What Can An Employer Ask When An Employee Calls Off Due To Illness?

September 28, 2015

One of the most common questions we receive is whether or not a manager can ask/demand the reason a person is calling off due to illness. They want details. This issue is on the rise, as one example, in California because of the new sick leave law. Employees are apparently taking advantage and managers are trying to curtail the call-ins.

Most managers are unclear if they have the right to ask for details as to the nature of the illness. In general, employers are allowed to ask for the details of the illness. In my opinion, it’s reasonable for a manager to ask an employee what’s wrong. Otherwise, it would be a no-questions-asked sick leave policy, and that would quickly be abused as noted above. ​​Simply asking what is wrong requires the employee to give a brief and general explanation about why he or she is absent, e.g., the employee’s child is sick, the employee has a general illness or the employee has a major or minor injury is not unreasonable. Follow-up questions should be limited to asking about when the employee expects to return to work. Do not get too nosey!

Now, let’s also understand there’s a key exception to the opinion stated above if the reason for the absence is a medical condition that’s protected under the Americans with Disabilities Act. The ADA offers protections to employees with physical or mental impairments that substantially limit one or more major life activities​ such as seeing, hearing, speaking, walking or breathing. A person with, for example, epilepsy, HIV or a substantial hearing or visual impairment would generally be covered, but someone with a minor condition of short duration – such as a cold, the flu or a sprained ankle – generally wouldn’t be covered so you have a little more room to ask questions.

Keep in mind, the ADA does allow an employer to make inquiries into the ability of an employee to perform job-related functions and therefore, the manager can and should still ask the employee with a probable ADA situation when he or she expects to return to work. The ADA does not permit managers to push employees for information beyond questions that are “job-related and consistent with business necessity.”​ So if, for example, the employee explains that he/she is calling in sick because they need dialysis treatment or need to check into a mental health facility (both things likely covered by the ADA), the employer can ask when the employee expects to return to work but shouldn’t question beyond that.

Can the employer require an employee to produce a doctor’s note verifying the illness?

Employers can indeed require doctors’ notes when using sick leave. However, they should not require the note to include a diagnosis or other private medical information; rather, the note should simply state that they were seen by a medical office and/or confirm they needed to use sick leave. California employers should be a little more cautious here if the nature of the call-in falls under their new sick leave law. Let it go unless the time off exceeds the three days offered by law.

Consider this. Just because the law allows employers to require doctors’ notes doesn’t mean they should do that. Minor illnesses, such as colds and the flu, don’t generally require a doctor’s care, and requiring a doctor’s note in order to use sick time discourages employees from staying home when they’re ill. That’s an unfair burden on truly sick employees, who will have to drag themselves to a doctor when a few days of resting in bed will cure them. This tactic also drives up health care costs by pushing people to the doctor when they only need home care. It also signals to your employees that you don’t trust them enough to treat them like adults. Use some common sense here and not an emotional response that you really believe they are really off good timing it somewhere (which honestly they maybe but who has the time to figure that out!).


The “WAGE Act” Presents Another Headache for Employers!

September 21, 2015

Well, here we go again. Another potential headache that would drag employers into another opportunity for litigation. Here’s the latest. Washington Senator Patty Murray and Virginia Congressman Bobby Scott (both Democrats and excuse me for being political) last week introduced, and sponsored, the Workplace Action for a Growing Economy (WAGE) Act.

What would the WAGE Act do?

  • Triple the back pay to employees fired or retaliated against for engaging in protected concerted activity.
  • Provide employees with a private right of action to bring suit to recover monetary damages and attorneys’ fees in federal district court, in addition to injunctive relief.
  • Clarify that joint employers are jointly responsible for violations affecting workers supplied by another employer.
  • Establish civil penalties up to $50,000 for employers that commit unfair labor practices, with double penalties for repeat violations.
  • Impose individual liability for employer violators on officers and directors.
  • Allow the NLRB to issue a bargaining order upon finding that an employer prevented a free and fair election, provided that a majority of employees signed authorization cards within the previous 12 months.

