What to do When an Employee Does Not Return from A Leave of Absence!

November 26, 2018

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 or any other type of medical leave. Is additional leave required? What law applies and what are the obligations for an employer in this situation?  When there is an “Indefinite” leave, is it job abandonment or a termination when they do not return?

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, a bank 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 bright-line 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.



Clarifying “English-only” Personnel Policies!

November 19, 2018

Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald’s restaurant, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

In a recent case, (Martinez-Gonzalez v. Lakeshore Staffing), the appellate court disagreed.

Taking the record as a whole, no reasonable finder of fact could find that Lakeshore had a policy and culture of requiring its employees to speak only English. Lakeshore … filed seven declarations demonstrating that the so-called English-only policy could not exist because employees attested that they speak Spanish in the workplace or know of employees who openly speak Spanish in the workplace without reprimand. Martinez and Lopez do not contest either the factual veracity or the legal significance of the declarations. Instead, in support of their argument, Martinez and Lopez cite to two instances where Martinez stated she was told to speak English and one instance where Lopez testified she was told to speak English. Martinez and Lopez cite no disciplinary records in which they were reprimanded because they were speaking Spanish.
Thus, there was no evidence to support the existence of an English-only policy. That said, English-only policies certainly raise legal red flags.

As immigration and immigration reform continue to be hot button political issues, employers take a big risk when they require all of their employees to speak only English at work.

The EEOC’s position is that a “rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment” and presumptively “violates Title VII.” According to the EEOC, an “employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.”

The majority of federal courts, however, have shown slightly more tolerance of “English-only” rules. Generally, Courts will uphold an English-only rule if the employer can show a legitimate business justification for the requirement. Examples of legitimate business justifications that have been found to justify an English-only requirement are:

  • Stemming hostility among employees.
  • Fostering politeness to customers.
  • Promoting communication with customers, coworkers, or supervisors who only speak English.
  • Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
  • Facilitating a supervisor’s ability monitor the performance of an employee.
  • Furthering interpersonal relations among employees.

Thus, employers should be careful to limit the reach of an English-only requirement only as far as is necessary to reach the articulated business rationale for the policy. For example, English-only requirements have been struck down as discriminatory where the policy included lunch hours, breaks, and even private telephone conversations.

This was a favorable result for the employer. If you are considering an English-only requirement for your business, you should not do so without consulting with employment counsel, to ensure that the policy is not discriminatory as written or as applied.


Non-Solicitation Agreements of Customers & Employees by Former Employees Are Unenforceable!

November 12, 2018

A California Court of Appeal concluded that what appeared to be a standard non-solicitation of employees provision was, in fact, an unenforceable non-compete that prevented its former employees from carrying out their chosen profession.  As you continue to read I want you to imagine your particular industry and apply it to the facts in the case below. Sales consultants, key employees who interact with customers, manufacturers, and medical staff who interact with patients are a few examples.

Keeping the above in mind, the Court of Appeal in AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. upheld summary judgment in favor of former employees (Defendants) and their new employer defeating an 11 count complaint that asserted claims of breach of contract, misappropriation of trade secrets, interference with prospective economic advantage, aiding and abetting misappropriation of trade secrets, and unfair business practices after four of AMN’s recruiters were hired by Aya and recruited other of AMN’s employees to work for Aya.  In addition, the Court of Appeal upheld an injunction against the former employer from attempting to enforce such agreements in the future and awarded the defendants $190,000 in attorneys’ fees.  

Non-solicit Not Enforceable

AMN and Aya are competitors in the business of providing temporary healthcare professionals (travel nurses) to medical care facilities across the United States.  The employees, recruiters, earned their livelihood recruiting travel nurses so that their employer (first, AMN and, then, Aya) could place those travel nurses with their respective clients.  The AMN employees’ employment agreement provided that “during Employee’s employment with the Company and for a period of one year after the termination….Employee shall not directly or indirectly solicit or induce, or cause others to solicit or induce, any employee of the Company…to leave the service of the Company….” AMN sued four of its former recruiters after they were hired by Aya to recruit nurses.  While the Court focused on California’s broad public policy to allow persons to seek employment and questioned whether Loral Corp. v. Moyes’ enforcement of a similar non-solicit provision survived Edwards v. Anderson, it relied on the actual employment functions of the effected employees, recruiters, to conclude that the contract restrained the employees from engaging in their profession and therefore was void under 16600 to distinguish it from Loral Corp v. Moyes,  a case that upheld an injunction restraining a former executive from raiding his former employer’s employees based on a non-solicit agreement.

Employers Beware:  Not Everything is Trade Secret

AMN’s claimed that the recruiters violated California’s Uniform Trade Secrets Act by soliciting travel nurses that had been placed by AMN, claiming that the travel nurses names and contact information (same as customers) was its trade secret.  However, on summary judgment, the undisputed evidence showed that the recruited nurses had applied to work at Aya years before and had given Aya their contact information before being solicited to work for Aya by the former AMN recruiters.  And, the Court concluded that therefore there was nothing secret about the travel nurses contact information under CalUTSA.  The Court also pointed to a social media network, the Gypsy Nurse Group, a public social media group, as a public source of information from which the recruiters could prospect, even knowing the names of AMN’s travel nurses based on their work history for AMN.

