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| HR and the Law in the News November 2011, Volume 10, Issue 11 |
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| HR and the Law in the News November 2011, Volume 10, Issue 11 |
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Timing is Everything If you have employed at least 50 employees for each working day in each of 20 or more calendar work weeks in the current or preceding calendar year then you are likely an employer covered under the federal Family and Medical Leave Act (FMLA). You can read last month's newsletter for some statistics on FMLA complaints filed with the U.S. Department of Labor. More recently however, a case brought to light a reminder of how the timing of an event can create a perception, which can lead to a presumption, which can to litigation alleging a violation of an employee's FMLA rights. The 7th U.S. Circuit Court of Appeals recently overturned the lower court's ruling in favor of the employer. Consider the following. A company is planning a reduction in force (RIF). It has already decided to eliminate one position in the Marketing Department, Communications Campaign Manager. On October 28th, the Chief Marketing Officer asks the Department Head if a second position should be abolished, the Director of Leadership Communications. The Department Head replied that cutting an additional position would not be in the company's best interest and would be a bad idea. Then, on November 20th, the employee who held the position of Director of Leadership Communications informed the Department Head that he would be having knee replacement surgery on January 12th and he would be taking four to six weeks of FMLA leave as a result and applying for short-term disability benefits. Ten days later, on November 30th the Department Head wrote to the Marketing Officer that he was now of the mind that they should eliminate the Director position and retain the Manager position. He apologized for his "11th hour change of heart" and explained, "The team is already preparing for [the Director's] short-term leave in January, so his departure should not have any immediate negative impact." On Thursday, December 4th the Department Head and a human resources representative met with the Director and informed him that his position was being abolished and his last day of work would be January 4th (eight days before his surgery was scheduled). The employee/Director then filed a lawsuit alleging FMLA interference and retaliation. The court agreed that the timing of the decision and action gave rise to a reasonable inference that the employee's need for FMLA leave was at least a motivating factor in the Department Head's change of heart. And here's another point to consider -- the court also discussed the employer's documentation. After the employer received notice that the Director had filed a complaint the HR representative and manager, under the direction of legal counsel, typed up the handwritten notes they had created, back dated the typed notes and shredded their original notes. The court noted, "The troubling fact that [the employer] shredded...handwritten notes after learning of potential litigation also could weigh in favor of [the plaintiff]. A jury might conclude from all this that [the employer] had been trying to create a paper trail." Put it all together and the court overturned the lower court's finding in favor of the employer and held, "...a reasonable jury could find in [plaintiff's] favor." Shaffer v. American Medical Association. Want more info on FMLA administration? If you missed FiveL Company's October 26th webcast, "FMLA FAQ's" you can view the archived version for just $25 p.p. It is pre-approved by HRCI for 1.0 general credit. Just click here and scroll down to "Archived Webcasts." Hot Hits!! Education Corner Upcoming Public Speaking Engagements (presented by Ms. Walters) Visit the calendar of events for a full listing. Tuesday, November 15th, morning keynote presentation, "When Silence is Not Golden: Legislation through Regulation?" during CHRA's annual Employment Law, Legislative & Regulatory conference, Phoenix, MD - SOLD OUT! Upcoming Client Training Programs "Maintaining an Inclusive Workplace" (4 sessions - one CA AB 1825 compliant) "HR & the Law for Managers" (2 sessions; 2 clients) NEXT WEBCAST: November 23rd, 10:00 - 11:00 a.m. EST "2011 Employment Law Update: The Year in Review" Join this annual webcast as we review highlights from the year including news and issues not covered in the preceding ten webcasts of 2011! We will review the "highs" and the "lows" in federal and state employment legislation, regulations and legal updates. THIS WEBCAST IS PRE-APPROVED BY HRCI FOR 1.0 GENERAL CREDIT HOUR. Click here to register.
About that Poster...Update #2! This article in last month's edition read, "I suspect most of you reading this newsletter have already read, heard or perhaps received my "tweet" regarding the new labor poster required by the National Labor Relations Act. The final regulation requires most every private sector employer to post the new notice by November 14th, which informs employees of their right to organize and form a union." Well, the implementation date has been postponed until January 31, 2012. In the meantime, stay tuned for progress reports on the National Association of Manufacturers' lawsuit to block implementation of the new posting requirement. So what now? In the interim you can:
Don't Tell, No Tell I still find it fairly common for employers to have a written policy or a practice that prohibits or at least directs employees that they are not to discuss their wages with one another. If your company has such a policy or practice you should reconsider it. The September edition of this newsletter provided the basics of employee activities that are protected by the National Labor Relations Act (NLRA). If you read that article then the following case will not surprise you. The employer in this case employed about 30 employees; they were at-will employees and not represented by a union. From 2008 to 2009 the Company lost some large clients, was having financial challenges and considering ways to reduce personnel costs. Some members of the management team subsequently met with four administrative staff and informed them that their hours would be reduced and they would be furloughed. They were advised to not discuss this furlough with any other employees until the management team had a chance to meet with everyone and explain the reduction. When the management team learned that one of the administrative staff expressed her concerns to another employee they terminated her. One management team member then sent all staff an email that read, in part, "If anything is concerning you, please talk with a Management employee not each other. This rumor mill really needs to stop in its tracks; the dramatics need to cease." The NLRB held that not only was the termination of the employee a violation of the NLRA but so was the email. "By disseminating an email to employees...that discouraged employees from talking to each other about wages, hours and terms and conditions of employment, the [employer] violated Section 8(a)(1) of the Act." The TM Group and Grover. Other Tips? If you missed FiveL Company's September 28th webcast "Workplace Harassment, Bullying, Griping & Social Media" you can click here to register and learn more about other recent NLRB decisions addressing the NLRA, employees' rights and social media. This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly. |
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