Indefinite Leaves of Absence: Job Abandonment or Termination?

November 25, 2013

One of the most difficult issues an employer faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave required? What law applies and what are the obligations for an employer in this situation?
Despite the uncertainty of what additional leave the ADA obligates employers to provide, one general rule has always been clear — an employer is never required to provide an employee an indefinite leave of absence.

Never? A court ruling has determined otherwise!

The Facts and Court Ruling

In this case, an executive took leave for a number of medical issues, including major depression. After he had been on leave for almost five months, the employer contacted the employee to inquire whether he intended to return to work or abandon his position. The employee’s attorney responded that his client:

“…has not at any time evinced or expressed an intention to ‘abandon his position.’ Rather, he has been sick and unable to work, with an uncertain prognosis and a return to work date that is indeterminate at this time.”

The employer responded by terminating the employee based on job abandonment.
The employee filed a lawsuit and the employer appropriately argued that the employee requested an indefinite leave, which of course is not a reasonable accommodation under any law. Or is it?

In a blow to employers everywhere, the court held that the burden of proof shifted from the employee to the employer to show that the accommodation requested by the employee would impose an undue hardship on the employer. In other words, the court determined there is no accommodation — indefinite leave or otherwise — that is categorically excluded as a reasonable accommodation. In refusing to dismiss the case, the court erased a rule that an indefinite leave of absence is not required and replaced it with a more obscure standard that indefinite leave will be required unless the employer can show either: 1) that the employee could not, with reasonable accommodation, satisfy the essential functions of the job; or 2) that the accommodation would result in an undue hardship on the company.

Insights for Employers

This case should be an eye opener for employers. At a minimum, it reminds us of our obligation to keep the interactive process alive and to establish undue hardship earlier in the discussion. The employer would have been in better shape if it had adhered to a few key principles:

1. Engage your employee in the interactive process. The employer started the conversation off right by engaging the employee about his return to work. But after learning that the employee’s prognosis was uncertain, it ended the conversation. Not a good move, since there is plenty more to find out and discuss: What limitations does the employee have? What functions can he/can’t he perform? Are there any alternative modifications we can make to his job to help him get back to work? Have we discussed restructuring his position or temporarily relocating the employee to an open position in which he is qualified (until he’s able to return to his original position)? Also, employers should require that their employee provide a report from their treating physician responding to these inquiries.

2. Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations? If it’s not impacting your operations that should be a key factor in granting additional leave. However, if it is impacting operations, you want to memorialize this earlier in the process. In this case, the employee was an executive. Therefore, it likely would not have been difficult to establish that his continued and “indeterminate” absence was wreaking havoc on the employer’s operations — for example, projects likely were being pushed off, decisions were being made by less capable employees, customer service was adversely affected by the downgrade in service, other managers were required to take on more work. Once you have conducted this analysis, tell the employee about it. Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment so that you can better assess whether leave can be provided as a reasonable accommodation. That’s what another employer did and the court endorsed the employer’s actions.

3. Regardless of what state you’re in, you should maintain the same approach. This case serves as a reminder that, depending on where your business is located, state or local law may exact even more stringent requirements than the ADA. However, your approach should remain the same, regardless of where you are. Communicate with your employee, engage them in the interactive process, and identify hardships early on so you can articulate them to your employee and make a more reasoned decision.

Employers have to understand that they cannot be too quick in letting employees go while they are on a medical leave of absence especially if they are not costing you. The longer they are out it works better for the employer IF after their eventual return the employer was not able to hold their job. Leave the emotions out and follow the guidelines noted above.

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Judge: “Employers Can Ban Workplace Recordings by Employees”

November 19, 2013

With audio recording applications (“apps”) often standard issue on ubiquitous smart phones, employees are now armed with a relatively inconspicuous way to capture their supervisor’s every gaffe. In September, a $280,000 jury verdict in favor of an employee on race and sex discrimination claims demonstrated just how damaging an audio recording can be in employment litigation. In that case, the plaintiff, who is African American, caught her supervisor, who is Hispanic, using the “N” word on tape, and the judge admitted the recording into evidence. Putting aside the risk of employees collecting damaging evidence for anticipated litigation, the ever-present specter of audio recording can undermine the type of corporate culture that so many employers are trying to encourage nowadays, one that thrives on collaboration and candid discussion among colleagues.

