"Leave Me Alone, I'm Dealing With A Family Situation" - Insufficient To Trigger FMLA, August 26, 2002
When an employee requests leave under the Family and Medical Leave Act, he is obligated to provide his employer with sufficient information to determine whether the reason qualifies under the Act. Joseph McCarron's failure to understand that concept resulted in his termination.
Unbeknownst to his employer, McCarron, an account executive for Yellow Book, suffered from bipolar disorder. A year before his termination, McCarron was granted FMLA leave based on a lie that he needed time off for a reaction of his diet pills and his "maintenance medication." The truth was, he was hospitalized for a bipolar episode.
A year later, McCarron called into work requesting family leave to deal with a "family situation." When the company called to get a better understanding of the situation, McCarron said to "leave him alone" until he took care of the "family situation." His manager called back shortly later and left a message that she needed to discuss the family problem to determine if it qualified under the FMLA, and reminded him that an unauthorized 3-day leave would be deemed a resignation. McCarron was terminated for an unauthorized three-day leave.
McCarron's "family situation" was a second hospitalization for his bipolar disorder. When he was released three weeks later, he tried contacting his employer to submit the required FMLA forms to return to work. However, this time, the company reversed the tables on him, saying to leave it alone because he was no longer an employee.
In his argument opposing summary judgment, McCarron stated that he told his manager that he was experiencing "memory problems" and that his leave was "personal" to care for a parent, and this was sufficient to trigger the FMLA. The court said that, without more, this information was insufficient for the company to determine whether the leave request qualified under the FMLA. Moreover, the company's attempts to find out more information were "met by Plaintiff's refusals to provide any such information." The court granted summary judgment to the employer. See McCarron v. British Telecom, No. 00-CV-6123, 2002 WL 1832843 (E.D. Pa., Aug. 7, 2002).
OSHA News, August 22, 2002
The Bush Administration has ordered OSHA, as well as other regulatory agencies, to assess more carefully the effect of its rules on small businesses and other small organizations. This executive order requires OSHA and the other agencies to adopt written procedures and policies that take into account how regulations will affect small businesses.
The state agency in Alaska responsible for enforcing federal and state safety and health laws has issued a citation against a mental hospital under the General Duty Clause. The General Duty Clause requires employers to provide a workplace free of recognized hazards likely to cause serious injury of death. The mental hospital, it is alleged, failed to take steps to protect employees against workplace violence in violation of the General Duty obligation. The hospital did not contest the citations.
OSHA announced in mid-August that it would review the trenching and excavation rules to determine if changes were necessary, especially in light of the new executive order requiring OSHA to consider small business impact. The excavation rules were revised in 1990, which was the first revision since 1971. Trenching violations are among the most serious handled by OSHA, frequently resulting from a cave in.
Arthur Andersen Woes Continue, August 22, 2002
A federal district court has ruled that the accounting firm may have violated the Workers Adjustment and Retraining Act (WARN) when it failed to give 60-days notice of a mass layoff to two part-time employees. Andersen had given notice to the full-time workers affected, but excluded part-time employees. Part-time employees do not have to be counted when deciding if WARN Act notices are required, but the court ruled that once the layoff is subject to WARN, part-time employees must be notified as well. Roquet v. Arthur Andersen LLP, No. 02 C 2689 (N.D. Ill., August 14, 2001).
BNA Reports Sex Discrimination Is The Trend, August 22, 2002
The Bureau of National Affairs is reporting that in class actions recently instituted by the EEOC, sex discrimination cases account for over half the total. Race discrimination cases, on the other hand, make up a mere one-quarter of the total. It may be a good time for employers to look at all their employment practices to insure that no protected group is being subjected to discrimination.
Social Security Number Causes Religious Insecurity, August 19, 2002
by Thomas A. Bowden
Religious accommodation in the workplace can take many forms, some of them strange. In a recent case, the U.S. Navy discovered that the duty to accommodate may extend to something as commonplace as a sailor's social security number.
David Carmichael, who had accumulated 16 years of service, decided on religious grounds that the nine-digit number assigned to him by the U.S. government for tax purposes qualified as the "Number of the Beast" according to Chapter 13 of Revelations. He asked that the Navy, as a religious accommodation, assign some other number to him for identification purposes (he suggested "000-00-0000"). The Navy refused.
When it came time to re-enlist, Carmichael refused for religious reasons to sign the enlistment form containing his social security number. The Navy treated that decision as a voluntary separation. Carmichael then sued for back pay and reinstatement. After a federal court dismissed his claim, a court of appeals reversed and sent the matter back to the trial court for further proceedings.