What else do you need to know about the WAGE Act? It’s supported by the AFL-CIO, the Teamsters, the Communication Workers of America, The Leadership Conference on Civil and Human Rights, The Century Foundation, and other worker-rights groups. Not surprising that these groups would be all in on such a proposal. They are desperate and so is the administration in Washington that has tried to force the Union on employers all over the country. This is yet another attempt. Here are some supporting comments:

AFL-CIO President Richard Trumka described the legislation:

The WAGE Act puts corporations who abuse working people on notice that there will be real penalties for lawbreaking. Penalties like triple back pay, strong civil penalties and preliminary reinstatement.

Teamsters General President James P. Hoffa added:

For too long employers have manipulated and abused the system under the National Labor Relations Act. The WAGE Act offers real reform to our current laws and provides worker protections through significant penalties that will discourage employers from acting illegally. It is long past time to bring our labor laws into the 21st century.

The Act’s co-author, Senator Murray, continued:

Too often, as workers are underpaid, overworked and treated unfairly on the job, some companies are doing everything they can to prevent them from having a voice in the workplace. The WAGE Act would strengthen protections for all workers and it would finally crack down on employers who break the law when workers exercise their basic right to collective action.

Whether this bill gets passed or not it is indicative of the growing battle that employers have trying to keep this current administration in Washington from forcing the Union down their throats. In addition, it is clear that the labor movement is setting up the 2016 election to be a referendum on the American working class. This bill is a symptom of this problem, not the solution. Nevertheless, it illustrates the class divide that could lead to a greater resurgence of organized labor.

A final message. Let me make it perfectly clear that I support a healthy work environment. Employers should be proactive with working with their employees to create a workplace that is fair and balanced. If you treat your employees’ right you will not have to worry about them wanting the Union.


Tips for Providing a Reasonable Accommodation for Religious Holidays

September 14, 2015

Today is Rosh Hashanah, the Jewish New Year, which means Jewish employees may be taking the day off. It’s that time of the year where various holidays are quickly approaching and the question that always arises is whether an employer has to grant a request for time off.

Title VII requires an employer to reasonably accommodate an employee’s sincerely held religious belief, practice, or observance which conflicts with a work requirement, unless doing so would create an undue hardship. A few points. Besides using a common sense approach, consider the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating cost of the business, and the number of employees who will in fact need a particular accommodation.

With the above in mind, scheduling changes, voluntary substitutions, and shift swaps are all sensible accommodations. It has been held that imposing these changes on an employee (the one not requesting the accommodation) involuntarily would create an undue hardship. An employee who offers voluntarily to fill in for the employee requesting the accommodation would not create an undue hardship.

Another issue that has arisen is whether an employer has to accommodate what might be termed to be a “crazy” religious belief. Do not go there. One employer recently found out the hard way.  They did not understand that it is a losing battle to debate theology with employees who request religious accommodation.

The company was ordered to pay an employee more than five-hundred thousand dollars because the employee retired rather than have his hand scanned by a biometric screener, which he believed was imprinting “the Mark of the Beast” described in the New Testament Book of Revelation. The lawsuit was brought, and won, by the Equal Employment Opportunity Commission. The Defendants have said that they will appeal.

The facts were simple enough. The employer started using biometric hand screening to track attendance and hours worked. It accommodated two employees who had fingers missing from their hands, thus proving that accommodation was possible. The employee who requested the accommodation provided a written explanation for his religious belief and offered some non-biometric ways for the company to monitor his comings and goings. The company refused based on the fact that the biometric screening vendor had been confronted with this same issue in the past and had a prepared document explaining that it was not, in fact, placing “the Mark of the Beast” on employees’ hands. The document even purported to interpret Scripture. Well, the employee, reasonably, elected not to take his Bible lessons from a vendor and retired instead. Then he filed an EEOC charge. Then the EEOC sued on his behalf. Then the company got clobbered in court.

