Abusing FMLA Leave: Court Sides With the Employer!

July 1, 2019

In any given week we are asked about employees “abusing” FMLA leave by being “up and about” when they “should” be home recouping. Well, a recent case finally spreads some light on catching up with an abuser.

The facts were simple enough. The employee was on an approved FMLA leave and apparently everything was going great for the employee. until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to the employee’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing, the employee admitted to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and the employer terminated him.

The Court had little difficulty in concluding that the employer had a legitimate basis to conclude that the employee had dishonestly misused his leave by going fishing. The court rejected the employee’s arguments that he had not done anything on the fishing trip inconsistent with his medical restrictions, and further that he could not have dishonestly used his FMLA leave to go fishing because the trip occurred between shifts (lol!).

None of that evidence supported an inference that the employer impermissibly used Plaintiff’s taking of FMLA leave as a factor in the decision to terminate Plaintiff. Even if Plaintiff was able to successfully identify flaws in his employer’s reasons for Plaintiff’s termination, Plaintiff  provided no basis to infer that the employer relied on anything other than Plaintiff’s dishonesty, which is a lawful basis for termination, in terminating him. As a result, no reasonable fact finder could determine that Plaintiff’s taking FMLA leave was a negative factor in his termination.

There is little doubt that some employees will abuse and that remains a problem for employers. A few reminders, employers can enforce call-in rules, and certifying and recertifying the need for FMLA leave. Communicating with employees on leave can be awkward but some advocate that it is good to check on the employee and also giving them the company’s expectations of them while on leave (not doing any company work as an example).

In the present case, the employee claims to have misunderstood his responsibilities while out on his leave. He thought that he could take his trip (a) because fishing wasn’t inconsistent with the medical restrictions for his hiatal hernia and gastroesophageal reflux disease, and (b) because he took his trip during a time when he wouldn’t otherwise have been working. The employer, however, viewed this as FMLA misuse and fraud. Clear communication on the front end could have established expectations (don’t do anything physical; leave means leave, not vacation as other examples).

As a final note, always check with counsel before making any decision to terminate while a person is on leave or just returning.


The Impact of the “Me-Too” Movement on the Working Relationship! Some Tips!

June 24, 2019

With all of the issues surfacing regarding past sexual harassment and sexual assaults being brought up, we have noticed more men being hesitant working around female co-workers. Managers and supervisors are keeping their eyes open (which is a good thing) for unintended consequences based on new policies and working relationships that previously may have been relaxed.

Across the nation various states are adopting legislation forcing employers to conduct more training in a number of areas including sexual harassment for managers and employees alike. Not a bad thing. Some employers had already been training and educating their workforce however, some males are developing concerns about engaging in mentoring relationships with female employees. Companies are losing the benefit of employees sharing valuable experiences and lessons because communications are stifled. But, mentoring is as important today as ever—for both males and females. Just think about the many mentors (including of the opposite sex) who have helped you along the way.

While remaining sensitive to harassment issues, employers must challenge employees’ tendencies to simply retreat. Educate employees about the importance of mentoring relationships and appropriate boundaries. Here are a few common-sense tips for mentoring relationships:

  • Be smart about it. Meet in public places.  This may include the corner coffee shop or a windowed conference room at the office.  Be transparent about where the meetings occur.
  • Meet at a respectable hour. Have you heard the saying, “Nothing good ever happens after 12:00 am?” Similarly, a good rule for mentors/mentees is to avoid meeting one-on-one at night. Try to schedule meetings in the morning or during work hours. Only rarely schedule a meeting for after work and, if it is necessary, immediately after work. Keep in mind, alcohol gets blamed for a number of things but will not let you off the hook.
  •  Focus on work issues. What are the mentee’s goals? What obstacles is the mentee currently facing in the workplace?
  • Again, focus on work issues. As a mentor, be very careful not to discuss physical appearance or family responsibilities. Remember, the value in mentoring comes from the ability to learn and grow from what is happening at work, not at home. Leave broader life coaching to life coaches.
  • Mentoring is admittedly tricky. A mentor is not a supervisor and is not conducting an appraisal. Discussions are more wide-ranging than when a manager is completing a performance evaluation. Yet, mentoring is critical to developing your workforce. Don’t let the fallout from the “Me-Too” movement create a backlash where avoiding working with females then presents other issues such as “bullying” (leaving others out) or gender based lawsuits. Simply act professionally and everything should be fine.

