Employees Obligation To Provide Proper Medical Certification

March 26, 2012

The FMLA is a confusing topic for employers and human resource professionals. Many times, the mere mention of the letters “F” “M” “L” “A” out of an employee’s mouth are enough for the employer to grant the employee leave, no more questions asked.

This is why two recent federal district court opinions are helpful to employers navigating the FMLA terrain as they highlight that an employer does not have to take the employee at his or her word that FMLA time off is needed. Rather, the employer has the right to request and receive proper medical certification of a serious medical condition from a health care provider or else the employee’s leave is simply not covered under the FMLA and the employer may proceed with its discipline procedures.

The first decision, Huberty v. Time Warner Entertainment, concerns an employee who informed his supervisor that he needed to take time off for a stress in his life. He was referred to human resources who began dealing with his request for time off. In the meantime, he began taking time off and apparently started to search for a doctor who would certify his need for time off.. Needless to say, the employee never found a doctor to certify his condition and the employee was terminated for violating the company’s no call no show policy. The employee sued for FMLA retaliation and interference.

Judge Adams granted the employer’s request for summary judgment and held that the employee’s own subjective assessment of his health condition was insufficient to satisfy his burden to prove that he was suffering from a “serious health condition” under the FMLA and made clear that a “health care provider” must make the determination that the employee cannot work:

It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. If it were otherwise, a note from a spouse, parent, or even one’s own claim that one cannot work because of illness would suffice. Given the legislative history surrounding its enactment, the FMLA cannot be understood to establish such liberal standards for its application.

The next day, another federal court judge issued another favorable decision in  Poling v. Core Molding Technologies. In Poling, the plaintiff requested intermittent leave due to a condition known as Reflex Sympathetic Dystrophy Syndrome (“RSD”). The employer accepted and certified plaintiff’s FMLA leave for his requested monthly treatments and physical therapy. Between May and September 2008, however, the employee never took FMLA leave. On September 20, 2008, the employee called in, left a voice mail message that merely stated: “Terry Poling, Night Shift, FMLA.” The employer sent the employer a letter informing him of his FMLA eligibility and requested medical certification for his absence. The letter warned the employee that his failure to provide the certification could result in a violation of the company’s attendance policy because the employee had exhausted all other leave entitlements. The employee was asked numerous times for the medical certification but never provided sufficient medical certification. The medical documentation he did submit merely mentioned plaintiff’s RDS condition, but was silent on the reason for the employee’s absence from work. The employer gave the employee another chance to provide proper medical certification, but he failed to submit any and was terminated.

He sued for FMLA interference and discrimination and the court granted summary judgment for the employer and reaffirmed the black letter language of the FMLA that allows an employer to require that a request for leave be supported by a certification issued by the employee’s health care provider. An employee’s failure to do so means that the “leave is not FMLA leave”.

These cases highlights that employers have ways to make the FMLA pill easier to swallow and defenses at their disposal. They just need to know what they are, be thorough, be thoughtful, and be consistent.


New Legislation: The Unemployed May Be A New Protected Class If Not Hired!

March 19, 2012

As if there weren’t enough reasons to sue employers! Now, because our State and federal lawmakers are growing increasingly concerned that our economy is making it difficult for long term unemployed workers to get back into the workforce, there is a movement to make being unemployed a new protected class.  With a larger than normal percentage of voters being unemployed, you can bet this will be popular with some politicians up for re-election in November. 

California is one of a number of states where legislation has been introduced to protect unemployed workers and prohibit an employer from using a person’s unemployed status at the time of applying for a job as a negative criteria in the hiring process.  The California bill is AB 1450 and was introduced in January.  In addition to the California bill, Congress has introduced HR 2501 in the House and S 1471, two bills that would provide similar protections on a nationwide basis. 

Currently, most protected status suits deal with harassment and termination of the employment relationship.  Hiring discrimination cases are relatively rare.  However, if any of these bills pass, employers covered by them should expect a wave of new litigation by unemployed applicants applied for positions but were not hired.  Employers will certainly have to alter their hiring practices and train those making the hiring decisions and doing the screenings, in order to ensure that they can defend against such suits. 

These bills will be something to keep an eye on in the coming months.  We will continue to keep you posted on this blog.


Employee Rights Posting Requirment-Update

March 12, 2012

We have been receiving a number of calls and emails regarding the still pending “Employee Rights Posting.” On March 2, the United States District Court for the District of Columbia issued a ruling upholding the National Labor Relations Board’s (NLRB) employee rights poster.  The ruling was issued in a lawsuit brought by the National Association of Manufacturers (NAM) to challenge the NLRB’s authority to mandate such a poster.  In its ruling, the court held that the NLRB was within its authority to issue a rule requiring employers to post the employee rights notice.  The court rejected NAM’s argument that the posting requirement violates employers’ free speech rights. 

Although the court upheld the posting requirement, it did place some limits on the NLRB’s enforcement efforts.  The court held that an employer’s failure to post the notice, in and of itself, may not be automatically deemed an unfair labor practice by the NLRB.  However, an employer’s “knowing and willful” failure to post the notice may be considered as evidence supporting a finding of an unlawful motive on the part of the employer in a case alleging some other unfair labor practice by the employer.

The court also invalidated a portion of the NLRB rule providing that the statute of limitations would be tolled in unfair labor practice actions against employers who failed to post the notice.  The court held that the NLRB’s effort to extend the clear six-month statute of limitations provided for in the NLRA exceeded the NLRB’s authority.