In thirteen states — California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington — anti-wiretap laws generally prohibit the recording of face-to-face communications without the consent of all parties to the communication. However, in the remaining 37 states and under federal law, audio recordings, whether surreptitious or not, are legal so long as the person making the recording participates in the recorded conversation. In these states, secret recordings by one of the participants not only are legal, but the former Acting General Counsel (“Acting GC”) of the National Labor Relations Board (NLRB) recently took the position that workers have a legally protected right to record their co-workers and managers. In a decision published on October 30, 2013, an administrative law judge (ALJ) flatly rejected the Acting GC’s position and upheld the employer’s general prohibition on all audio recordings in the workplace without prior management approval.

The employer in that case, Whole Food Markets, promulgated the prohibition to thwart the “chilling effect” of workplace audio recording. More specifically, Whole Foods’ policy explains that concern about audio recording “can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” Although not stated in the policy, Whole Foods’ head of human resources testified that the policy applied to all employees, whether management or non-management; to all devices that captured voice; and in all areas of the store, including the store’s parking lot and entrance area; but only during working time.

For Whole Foods, candid discussion of company operations underpins the corporate culture. As explained by the HR executive, regional management meets at least once each year with non-management employees of each of the region’s stores — without store management being present — to obtain candid feedback on store management. In addition, store managers meet periodically with store employees to discuss a range of business matters, some of which are confidential. Finally, in an effort to promote team harmony, each store’s departments, including the department’s leadership and team members, have regular team meetings to discuss whether a probationary employee should be permitted to join the team. The HR executive testified that an employee’s audio recording of any of the meetings would undermine their purpose.

Before addressing Whole Foods’ business justification for its “no recording” policy, the ALJ found no authority supporting the Acting GC’s position that the company’s ban on recording was facially invalid because it interfered with employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to discuss the terms and conditions of employment. The ALJ could not have been clearer on this point: “Making recordings in the workplace is not a protected right, but is subject to an employer’s unquestioned right to make lawful rules regarding employee conduct in the workplace.”

The ALJ found the ban on recording to be lawful for two principal reasons. First, the explanation of the policy’s purpose, embedded in the policy itself, was “a clear, logical and legitimate description of the reason for the rule,” and the policy “addresses legitimate business concerns.” Second, the HR executive provided credible examples “of company meetings where candor and forthrightness in employee opinions are essential.” The ALJ also found that “employee comments would certainly be inhibited if employees believed that their remarks were recorded and possibly replayed for store management.”

While Whole Foods’ legitimate and supported business justification drove the ALJ’s decision, the absence of any evidence that the policy resulted from anti-union sentiments or was intended to squelch employees’ protected concerted activity also was important. Nothing in the policy prohibited employees from discussing the terms or conditions of employment or from documenting matters related to them, such as workplace safety hazards, by writing a contemporaneous note. In addition, there was no evidence that Whole Foods established the policy in response to union activity or that the company had applied the policy to restrict employees’ discussions about the terms or conditions of employment.
While this decision is not binding on the National Labor Relations Board and there is a fairly strong likelihood that the decision will be appealed to the Board, the decision provides the following important guidance for employers who are concerned about recording in the workplace:

o A legitimate ban on recording in the workplace without management approval is defensible under the NLRA;
o The employer should specify the legitimate business justification for the ban in its “no recording” policy;
o Preventing the “chilling effect” on internal company discussions can be a legitimate business justification for a “no recording” policy;
o An employer who does rely on the importance of frank workplace discussions to justify a “no recording” should be prepared to provide examples of specific situations where (a) recording in the workplace would inhibit frank discussions, and (b) that inhibition materially undermines the employer’s legitimate and important business objectives;
o Whatever the justification, apply the policy to all employees, not just to non-management employees;
o Avoid promulgating the policy in response to union activity; and
o When applying the policy by disciplining an employee for recording communications without management approval, carefully analyze whether the recording itself could be considered an exercise of the employee’s protected rights under the NLRA.


The Do’s and Don’ts of Investigating Accidents in the Workplace

November 11, 2013

Workplace accidents continue to plague employers either with the injured worker’s modified duty requests, is out for extended periods of time, is not complying with company policies, or is not attending therapy sessions. More importantly, the rise in premiums are becoming so ridiculous some employers are letting policies lapse and taking this chances (not a valid option!).

In an effort to curtail the impact of the claim, employers will initiate an investigation to determine exactly what happen but do not always understand the pitfalls of doing so. They can be hap hazard, non-beneficial, and even be counter-productive because the individuals conducting the investigation do not understand certain parameters. Here are some “do’s and don’ts.”

1. Witnesses-When conducting interviews always have a witness available. Sound simple? It can be overlooked in haste and others not being available when you need them. Wait, there’s no immediate rush. Furthermore, keep in mind, later, if you did not use a witness, the other person may “recall” what you said, not what you “actually” said. Sometimes it is even better to use professionals who know what they are doing especially for major accidents.