Two Articles: Holiday Pay & Meal Break Violations

June 17, 2019

Holiday Pay

The 4th of July is coming up and as usual there will be inquiries regarding holiday pay. When it comes to holidays, many employers in California and across the country tend to give employees either the day off with pay (“paid holiday”), or give extra pay for hours worked similar to overtime pay (“holiday pay”). The most common include the 4th of July.

Let’s be clear, neither federal law, nor California law, requires employers to give holiday pay or paid holidays. This is true whether it is an exempt salaried or non-exempt hourly paid employee. Keep in mind if you offer holiday pay that’s great. If not, there isn’t much an employee can legally do.

However, there are exceptions: e.g., if you have a holiday pay policy or practice, if holiday pay is promised in an offer letter or employment agreement, if the union collective bargaining agreement requires holiday pay, etc. In those cases, the employer may be contractually bound to give holiday pay or paid holidays. By the way, studies have shown that paid time off boosts employee morale and can lead to higher productivity and reduced employee turnover.

Meal Breaks continue to be an issue!

On April 12, 2019, in a federal case known as Hamilton v Wal-Mart Stores, Inc., a California jury awarded more than $6 million in meal break premiums to a class of Wal-Mart employees who worked at the company’s fulfillment center in Chino, California.  The jury found that by requiring class members to complete a mandatory security check prior to leaving the facility, Wal-Mart discouraged them from leaving the premises for meal breaks, failing to comply with its obligation to provide class members with required meal breaks.  The verdict – which Wal-Mart may well appeal – provides guidance to employers doing business in California.


In the lawsuit, the plaintiffs alleged that the company violated California law by, among other things: (i) requiring class members to complete a mandatory security check when leaving the facility, which allegedly infringed on their 30-minute meal periods (the “Meal Period Interruption Theory”), and discouraged them from leaving the premises during meal breaks (the “Meal Period Discouragement Theory”); (ii) failing to compensate class members for time spent walking to the security checkpoint, waiting in line, and passing through security, which allegedly resulted in unpaid wages and overtime (the “Off-The-Clock Theory”); (iii) failing to properly pay overtime to class members who worked alternative workweek schedules; (iv) failing to pay all wages due upon separation of employment; and (v) failing to provide accurate wage statements.

The Court certified several subclasses associated with these claims in August 2018.  However, in March 2019, the Court decertified subclasses associated with the plaintiffs’ Meal Period Interruption and Off-The-Clock Theories.

Both sides unsuccessfully moved for partial summary judgment prior to trial.  In denying the portion of Wal-Mart’s motion that addressed the plaintiffs’ Meal Period Discouragement Theory, the Court rejected the notion that the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), prohibits “employers only from preventing employees from taking a meal break.”  Instead, the Court held that “California law imposes an affirmative obligation on employers to provide employees with meal breaks.”  The Court further found that Wal-Mart’s mandatory security check “arguably ‘impedes or discourages’ associates from taking an ‘uninterrupted 30-minute break’ because employees have only two options: leave the premises and go through the security check even though the security check may eat up some part of their meal break or stay inside the facility.”  The parties proceeded to trial on this issue, and the other surviving claims, on April 3, 2019.

The Verdict

The jury returned its verdict on April 12, 2019.  Although the jury found that Wal-Mart had satisfied its obligations with respect to paying overtime to class members on alternative workweek schedules, it awarded more than $6 million to the class in meal break premiums pursuant to the plaintiffs’ Meal Period Discouragement Theory.  The jury found that by requiring class members to complete the mandatory security check prior to leaving the facility, which discouraged them from leaving the premises for lunch, Wal-Mart failed to meet its obligation to provide class members with required meal breaks.


