Troutman Pepper Locke's Labor + Employment Group

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Employers often wonder about how best to deal with employees with disabilities. Even in this enlightened, post-ADAAA (Americans with Disabilities Act Amendments Act of 2008) society, there are still employers that are afraid to hire applicants or worry about keeping employees who they learn have some type of physical or mental impairment that constitutes a disability.

However, according to an article published on Diversityinc.com, How Recruiting People With Disabilities Solved Toyota’s Costly Problem, when Toyota Motor North America needed to add a production process that would require additional employees to implement, the company decided to utilize its employees with known developmental disabilities to handle the project. 

When an employee takes FMLA leave there is usually nothing to write home about.  The employee requests leave properly, provides the required medical certification in a timely fashion, and returns to work when she says she will.  All is well.

But what do you do if an employee takes intermittent FMLA leave before a long weekend and then shows up Monday with a nice new tan?  What if an employee takes leave to care for a sick family member, but the workplace begins buzzing that he was really at the big game?  Many employers experience, or at least suspect, FMLA abuse.  When you have a case of potential abuse on your hands, however, you must tread carefully. 

Back in March, we warned you that for-profit businesses using the services of unpaid interns were at risk due to the increased scrutiny being given to whether such unpaid internships violate federal and state wage and hour law.

Since then, there have been several developments (two by a serial plaintiff) that have only increased the risks faced by for-profit businesses using the services of unpaid interns, including, but not limited to, the fact that:

  • Plaintiffs in a lawsuit in federal court in New York (Eric Glatt, et al. v. Fox Searchlight Pictures, Inc.) have expressed their intention to add claims on behalf of unpaid interns who worked for News Corp.’s Fox Entertainment Group unit;

Employers in the Atlanta area may have heard about this story of a school teacher seeking additional paid time off to care for his wife, who is suffering from a rare bacterial infection that required the amputation of her hands and feet.  His co-workers have tried to come to his aid:  other teachers at the school have offered to “donate” some of their accrued paid time off (“PTO”) to the teacher, who has already exhausted all of his PTO caring for his wife.  However, the school board rejected those offers, citing a policy that prohibits employees from transferring PTO.  Here is how a school board spokesperson explained the situation to a local newspaper:

Last week a California Appeals court ruled that a decision not to renew an expiring employment contract cannot form the basis of a wrongful termination case. Nicollette Sheridan, former co-star of the one-time hit television drama “Desperate Housewives,” lost her wrongful termination claim against the show, the network, and its creators when the court ruled that she was not “fired, discharged or terminated.” Instead, the network exercised its option not to renew her employment contract.

As my colleague considered several months ago, organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to counter the prejudices many have against obese individuals.  As part of its efforts, NAAFA is working to establish federal and state laws making obesity a protected class.  To date, however, these efforts have only resulted in one state (Michigan) and a handful of cities passing laws making weight-based discrimination illegal.

While efforts to make obesity a protected class have not been especially successful, there has, however, been more movement towards the greater recognition of obesity as a disability under the Americans with Disabilities Act (ADA).   My colleague previously noted that a federal district court in Louisiana had found that an employee who weighed 527 pounds at the time of her termination was “an individual with a disability” as defined under the ADA.

You are the HR manager and have just received an FMLA leave request from an employee.  At almost exactly the same time, the employee’s supervisor comes to you wanting to terminate the employee because of performance issues.  You know that FMLA leave does not prohibit an employer from taking action based on an unrelated, legitimate business reason, so you review the supervisor’s information (which supports termination) and sign off on the decision.

Of course, the employee then sues the company for violating the FMLA, claiming the termination was retaliation for her leave request.  Later, you learn that the supervisor’s information that justified termination was not true or not supported by the facts.  You (and others) were duped by the supervisor to permit the termination!  It may be cold comfort for the company that, at least, this isn’t a willful violation of the FMLA, rendering the company liable for double damages, also known as liquidated damages.

Or is it?

Wage and hour lawsuits are difficult for many reasons – not the least of which is because the Fair Labor Standards Act (“FLSA”)  is different than most other employment laws.  For instance, the FLSA puts the burden on employers – not the employee – to prove important aspects of a violation.  Specifically, the FLSA puts the burden on employers to prove that employees are correctly classified as “exempt” from the FLSA’s overtime standards.  Likewise, if an employee is found to have been misclassified, then employers also have the burden to show how many overtime hours the employee really worked (if the employer disputes the employee’s calculation of overtime hours demanded).  

The National Labor Relations Board is taking an increasingly hard look at the language in employer handbooks, as shown by two recent cases from the NLRB’s Arizona Region.  Recently, Hyatt Hotels Corporation agreed to settle an unfair labor practice charge that claimed a provision in the company’s employee handbook acknowledgment form was too broad.  The provision stated that Hyatt’s at-will employment policy could not be changed except by a written agreement signed by the employee and particular executives.  Similarly, earlier this year an administrative law judge decided that a disclaimer in the handbook of an American Red Cross unit stating that the at-will employment relationship “cannot be amended, modified or altered in any way,” could be interpreted to interfere with employees’ rights to engage in group activity to try to change the policy.

So, why the sudden attention by the NLRB to employee handbook policies on employment “at-will”? 

HR professionals generally want to give wayward employees opportunities to do better. So, situations commonly arise where an employee who consistently violates work rules and demonstrates less than professional behavior is given multiple chances to improve. Inevitably, most of the time such an employee fails to fully improve and the time comes to let the employee go. And just as inevitably, when he is terminated the employee contends that he should not have been terminated and 1) seeks unemployment compensation, 2) files an EEOC charge, and/or 3) sues for discrimination, harassment, retaliation, and whatever else he can conjure up. Suddenly all of your good intentions are thrown back in your face, leaving you wishing you would have just fired the employee without giving him all those additional chances to try to improve.

In a recent case out of New Jersey, the employer learned a very tough lesson on the pitfalls of second chances.