Look, legally, it doesn’t matter what you as the employer think. The critical question is whether the religious belief is “sincerely held,” not whether it is correct in your opinion. The courts do not care about your opinion as to whether you disbelieve the beliefs of the employee. Focus on the accommodation tips noted above and be prepared to substantiate any decision you make.


Businesses Concerning the New “Joint Employer Rule” Just Took Another Hit!

September 8, 2015

The National Labor Relations Board (NLRB) recently rendered a decision regarding Browning-Ferris Industries of California, Inc., which dramatically expands joint employer liability under the National Labor Relations Act (NLRA). A business can be found to be a joint employer of individuals, the Board concluded, even if the business has only unexercised potential power to control the individuals’ work indirectly. The Board argues that this broad concept of joint employment is necessary because otherwise an entity with real control over the economics of a business could insulate itself from the obligations of an employer by contracting with a third party to employ the workers who keep the business running.

Beware! Do not overlook the potentially major significance of the decision for wage and hour for lawsuits.. Even though the NLRA and the Fair Labor Standards Act (FLSA) embody different tests for identifying employer-employee relationships (common law v. economic realities), the Wage and Hour Division will undoubtedly cite the NLRB’s expanded view of who can be a “joint employer” to support the Wage and Hour Division’s expected further efforts to expand the range of parties that may be found responsible for wage and hour violations. This is serious business.

The Wage and Hour Division is likely to argue that the NLRB’s increased readiness to recognize joint employers under the NLRA, which has always been understood to embody a more stringent common-law agency test for establishing joint employer status, supports a broad view of joint employment under the Fair Labor Standards Act’s “economic realities” test for whether an employment relationship exists. The NLRB’s majority labored to explain how its joint employer concept is consistent with the common-law agency test. The Wage and Hour Division is not constrained by the common law’s right to control test and is likely to be emboldened to adopt an expansive joint employer standard under the more flexible economic realities test.

Indeed, last month, the Wage and Hour Division issued an Administrator’s Interpretation addressing the distinction between employees and independent contractors under the FLSA. That guidance is noteworthy for emphasizing the importance of whether an individual’s services are an integral part of a company’s business and downplaying the importance of whether the business controls an individual’s work. The Administrator’s view of what constitutes an employment relationship–if the courts accept it–would potentially support a joint employer doctrine that is dramatically broader than employers have seen to date and that could be used by the Department of Labor (DOL) and aggressive plaintiffs’ lawyers to pursue businesses for wage and hour violations involving individuals with whom the defendant companies have never had a direct relationship.

The Administrator of the Wage and Hour Division has long expressed concern about what is termed the “fissuring” of the employment relationship. At the heart of this concept, is the notion that business giants profit from the services of individuals who are direct employees of third-party companies, usually lower on the economic totem-pole.

The Wage and Hour Division has adopted a strategic enforcement plan that seeks to hold top-level companies responsible for wage and hour compliance as to the individuals who work in their business sector–regardless of whether a direct employment relationship exists. As the Wage and Hour Division appears to see things, a broad joint employer theory is essential to its efforts to target supposedly deep-pocketed national companies. Businesses that could be vulnerable to joint employer claims include suppliers, contractors, lessors, private equity, and venture capital investors, companies that outsource work, staffing agencies, franchisors, creditors, and parent entities that have subsidiary businesses.

The combination of the Browning-Ferris decision and the Wage and Hour Division’s recent independent contractor guidance should serve as a warning to businesses in general to assess their potential exposure to wage and hour claims based on a joint employer theory. Assessments of this type should start with a close examination of contractual relationships with third-party employers to determine whether changes can be made to those agreements to reduce the risk of joint employer liability under the expanded definition of that term adopted by the NLRB and likely on the horizon from the Wage and Hour Division.