Unless the verdict is overturned on appeal, as it may be, this verdict sheds light on the scope of an employer’s obligation to “provide” meal breaks under Brinker, and on how juries might apply the law to unique fact patterns, including those involving security checks and other practices that could potentially dissuade employees from leaving their worksite for meal periods.  The award also serves as a reminder to employers with operations in California to take a holistic approach when evaluating compliance with wage and hour laws.  Even practices that might appear to have little or no bearing on an employee’s working hours, compensation, or break time may indirectly create significant exposure under the law.

102 Million Dollar Verdict for Wage Statement Violation!

June 10, 2019

While it may be true that employees rarely even look at their wage statements, there is one group of persons who certainly do – plaintiffs’ lawyers.  Or, more precisely, California plaintiffs’ lawyers.

And after a stunning $102 million award against Wal-Mart for wage statements that the court concluded did not fully comply with California’s onerous wage statement laws, California plaintiffs’ lawyers are likely to look at their clients’ wage statements even more closely – and to file even more class action lawsuits alleging that employers’ wage statements failed to dot every “I” and cross every “T.”

In the case known as Robert Magadia v. Wal-Mart Associates, Inc., pending in the United States District Court for the Northern District of California, the named plaintiffs brought a variety of wage-hour claims, including alleging that Wal-Mart’s California employees were not provided proper compensation for missed meal periods and did not receive compliant wage statements.

A three-day bench trial was conducted in late 2018.  And a little more than 6 months later, Hon. Lucy Koh issued her findings, awarding nearly $102 million to Wal-Mart employees.

The overwhelming majority of the award was for wage statements that Judge Koh concluded did not comply in full with California Labor Code section 226 – approximately $48 million in statutory damages and $54 million in penalties under the Private Attorneys General Act (“PAGA”).

Judge Koh’s concern was that Wal-Mart’s wage statements identified a lump sum for additional overtime that individuals received as a result of bonuses – identified as “OVERTIME/INCT” — without breaking down how that sum was calculated.

The award is almost certain to be appealed, and given the dearth of law on the issue, there is reason to believe the decision could in fact be overturned by the Ninth Circuit.

But the award itself will be enough to encourage employees and their counsel to closely scrutinize wage statements to determine if there are any possible omissions on which a class action could be based.

And for that reason alone employers with operations in California would be wise to review their wage statements closely to ensure that they comply in full with Labor Code section 226.

Note: PAGA is currently being challenged in the courts. It is a system that is extremely unfair to employers. I will keep you posted.

Investigation of Discrimination Allegations Can Save You!

June 3, 2019

The following facts and case result is an example of how a thorough internal investigation saved an employer from an adverse court decision.

The actual facts are simple enough. A bank fired two female employees for violating its vault-access policy. In turn, they filed a sex discrimination based on their allegation that three male employees had violated the same policy and had only received disciplinary action based on performance.

At first glance this would appear to be discrimination however, the two fired female employees were caught on video violating the policy and admitted to their misdeeds. The action of the three men was not as clear. Two denied it, and there was no video surveillance to prove otherwise. And the third admitted to the misconduct but claimed mitigation because a supervisor had bullied him into it. One might argue that the three men had figured out how to avoid their terminations. Let’s take a closer look.

The employer was able to convince the court that its thorough investigation into all of the allegations by the two women (before they were fired) was a fair process that supported their actions.

According to the employer, and supported by documentation, the extensive internal investigation, which included employee interviews and review of two months of cash-vault security-video.… the employer had an “honest belief” that the factual differences between the women and the two men who were not seen on video and did not admit to violating the dual-control policy and the one male employee who did violate the policy under non-pre-textual mitigating circumstances, justified their disciplinary decisions. Because there are no disputes of material fact as to the employer’s “honest belief,” the district court’s grant of summary judgment was proper.

The results of this case is a great reminder of the importance of thoroughness when investigating internal complaints of discrimination. The “honest belief rule” is one of most effective shields available to employers in discrimination cases. It means that as long as the employer has an “honest belief” in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pre-textual simply because, in reality, it is incorrect.