Every employer who denies a religious accommodation, no matter how seemingly trivial, runs the risk of defending a lawsuit for religious discrimination. Carmichael v. United States, Fed. Cir. No. 015034, August 12, 2002.
Equal Opportunity Offender Not Sexual Harasser, August 12, 2002
A physically and verbally aggressive supervisor known as "Military Mary" Quinones set her romantic sights on subordinate Travis Walker. Mary would inappropriately rub Walker's legs, thighs, neck and hair and would position herself in a manner to reveal her undergarments. Although Walker told Mary that he was gay and not interested in her romantically, she replied that she could "change him" and discussed other sexual encounters. When Walker continued to reject her advances, she threw paper at him, broke his telephone headset, threatened to send him home, glared at him and continued to stalk him.
Mary was also known to scream and threaten all of her subordinates and was told to modify her behavior. Despite the warning, Mary's stalking continued even after Walker transferred to a different department, which caused Walker to experience stomach pain, anxiety and depression. He resigned eight months after the transfer and filed a charge with the EEOC alleging, among other things, sexual harassment.
The Court found that Walker failed to present sufficient evidence for a jury to find that Mary's conduct was severe or pervasive enough to constitute harassment. "There is no question that Walker has presented evidence that [Mary] was the type of supervisor for whom no employee wanted to work, that she acted in a juvenile and irrational manner on occasion, and that she was at best inconsiderate and at worst cruel in her treatment of those individuals under her supervision," the judge wrote. Nevertheless, the court concluded that there was no evidence suggesting that Mary physically threatened or humiliated Walker because her "conduct was merely even-handedly offensive."
What's Your Salary? Mine is . . . , August 6, 2002
Employers dread it. Companies warn against it. But, despite the warnings, it is inevitable - employees compare salaries. How employers react can determine whether they will be justifying their pay structure to an employee or a judge.
Sharron Grant-Burton was fired, in part, for comparing the fairness of her company's bonus pay structure with co-workers. She sued, claiming wrongful discharge in violation of public policy. The California Court of Appeal held that the National Labor Relations Act (NLRA) and California labor law protect an employee's right to discuss compensation with co-workers. The Court stated, "even though Grant-Burton and [her co-workers] may not have been members of a union or governed by a collective bargaining agreement, their concerted activity - participating in a group discussion about the fairness of their compensation - was protected under the NLRA." Specifically, the judge noted, California Labor Code §232 protects workers' rights to discuss wages. See Grant-Burton v. Covenant Care Inc., No. B151342 (Cal. Ct. App. July 10, 2002).
If it looks like retaliation, it will get you to trial on an FMLA claim, August 5, 2002
Bruce M. Luchansky
An Enterprise Rent-a-Car employee requested two months of FMLA leave. Six days later, she was fired for misuse of a company gas card. Coincidence?
Many facts suggest that it was. For example, the Vice President who made the decision to discharge the employee claims that he did not even know she had requested FMLA leave. It did not matter. According to a federal trial court in Illinois, the timing of the discharge created an inference that the discharge was retaliatory, and that was enough to defeat the employer's motion for summary judgment. The employee gets to take her claims to trial. Carter v. Enterprise Rent-A-Car Co., No. 01 CV 4494 (N.D. Ill., 7/24/02).
Matchmakers Beware - - Leave Co-Workers Alone, August 2, 2002
Matchmakers may want to think twice about setting up their co-workers. In California, Chubb & Son found itself involved in the middle of a matchmaking scheme that went sour. Female employee A set up her female co-worker B with male co-worker C in Colorado. At first B & C hit it off. B transferred to Colorado to continue her relationship with C. But then, as often happens, the relationship deteriorated. What could not be predicted was B's reaction. B became confrontational and began making threats to A saying she would "get" her for making the bad match, and threatening suicide.
When Chubb & Son learned of the threats, it issued B a warning that she would be fired if she continued to contact or involve other employees in her personal problems. She was fired after leaving messages threatening A and her daughter.
Chubb & Son also sought an injunction to restrict B's contact with any Chubb employee. The California Court of Appeal granted several restraining orders against the former employee, relying on California's Workplace Violence Safety Act. The Act allows employers to seek a temporary restraining order on behalf of threatened employees if there is evidence that the threat could be carried out. See Chubb & Son v. McDermott, No. A094658 (Cal. Ct. App. June 3, 2002) (unpublished).
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