Friday, March 20, 2020

Coronavirus / COVID-91 and employers with over 500 employees

Yesterday's post concerned the Families First Coronavirus Response Act (FFCRA), i.e, the paid leave bill that mandates employers with less than 500 employees provide some type of paid leave.  

But what about employers with 500 employees or more?

One thing to remember is that employers who have 500 or more employees are likely (depending on the number of employees at specific locations) already covered by FMLA.  So if they have someone who has tested positive or has symptoms of the Coronavirus – or has a close relative who has it and the employee needs to care for them, the employee likely has a “serious health condition” which would trigger FMLA leave and restoration rights.  

The Department of Labor is sadly non-committal on whether having Coronavirus symptoms or testing positive is FMLA covered.  The DOL issued a webpage on the issue a few days ago, https://www.dol.gov/agencies/whd/fmla/pandemic, but the page does not say whether testing positive or having COVID-19 symptoms is a serious health condition.  

The criteria for having a serious health condition are not all that high.  For conditions such as COVID-19 it can mean hospitalization or an incapacity for three days with “continuing treatment by a health care provider.” The latter is broadly defined to meant at least one in person visit to a doctor with a follow up.  But even here, there is an “extenuating circumstances” exception to the in person follow up visit requirement.  I would think the Coronavirus would unquestionably qualify as an “extenuating circumstance.”   In short, I would think an employer could and should designate the leave as FMLA covered and protected. 

But, to be clear, the DOL webpage also states that “[l]eave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.”  I'll assume this is correct (though I expect an impacted employee will at some point argue they are due FMLA for avoiding exposure).  So, unlike the FFCRA, the FMLA does not cover employees who need to stay home because a child’s school or day care is closed. Of course, if the child or close family member has a serious health condition, the leave would very likely then be FMLA covered.

Thursday, March 19, 2020

Paid Sick and FMLA Leave for the Coronavirus / COVID-19

While I'm told there are likely to be changes, my partners at Kramer Rayson LLP have put together a short summary of the paid leave provisions in the Families First Coronavirus Response Act (FFCRA).  I'll post what we've developed below.

As always, this is not legal advice and you should always consult qualified counsel before taking any action.

On March 18, 2020, Congress passed the Families First Coronavirus Response Act  (FFCRA). The president signed the bill the same evening. This new law addresses a number of topics related to Coronavirus such as funding for certain benefits, this  alert will focus on the FFCRA’s major impact on employers by requiring paid sick leave in light of the COVID-19 pandemic. This new law goes into effect on April 2, 2020, so employers should not delay in making plans to comply with new paid leave requirements.

FFCRA provides employees with paid sick leave through the use of two new laws: (1) the Emergency Family and Medical Leave Expansion Act and (2) the Emergency Paid Sick Leave Act. Additionally, the new law includes refundable tax credits for employers who are required to provide Emergency FMLA or Emergency Paid Sick Leave.

The Emergency Family and Medical Leave Expansion Act

Employers Covered: All government employers; and all employers with fewer than 500 employees. However, the Secretary of Labor may later exempt businesses with fewer than 50 employees when providing such leave “would jeopardize the viability of the business.” The Department of Labor is expected to issue regulations in the near future that will, among other things, clarify the process to request an exemption.

Employee Eligibility: Those who have been employed for at least 30 calendar days. Does the new law require those days to be consecutive? At this point, that is unclear.

Qualifying Reason: An employee who is unable to work (or telework) due to a need for leave to care for their child if the child’s school or place of care has been closed or the childcare provider is unavailable due to a “public health emergency.” “Public health emergency” has been defined as “an emergency with respect to COVID-19 declared by a federal, state or local authority.” Note: earlier versions of the FFCRA had additional qualifying reasons, but in the version that passed, this is the only qualifying reason.

Amount of Leave: 12 weeks, just like any other kind of FMLA.

Paid and Unpaid Leave: The first ten days of leave is unpaid. However, employees may elect to substitute an accrued vacation leave, personal leave, or sick leave during this ten-day period. After the initial ten-day period, the employer is required to provide ten weeks of paid leave, paid at two-thirds (2/3) of the employee’s regular rate of pay. The law limits the dollar amount of paid leave to $200 per day and $10,000 in the aggregate.