Still, if you want to be able to argue that your honest belief justifies your decision, you better be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence developed in a thorough investigation, is best. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.



Is the Use of Profanity Considered Workplace Harassment?

May 27, 2019

NOTE: The following has hard hitting explicit language being used by the court and some may find the content offensive. STOP now if you feel such language may offend you!

 Arguably, the “context” of the profanity may make a difference. Thanks to the Game of Thrones” it would appear more people are becoming more comfortable openly using generally considered highly offensive and taboo words. Employers need to react swiftly and decisively despite the popularity of the series.

The courts have addressed this issue in the past. In Reeves v. C.H. Robinson Worldwide, the issue was decided if vulgar language, to which all employees (male and female) are equally exposed, is actionable as sexual harassment.

The court made a clear distinction between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and, the granddaddy of them all, cunt (unlawful harassment).

The context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate. …

“Words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. … It is enough to hear co-workers on a daily basis refer to female colleagues as … “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.” …”

“Cunt,” is the essence of a gender-specific slur. …

The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it.

Therefore while general vulgarities are not typically actionable as harassment, severe or pervasive gender-specific words or phrases are actionable even if the words are not specifically directed at one employee, but are merely generally used in the workplace. The aforementioned “c-word” is the perfect example.

The takeaway for employers? Words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and ignore the complaint. Such language should, at a minimum, be considered unprofessional and a violation of company policy.

Reminder: EEOC Pay Data Due by May 31, 2019

May 20, 2019

Employers with 100 or more employees, and federal contractors with 50 or more employees, historically have been required to file annual Employer Information Reports (“EEO-1 Reports”) disclosing their number of employees by job category, race, and sex.  In 2016, the Obama administration’s EEOC expanded the required EEO-1 reporting data to include pay and hours worked data.  The intention of this expanded reporting requirement was to help the agency identify discriminatory pay gaps.  Under this expanded rule, covered employers would have been required to submit the pay data by March 31, 2018.  However, in 2017, the Trump administration EEOC abandoned the expanded EEO-1 reporting requirement in favor of simply continuing existing EEO-1 reporting requirements.  Advocacy groups, including the National Women’s Law Center, then sued the EEOC and OMB in an effort to reinstate the pay data reporting rule.  In a surprising move, a federal district court judge in Washington, D.C. issued a ruling last night agreeing with the National Women’s Law Center that the government’s elimination of the pay data reporting rule was unlawful.  In short, the judge held that the government had to have a “reasonable explanation” for changing course on the rule and that they had failed to present one.  The judge’s remedy was to vacate the government’s action in rescinding the rule, thereby effectively reinstating the EEO-1 pay data reporting requirement.  Employers would have had only until March 31, 2019 to file their expanded annual EEO-1 reports, but the deadline previously was extended to May 31, 2019 as a result of the government shutdown.  Following the court ruling that reinstated the reporting requirement, the EEOC pronounced that, in accordance with the court ruling, employers will be required to submit pay data (Component 2 data) for the years 2017 and 2018 by September 30, 2019.  (Historically required reporting information (Component 1 data) on the number of employees by job category, race, and sex remains due May 31, 2019).

The EEOC’s action does not mean that the agency agrees with the court ruling; rather, the EEOC was ordered by the court to issue compliance deadlines for the reinstated reporting rule and that’s what it did.  Meanwhile, on Friday, the EEOC appealed the court’s ruling.  It is expected that the EEOC will file a motion with the appellate court seeking a stay of the ruling pending resolution of the appeal.  However, there currently is not a stay and the September 30, 2019 pay data reporting deadline remains in effect.  This means that large employers need to start (if they have not done so already) gathering the pay data needed to be in compliance with the reporting rule.  We will keep you posted of developments on the appellate front, particularly if a stay of the reporting rule is issued (which would mean that employers need not comply with the pay data reporting rule until the EEOC’s appeal is resolved).