New Case out of the Eleventh Circuit Creates New Class of Employees Protected by the FMLA

Recently, the Eleventh Circuit held that the Family Medical Leave Act (“FMLA”) not only protects employees who are currently eligible for FMAL coverage, but it also protects employees who will likely be eligible at the time the requested leave would take place.

As you may know, the FMLA protects employees who have worked for their employers for at least twelve months and at least 1,250 hours during the preceding twelve months.  The FMLA also only covers employees who have had a “triggering event,” such as giving birth to a child, .

The Plaintiff in Pereda v. Brookdale Senior Living Communities, Inc. had only worked for her employer for a short time when she advised them that she was pregnant and would be requesting leave under the FMLA.  Her employer discharged her shortly thereafter, about eleven months after hiring her.  The Plaintiff would have been eligible for FMLA coverage by the time she gave birth.  However, the fact remained that she was ineligible to receive coverage under the FMLA at the time of her discharge because she had not worked for this employer for a minimum of twelve months.

The Eleventh Circuit decided that employees who are not yet eligible for FMLA coverage could bring a lawsuit if their employer discharged them as a way to avoid giving them a leave of absence once the employee does become eligible for FMLA coverage.  The court reasoned that “[w]ithout protecting against preeligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.”

The court wrote that “[o]ur decision today simply means that pre-eligible discussion of post eligible FMLA leave is protected activity under the FMLA.”  Yet, the decision really creates two classes of individuals covered under the FMLA:  those currently eligible, and those who are not eligible but will become eligible in the future when the requested leave is to take place.  The Eleventh Circuit has in effect broadened FMLA coverage.

It is important to remember that decisions from one Federal Circuit do not become primary authority (i.e., the law) in other Federal Circuits.  However, this recent case may be good indication as to where the courts are going on this issue.  Caution should be taken when considering whether to discharge an employee who may become FMLA eligible in the near future.

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EEOC Compliance in Ohio

Dave Andrews will be presenting on issues of handling discipline, counseling, and terminations at the upcoming EEOC Compliance in Ohio seminar on February 8, 2012 at the Holiday Inn Akron West.  Among other things, Dave will discuss constructive counseling, difficult employment situations and dealing with employee conflicts, documentation techniques, handling terminations, and common mistakes made by employers.

Other presenters will be discussing EEO laws, class action law suits, employment policies and handbooks, handling harassment investigations, responding to EEOC and OCRC charges of discrimination, and disability discrimination and medical leave.  This seminar will count as 6.50 hours towards HR Certification Institute and 1.0 hours toward HRPD.

If you’re interested, please register at www.lorman.com/ID384267.

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Andrews & Wyatt Wins Religious Discrimination Lawsuit in Federal Court for Ohio Employer

In a test of the recently created “cat’s paw” theory, David Andrews and Jerry Cline of Andrews & Wyatt successfully defended their clients against a former employee who alleged she was discriminated against for her religion.

First, some background on the case. The plaintiff, Tomeka, moved into a property owned by Andrews & Wyatt’s client and managed by Mildred, the defendants. Shortly after she moved in, Tomeka was invited to attend a bible study by Mildred, who was a Jehovah’s Witness. After attending the bible study, Tomeka was offered an assistant rental agent position by Mildred, which she accepted. About six months later, Tomeka informed Mildred that she no longer wanted to be a part of the bible study. During this time, the occupancy rate at the complexes where Tomeka was working had dropped. Mildred had one of the other company employees pretend to be a potential renter. She was allegedly told by Tomeka that there were no units available in one complex and that units in the other complex could not be shown on Saturday, neither of which was true. Mildred notified the property manager for the company about the situation, and Tomeka was terminated.

Tomeka filed a charge of religious discrimination with the Equal Employment Opportunity Commission (EEOC) and was granted the right to file a lawsuit. She filed a suit based on the “cat’s paw” theory against Mildred and the company in the United States District Court, Northern District of Ohio, in May 2010.