Notice Requirement: As much as is practicable for the employee.

Intermittent Leave: The law does not specifically mention intermittent leave.

Reinstatement Rights: The default FMLA rules apply. However, there is an exemption for businesses with less than 25 employees, if certain conditions are met.

Effective Date: April 2, 2020.

Expires: December 31, 2020.

The Emergency Paid Sick Leave Act

Employers Covered:
Once again, only government employers and companies with fewer than 500 employees. Businesses with fewer than 50 employees can request an exemption (same as above).
Employee Eligibility: All employees are immediately eligible (regardless of days of service).

Qualifying Reasons: The Emergency FMLA was limited in this regard. The Emergency Paid Sick Leave Act provides that employees may qualify for leave under several scenarios if the employee is unable to work (or telework):
  1. the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 
  3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 
  4. the employee is caring for an individual who is subject to quarantine or isolation order, or who has been advised to self-quarantine due to COVID-19; 
  5. the employee is caring for a son or daughter whose school or place of care is closed, or the childcare provider is unavailable, due to COVID-19 precautions; or
  6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Amount of Leave: Full-time employees are entitled to 80 hours (two weeks) of paid sick leave. Part-time employees are entitled to leave equaling the number of hours the employee works, on average, over a 2-week period.

Paid Leave: This depends on if the employee takes leave under the first three scenarios (1-3) or the last three scenarios (4-6). If the employee takes leave under scenarios 1-3, then the employee is to receive his or her regular rate of pay. This is limited to $511 per day and $5,110 in the aggregate.  If the employee takes leave under scenarios 4-6, then the employee is to receive 2/3 of his or her regular rate of pay. This is limited to $200 per day and $2,000 in the aggregate.

Employer Limitations: Employers cannot require employees to find a replacement or require employees to use “other paid leave provided by the employer” instead of the Emergency Paid Sick Leave. Presumably, this means the employee gets paid sick time under the new law in addition to any PTO he or she has already accrued.

Penalties for Violations: Same as a minimum wage violation under the Fair Labor Standards Act. This includes fines, imprisonment, damages to the employee amounting to double the unpaid wages and reasonable attorney fees and court costs.

Poster: Within 7 days, there should be a model poster available from the Department of Labor notifying employees of their rights under the Emergency Paid Sick Leave Act. Employers will be required to post that notice in a conspicuous place in the workplace.

Effective Date: April 2, 2020.

Expires: December 31, 2020

TAX CREDITS The new law provides a refundable payroll tax credit equal to 100 percent of qualified paid sick and family leave wages an employer pays for each calendar quarter. It also provides for tax credits for self-employed individuals, as well.

UNCERTAINTIES exist with the current law, such as:
  • What is the interplay between the two paid leave provisions?
  • How does intermittent leave play a part, if any, in this new law?
  • How is the process for seeking exemptions supposed to work? Who decides whether an employee is unable to work or telework?
  • If an employee is unable to work or telework because the employee is experiencing COVID-19 symptoms, can an employer designate that leave as a serious health condition under the FMLA?
  • How will the joint employer rules in the Fair Labor Standards Act apply to employers who have more than 500 employees?
We will be sure to keep you up to date as these regulations are implemented.

Again, please be sure to consult with your own counsel before taking any action.  We have tried to summarize key points in the Act but the situation is changing daily and your own situation is unique.

Wednesday, March 4, 2020

The honest-belief rule kicks in even when the reason for firing an employee turns out to be factually mistaken.

Most employment discrimination claims require the employee to prove that the employer's stated reasons for the adverse action are a pretext. By statute claims based on Tennessee discrimination and retaliation claims require employees “demonstrate that the reason given by the defendant was not the true reason for the challenged employment action and that he stated reason was a pretext for illegal discrimination or retaliation. Tenn. Code Ann. § 4-21-311(e); Tenn. Code Ann. § 50-1-304(g).

Courts define pretext to mean a "lie", more specifically, a lie designed to hide the real reason for a decision. In discrimination claims, the "real reason" needs to be discrimination, of course, so a lie alone won't suffice. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

What's hard for folks who are not familiar with employment law to understand is that showing the facts that led to an employee's termination were incorrect does not necessarily mean the employer lied. An employee must show "more than a dispute over the facts upon which the discharge was based." Braithwaite v. The Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). So, a factual dispute about whether the fired employee shoved a co-worker doesn't make the employer's stated reason pretextual. Same for when the employee denies having made the payroll data errors the employer cited as the basis for his termination. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) ("Majewski's assertion that he did not delete the payroll wrap is insufficient to call into question ADP's honest belief that he did.").

