held that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. UPMC, N.L.R.B., 368 N.L.R.B. No. 2 (6/14/19). The Board has also announced that it will use its rulemaking power to clarify standards for union activity on employer property.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

National Labor Relations Board Approves the Use of Mandatory Arbitration Agreements as Tool For Employers to Fight Collective Actions

By Kathleen Jennings (kjj@wimlaw.com)

A decision issued this week by the National Labor Relations Board gives employers greater clarity on the issue of mandatory arbitration agreements. (Cordua Restaurants, N.L.R.B., 16-CA-160901, August 14, 2019). This decision is an important follow up to the U.S. Supreme Court’s landmark decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018). In Epic Systems, the Supreme Court held that agreements containing class-and collective-action waivers and stipulating that employment disputes are to be resolved by individualized arbitration do not violate the National Labor Relations Act and must be enforced as written pursuant to the Federal Arbitration Act.

Specifically, the Cordua Restaurants decision answered two questions left open in Epic Systems: (1) whether the National Labor Relations Act (NLRA) prohibits employers from promulgating mandatory arbitration agreements in response to employees opting in to a collective action; and (2) whether the NLRA prohibits employers from threatening to discharge an employee who refuses to sign a mandatory arbitration agreement. The Board’s answer to both questions was NO. This is a victory for employers who desire to use mandatory arbitration agreements.

In a small victory for employees, however, the Board reaffirmed longstanding precedent establishing that Section 8(a)(1) of the NLRA prohibits employers from disciplining or discharging employees for engaging in concerted legal activity, which includes filing a class or collective action with fellow employees over wages, hours, or other terms and conditions of employment.

What this means for employers:

  • Employers are allowed to condition employment on signing mandatory arbitration contracts.
  • Employers can warn workers that they will be fired if they fail or refuse to sign mandatory arbitration agreements.
  • Employers can require employees to sign mandatory arbitration pacts in response to workers opting into FLSA collective actions or class actions brought under state wage-and-hour laws. In those agreements, employees must agree that they will not opt into an existing collective action. This is a powerful weapon for an employer to wield in response to the filing of a collective action.

According to a 2018 study by the Economic Policy Institute, more than half of nonunion, private sector employers have mandatory arbitration procedures. However, these agreements are not “one size fits all.” It is advisable to contact qualified counsel to craft an agreement that meets the needs of your particular business and workforce.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

NEW HORIZONS IN FMLA LEAVE: PARENT-TEACHER CONFERENCES?

By Elizabeth K. Dorminey (ekd@wimlaw.com)

Is a parent entitled to use FMLA leave to attend a special education parent-teacher conference? A recent Opinion Letter from the U.S. Department of Labor says “yes.”

In a letter published August 8, 2019 (FMLA2019-2-A), Wage and Hour Division Administrator Cheryl M. Stanton responded to a formal request for an opinion on this question. The writer explained that he was the father of two children with FMLA-qualifying serious health conditions. His wife’s employer had approved her taking FMLA leave intermittently to take the children to medical appointments but declined her request to take intermittent FMLA leave to attend Committee on Special Education (CSE) meetings to discuss the children’s Individualized Education Programs (IEP) at their school. The children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and meetings are held four times a year to review their educational and medical needs, well-being, and progress. The writer wanted to know if his wife may insist on intermittent FMLA leave to attend these meetings.

Based on the facts provided in the letter, the Administrator concluded that the wife’s need to attend CSE/IEP meetings was a qualifying reason for taking intermittent FMLA leave. The Administrator found that the meetings were necessary to “care for a family member … with a serious health condition,” as defined in 29 C.F.R. § 825.100(a); and that “to care for” includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). That language usually is applied to making medical decisions on behalf of a hospitalized family member or arrangements to find suitable childcare for a child with a disability, even if the decisions do not involve a facility that provides medical treatment. In a previous opinion letter, WHD had found that an employee was entitled to take FMLA leave to attend meetings related to a parent’s health condition. WHD Opinion Letter FMLA-94, 1998 WL 1147751, at *1 (Feb. 27, 1998).

Even though the CSE/IEP meetings are focused on education, not health care, the Administrator found that attending the meetings was essential to the wife’s ability to provide appropriate physical or psychological care to the children and that her participation would help her make medical decisions concerning the children’s care. Bottom line: the wife is entitled to claim intermittent FMLA leave to attend the meetings.

Point/Counterpoint

    This is an interesting and controversial letter and provoked considerable debate among the firm’s attorneys. Intermittent leave, often taken in small increments, can be an administrative challenge for employers who must track leave use and may need to reschedule other workers to cover for an absent employee. The FMLA’s focus has been on dealing with illness and disability, the exception being maternity leave or leave for adoption or foster placement, but this letter suggests that the “medical” aspect needs only to be incidental: the focus of these meetings was on the children’s education, not health care. Will this throw wide open the gates for employees to claim leave for a broader scope of activities, on the argument that they are tangentially related to health and well-being? When does an underlying “educational” issue becomes a health issue? Taking a child to the doctor for dyslexia testing or for counseling is covered by the FMLA. Shouldn’t meetings with teachers who will be implementing the doctors’ orders be covered as well?

Mandatory unpaid leave to attend parent-teacher conferences has been adopted in several States. Nevada requires an employer to grant unpaid leave to a parent, guardian, or custodian of a child who is enrolled in a public school for up to 4 hours each school year to attend parent-teacher conferences, school-related activities during regular school hours, to volunteer at school activities during regular school hours, and to attend school-sponsored events. California allows up to 40 hours of unpaid leave annually; the District of Columbia allows 24 hours each year. Illinois allows up to 8 hours each school year, in 4-hour increments, Massachusetts 12. Minnesota and Louisiana each allow 16; North Carolina matches Nevada at 4. Rhode Island offers 10. Vermont matches D.C. at 24.

CONCLUSION

While this is a somewhat unusual situation, it reminds us that employers need to be proactive in learning the facts surrounding an employee’s request for FMLA leave. The notice and certification requirements were meant to foster a dialogue between employer and employee to enable the employer to determine if a leave request meets the requirements under the Act. Employers should use those tools to carefully analyze FMLA-related leave requests. When an employer is in doubt as to whether a request for FMLA leave should be granted, it is best to contact knowledgeable legal counsel for advice.

Elizabeth Dorminey is a principal in the Athens office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. where she is a member of the Wage and Hour practice team. She can be contacted at ekd@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.