The “cat’s paw” theory gets its name from an old French fable involving a cat and a monkey. In the tale, a monkey convinces a cat to reach into a fire for some roasted chestnuts. The cat’s paw gets burned and the monkey gets the chestnuts. In this case, the plaintiff alleged that Mildred wanted to have her fired because of her religious beliefs but did not have the authority to terminate anyone, so she fabricated some negative information and provided it to the property manager who then fired her.

Based on the facts and the technologically-savvy presentations by Mr. Andrews and Mr. Cline during the trial, the jury returned a unanimous verdict for the company and Mildred. “We are thrilled that we were able to get this verdict for the company. It was important for this company to send the message that they will not give in when they have done nothing wrong,” said trial attorney David Andrews.

To avoid falling prey to the “cat’s paw” theory, always confirm that there is an actual performance issue before terminating an employee, not just another employee with a grudge. If your company finds itself in this position, or if you have any other employment questions, please contact an Ohio employment attorney at Andrews & Wyatt.

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The High School Diploma Requirement: Is It “Job-Related” and “Consistent With Business Necessity”?

Recently, on December 1, 2011, the Federal Equal Employment Opportunity Commission (EEOC) published an “informal discussion letter” regarding the Americans with Disabilities Act (ADA) and job applicants with learning disabilities. Specifically, an employer asked the EEOC whether the ADA prohibits employers from requiring job applicants to possess a high school diploma if a learning disability prevented that applicant from obtaining a high school diploma. The EEOC responded that such a requirement would violate the ADA if that requirement “screens out an individual or class of individuals on the basis of a [learning] disability” unless the diploma is “job related for the position in question and consistent with business necessity.” The EEOC stated that an employer “will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.” In other words, if you require your janitor to have a high school diploma, you may be in violation of federal law.

Moreover, even if a diploma is job related and consistent with business necessity, the EEOC requires that employers determine “whether a particular applicant whose learning disability prevents him from meeting [the diploma requirement] can perform the essential functions of the job, with or without a reasonable accommodation.” The EEOC then stated:

“[The employer] may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the [diploma] standard, the employer may not use the high school diploma requirement to exclude the applicant.”

Of course, this “informal discussion letter” does not carry the force of law, but it does establish the EEOC’s “enforcement position” which can detrimentally affect employers during the administrative phase of an ADA claim. It also does not foreclose the possibility that federal courts may also agree with the EEOC’s enforcement position.

For instance, in the seminal case of Griggs v. Duke Power Co. (1971), the Supreme Court ruled that the requirement of a high school diploma did not show “a demonstrable relationship to successful performance of the jobs for which it was used” and had an impermissible disparate impact on African-American applicants and employees in violation of Title VII of the Civil Rights Act of 1964. It appears that the EEOC’s enforcement position applies this same principal under the ADA.

Some practical advice – review your job descriptions and determine if a high school diploma is actually necessary and related to the position in question. If it is not, eliminate this requirement.

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New NLRB Election Rule

The National Labor Relation Board recently published its “final rule” regarding union election procedures. The new rule amends already established union election procedures. In essence, the Board’s new rule for election procedures limits an employer’s time to inform its employees on the issues surrounding union elections as well as limiting a party’s ability to present issues to the Board before a union election takes place. Here are some of the more important changes that have been made to the NLRB’s rules for union elections:

• The Act now explicitly states that the purpose of a pre-election hearing is to determine whether a question of representation exists. This means that a pre-election hearing will not be provided to a party on any issue other than one that deals with whether a union has enough supporters to be included as a candidate in a union election.
• Hearing officers that preside over a pre-election hearing now have seemingly limitless authority to decide what evidence can be introduced at a hearing.
• An employer’s request to have the Board review a regional director’s decision may be put off until after the election actually takes place.
• The old rule contained a “suggestion” that a regional director should not schedule an election until twenty-five days after the direction of election. The twenty-five day period would allow the Board to rule on issues before the election would take place. The suggestion has been erased from the new rule.

The changes to the Board’s election procedure can be viewed in their entirety on the NLRB’s website by following the link provided below:

https://www.nlrb.gov/sites/default/files/documents/3253/compare_of_final_amendments_to_current_relevant_cfr_web_version.pdf.

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