2. Objective v. Personal opinion as to the cause of the accident-The vast majority of the time employers want to argue that the claim, in their opinion, is fraudulent. The various Workers Compensation Appeals Boards could care less about your opinion. Their perspective is going to be what you can prove. You have to be objective in your approach not subjective. Approach all accidents with the understanding that all documentation gathered will be put under the microscope. Jump out of your role as an embittered employer and look back into the matter as if you were on the other side. It’s like playing chess and you turn the board around so that the other player’s pieces are now in front of you and you are looking back across at yours. It’s a whole different perspective.

3. Do not rush an accident or incident report-Mistakes get made when things are rushed. If the injured worker is being cared for you can calmly sit down with the necessary parties who will be investigating the matter and strategically plan your next moves. For major accidents you will more than likely get a call from an agency. Resist the pressure enough to procedure in an orderly manner. Do not panic and rush because all of the documentation gathered needs to be as accurate as possible. Remember, after the dust settles, it will no longer be about the accident, it will be about loss mitigation. Take your time and get it as close to right as possible.

4. Avoid immediately telling the main witness to sit down “right now” and write what happened-These witnesses are not professionals. Having them sit right down and putting pen and paper in their hand could make them extremely nervous aside from what they may have witnessed. Give them a moment to relax so they can calmly recall what they may have seen. If you rush them into writing something and they make a mistake that same documentation can be used against you. In addition, don’t stand behind them looking over their shoulder. When the time is right, give them a quiet place so they can collect their thoughts. Furthermore, hold back your safety committee (if you have one) from immediately springing into action. As stated above, huddle up first to make sure the effort will be a productive one.

Finally, I realize that you, as an employer may feel that a claim is fraudulent. It may well be. Hiring professionals to try to go out and catch these individuals partying over the weekend may be extremely costly with no end result. I am not stating that it has never worked but I want to remind you that law is designed to benefit the injured worker and leans hard in that direction. It is a shame, to say the least, but that is the hand employers are dealt when they hire employees.

Note: Remember, it is always good to talk with counsel if you are unsure of the proper way to procedure and especially if an agency has contacted you.


New Case: Federal Law Now Protects Transgender Employees

November 4, 2013

Approximately 14 states protect sexual orientation. Federal protection has been non-existent or minimal at best. Now the Equal Employment Opportunity Commission (EEOC) is sending a clear message that it will protect transgender employees from discrimination. This is no longer a state-by-state issue. This case, and recent others, now makes it a federal issue that impacts employers in every state.

In a conciliation agreement with the EEOC, a supermarket owner in South Dakota has agreed to pay $50,000 to a former employee who was fired for being transgender. An investigation by the EEOC revealed that the owner of the market terminated the well-performing employee, who had recently been promoted, after she indicated her intent to present as a woman. Following the investigation of the discrimination charge filed by the former employee, the EEOC determined that there was reasonable cause to believe that the company violated Title VII of the Civil Rights Act of 1964.

In addition to the EEOC’s recent decision on sex discrimination, Macy v. Department of Justice, (April 20, 2012), there has been a steady stream of district court decisions finding that claims of discrimination based on transgender status, also referred to as gender identity, are cognizable under Title VII’s sex discrimination prohibition.

“Employers need to be made aware that their personal myths, fears, and stereotypes about gender identity can subject them to liability if they act upon them in an employment setting,” said Julie Schmid, acting director of the EEOC’s Minneapolis Area Office.

In addition to paying $50,000, the conciliation agreement requires the market to obtain professional anti-discrimination training annually for all of its employees; implement and distribute an anti-discrimination policy to all employees; report all future complaints of discrimination to the EEOC; and provide the former employee with a letter of apology and a neutral letter of reference.

The EEOC’s Minneapolis Area Office is part of the Chicago District, which has jurisdiction over Illinois, Wisconsin, Minnesota and North and South Dakota. The EEOC enforces federal laws prohibiting employment discrimination.

The times are changing and employers are going to continue to be challenged on a state and federal law. Men and women are undergoing “gender re-assignment” and employers need to understand they will be protected irrespective of religious or personal beliefs. A number of our clients have been confronted with men, dressed as women, applying for jobs or have had a male employee announce that he is going to have gender-reassignment. Issues such as dress code, restroom facilities, employee comments and customer concerns are becoming commonplace questions for our staff. If you are not sure how to resolve a given set of circumstances please contact us. If you are a non-client you can pose your question on the comment section of the blog and someone will respond directly to you in confidence.