Moreover, one of AMN’s former employees sent email to her personal email account shortly before accepting new employment, attaching a list of persons

Injunction and Attorneys’ Fees

In addition to defeating the Complaint, the Court of Appeal concluded that the injunction against AMN from attempting to enforce its agreement against other California employees was appropriate as it concluded that the provision was void and no other employees should be subject to claims or expenses associated with litigation.

And, while the trial court awarded attorneys’ fees to the defendants and due to the enforcement of an important right affecting the public interest under California Code of Civil Procedure section 1021.5, the Court of Appeal limited its decision to conclude that the fees were appropriate to a prevailing party on a matter of public importance.

Lessons Learned

Look, I get it, businesses do not want former employees taking the remaining staff with them and more importantly do not want them taking customers. The reality is, as noted above, it will be difficult to enforce these types of agreements. Do right by your employees and customers and “hope” they will remain loyal to you!

How to be a Successful Manager or Supervisor!

November 5, 2018

Over the years of working with business owners, managers, supervisors and employees, I believe I have gained a multitude of knowledge of what it takes for managers and supervisors to be successful in their roles. Soft skills are essential for successful professional development. Plain and simple!

The benefits of having these key employees with strong soft skills include better customer service, improved communications and team interactions, stronger relationships, and increased efficiency.

Here are 8 crucial soft skills managers and supervisors should have in my opinion:

  1. Communication

Managers and supervisors with developed communication skills are able to use listening techniques and nonverbal strategies to improve conversations.

It is essential for a supervisor to be able to balance time constraints and a heavy workload while managing other employees and projects.

Having excellent communication skills allows managers and supervisors to speak with impact, whether it be off-the-cuff dialogue or brief updates to their team. It is essential to keep thoughts organized and to the point.

Giving and receiving feedback is another area that can be improved with developed communication skills. When using the right techniques, feedback can be used to reinforce or change behavior. Keep in mind positive feedback as opposed to only giving negative feedback when something went wrong.

  1. Conflict Resolution

Conflict is when change happens and stances differ. When a supervisor has the ability to manage conflict well, issues come to resolutions and successful relationships are developed.

A supervisor’s ability to define and identify conflict styles, causes, and methods for handling conflict can improve the department’s or organization’s productivity.

According to my research and experience, where training does exist, it adds value: over 95% of people receiving training as part of leadership development or on formal external courses say that it helped them in some way. A quarter (27%) say it made them more comfortable and confident in managing disputes and 58% of those who have been trained say they now look for win–win outcomes from conflict.”

  1. Leadership

Managers and supervisors with leadership skills help bring accountability to their teams by creating a supportive and motivating work environment.

Leaders are able to delegate and manage a wide variety of skillsets. It is important for supervisors to lead their teams in the most effective way by recognizing where the strengths are, where improvement is needed, and how to properly use the skillsets of each team member.

  1. Critical Thinking

Critical thinking is a crucial skill in understanding how to methodically, strategically, and collaboratively make decisions, solve problems, and foster innovation.

Keep in mind that the higher up the ladder a position is, the more essential critical thinking becomes.

A manager or supervisor with critical thinking skills has the ability to develop a step-by-step process from targeting the problem to developing a solution.

Critical thinking also helps in situations in which groups have different thinking styles and need a collaborative environment created to successfully work through issues.

  1. Interpersonal Skills

Different from communication skills, interpersonal skills are important for a manager and supervisor to identify and build a purposeful team culture within an organization.

Interpersonal skills enable an individual to develop highly effective teams that are built upon consensus, effective meetings, social style understanding and relationships.

  1. Time and Priority Management

Supervisors with time and priority management skills can boost productivity and efficiency.

Being able to balance a heavy workload and time constraints while managing and delegating other employees and projects is an essential skill.

It is ideal for supervisors to understand what is urgent and what is important.

The University of Georgia conducted a study that found people who practice good management techniques often find that they are more productive, feel less stressed, get more things done, have more energy, and feel better about themselves.

Managers and supervisors with time and priority management skills are able to understand the differences in employee’s time and priority management and adjust projects and workloads to ensure success.

  1. Diversity and Generational Differences in the Workplace

The University of Florida studied workplace diversity and found that “respecting individual differences will benefit the workplace by creating a competitive edge and increasing work productivity. Diversity management benefits associates by creating a fair and safe environment where everyone has access to opportunities and challenges.”

It is crucial for supervisors to have the ability to be aware of workplace diversity and understand the gaps and differences that exist as well as their impact.

Being aware of diversity issues helps managers and supervisors appreciate the different experiences and places value on the impact it has on the workplace.

  1. Problem Solving

Good problem solving skills are fundamentally important within the workplace and actually translates into enhanced productivity and increased profit.”

A valuable manager and supervisor is someone who not only knows how to take an issue and find the root of the real problem but also has a process for solving the problem in a structured manner. Managers and supervisors with excellent problem solving skills can greatly benefit any organization.

We are in the midst of rolling out a leadership conference that will encompass a number of the ideas presented here. Training managers and supervisors can help reduce potential liability from disgruntled current and former employees. Look for more information soon.