The court’s ruling in the case brought by NAM is the first ruling in one of several cases challenging the validity of the NLRB’s employee rights poster.  Another ruling is expected in the near future in a lawsuit brought by the Chamber of Commerce in South Carolina.  It may well be that the ruling in the NAM case will be appealed as well.  Employers should stay tuned for further legal developments with respect to the notice.  In the meantime, the current effective date for employer compliance is April 30, 2012.  No court has halted or invalidated that posting deadline.  As such, employers are advised to begin posting the employee rights notice effective April 30 barring contrary legal developments before that time.  The poster is available on the NLRB’s website.

Car Dealerships-A special announcement!

Car dealers have received wage class action demand letters or complaints in recent months seeking hundreds of thousands or even millions of dollars in back pay for service department technicians who experience down time between flag hours, even though the dealer has paid the technicians at two times the minimum wage for all hours worked in full compliance with  Industrial Welfare Commission Order No. 7-2002.

 There is, however, a way to defeat the class and to minimize exposure to such large liability and legal fees.  In order to proceed in a class action, the complaining party must show the court that there are (in most cases) at least 25 current and former individuals in the class covering a period of 4 years prior to the date the complaint was filed. An California appellate court decision in 2009 permits an employer facing a demand letter or a complaint to “buy out the class,” that is., to obtain a release from each current and former service technician by paying each individual $XXX.XX in exchange for a release of all wage claims.  Using this procedure enables the dealer to reduce the number of potential claimants to a smaller number below that required to maintain a litigation as a class action.  If, for example, there were 45 current and former technicians (in a four year period) and 35 of them signed a release, the matter would not certified to proceed as a class action.  The matter in all likelihood would not ripened into class complaint where the dispute was raised in a demand letter, and could in any event then be settled in mediation for a payment far less than the potential exposure and fees associated with litigation.  The legal fees incurred in following this buy-out procedure is typically less than $20,000, whereas not going through the procedure and defending a class action litigation results in defense costs in the hundreds of thousands of dollars, exposure to liability and exposure to opposing counsel’s fees as well. 

 Dealers who face these suits may retain defense attorneys who are financially motivated to take these cases through trial rather than quickly resolve these claims or minimize the number of potential claimants by recommending that the dealer buy out the class. Any dealer who has received a demand letter or been served with a complaint can call me and I will explain the procedure for buying out the class in greater detail.

 This special announcement was provided with assistance from:

 Arthur F. Silbergeld 
Dickstein Shapiro LLP
2049 Century Park East, Suite 700 | Los Angeles, CA 90067
Tel (310) 772-8308 | Fax (310) 772-8301


Employer Loses Based On A Faulty Arbitration Agreement

March 5, 2012

With the advantages inherent to arbitrating – rather than litigating – employment disputes, arbitration provisions between employer and employee have seen a sharp increase in recent years.  There have also been some significant new court decisions out of the United States Supreme Court favoring enforceability of these agreements.  Nonetheless, it remains true that California courts continue to scrutinize these agreements carefully and in many cases, still find them unconscionable and unenforceable.  The recent case of Ajamian v. CantorCO2e is one such example. 

In Ajamian, the employer and employee entered into an arbitration agreement providing that any and all disputes would be resolved by final and binding arbitration.  In March 2010, Ajamian’s employment was terminated, and later that year she filed a complaint in civil court, asserting claims for sexual discrimination, sexual harassment, retaliation, and various wage-hour claims.  Ajamian refused to arbitrate.

The first issue the court addressed was whether the parties’ agreement called for an arbitrator or a court to decide the preliminary issue of whether the arbitration agreement was enforceable.  Under the Federal Arbitration Act, the enforceability of an agreement is ordinarily to be determined by the court, but the parties may agree in the arbitration agreement that the enforceability issue will be delegated to the arbitrator.  To establish this exception, it must be shown by “clear and unmistakable” evidence that the parties intended to delegate the issue to the arbitrator.  The relevant language of the agreement in this case read: “Any disputes, differences or controversies arising under this Agreement shall be settled and finally determined by arbitration.”  The employer argued this language showed the parties intended that even the threshold issues of unconscionability would be decided by the arbitrator.  The employee, on the other hand, argued the language encompassed only all substantive disputes, while the enforceability of the arbitration provision itself remained a matter for determination by a court.  The court agreed with the employee that the language was not explicit enough to show that the parties expressly intended for an arbitrator to decide the issue of enforceability.  As a result, the issue was left to the court to decide.

After determining the court was tasked to decide enforceability, it then turned to whether the agreement was sufficiently fair to Ajamian to allow the dispute to go to arbitration.  First, the court found the non-negotiable, “take-it-or-leave-it” nature of the agreement amounted to some unfairness.  Despite the fact that Ajamian had an attorney review the agreement on her behalf prior to her signing it, the court found that the agreement still was not a product of negotiation.  Ajamian had no “realistic bargaining power,” and was required to sign the agreement to receive her promised compensation for work she had already performed.  As such, the agreement was procedurally unconscionable.  The court also found several of the agreement’s terms substantively unconscionable.  The agreement limited Ajamian’s ability to recover certain damages, forced her to forfeit otherwise “unwaivable” California statutes, and compelled her to travel to New York from California to attend arbitration, thereby costing Ajamian thousands of dollars she otherwise would not have to spend.  Most importantly, the agreement allowed the employer, but not the employee, to recover its attorneys’ fees as prevailing party.  These factors, taken as a whole, led the court to hold that the arbitration agreement was unconscionable and unenforceable.

This case is a reminder that any arbitration provision intended to leave the issue of enforceability to an arbitrator must be explicit.  Employers should also ensure that the substance of the agreement (e.g., not limiting employee’s recovery and not adding extra costs to employee) is sufficiently fair to the employee to pass muster.