An employer's honest mistake can itself be a legitimate nonpretextual reason for firing an employee. Today's unpublished decision in Smith v. Towne Properties Asset Management Co. Inc. demonstrates this. Smith worked for Towne, an Ohio apartment management company. She lived in one of the apartments rent free. A co-worker accused Smith of theft in the form of not paying for gas, electricity and parking. Towne investigated, even talked to one of the prior owners (who had employed Smith before them) and asked if the prior owners had agreed to free utilities and parking for Smith (he said no). Shortly after Towne fired Smith, one of the other owners said she believed Smith was entitled to the free utilities and parking.

So, it turns out that Smith probably had not stolen utilities (at least not intentionally). She sued Towne under the ADA and FMLA. Towne won. It prevailed because while it was mistaken, its investigation was reasonably informed and established Towne honestly believed, at the time it made the decision, Smith had misappropriated utilities.

Smith argued Towne's mistake was too obvious to be unintentional, that is, if an employer's "mistakes in its investigation" are so "blatant," that can raise doubts about the honesty of the employer's reasons. But blatant mistakes are hard to prove, especially when the employer carefully documents the steps it took to investigate the employee's misconduct.

Here, Smith argued Towne made a blatant mistake by not talking to her before firing her. But it is settled precedent that an employer ordinarily does not have to interview an employee before a termination decision. Of course, there may be times it is a good idea to talk to an employee, this case shows why. On the other hand, in a theft investigation, giving an employee the opportunity to deny stealing is often a pointless exercise.

Towne did not reconsider its position when it learned there may be doubts about the reason why Smith wasn't paying for utilities. The court said this didn't matter because there was no evidence Smith ever asked for her job back after being fired. Had she, Towne might have had a more difficult time in the litigation. It didn't necessarily have to take her back if she had asked, but Towne would have needed to come up with a legitimate reason for the refusal that was based on more than its prior mistake.

Reading between the lines, there was more to this story than Towne being mistaken. Towne went with theft as a stated reason but Smith was apparently a manager, so Towne could have justified the decision on less sensational grounds. Employers can rightly expect managers to adhere to a higher standard. So when Smith asked Towne for a letter itemizing her compensation and the letter she received did not mention free utilities and parking, Towne could have justified later firing her for continuing to receive the "free" perks even if Smith believed she was entitled to them. As long as it treated nondisabled managers the same, Towne can expect managers to be proactive and forthright.

Employers don't always have to go with the most sensation reason for terminating an employee. Sometimes, particularly with a manager, going with the simplest explanation - we've lost trust in you - and explaining why - is better.

Friday, February 28, 2020

CA6 clarifies disparate treatment (similarly situated) Issues


One of the published CA6 decisions from today (Straser v. City of Athens) while not an employment decision, exemplifies the principal that in comparing who is similarly situated, the first question is disparity. The disparity issue is usually obvious when the employees are of different races or sexes.  The disparities are less obvious when religion and retaliation are involved. The question there starts with the principle that the comparators (those who are being compared too) must have been more favorably treated because they were of a different religion or they had not engaged in protected activity.


Here, an Athens citizen didn’t like being told his carport violated the city’s 30 foot setback requirement.  The city's attorney said they would not permit a variance because they "had had trouble with a Muslim” who too had violated the setback requirement.  This was a disparity, the employee argued, because he was a Christian and being used as an example. 

The Sixth Circuit disagreed, holding equal enforcement – being treated the same – is not a disparity.   "It’s equal treatment, indeed the epitome of equal treatment."

Thursday, May 10, 2012

Sixth Circuit: ADA Does Not Require Employer to Accommodate Employee's Commute

Alisha Regan worked for Faurecia Automotive Seating, an automotive manufacturing facility in Michigan. When hired, Regan's work hours were from 6 am to 3 pm.  When her husband later took a new job, they moved some 79 miles from Ms. Regan's job, resulting in her commute to work lasting between two and four hours. 

Regan has narcolepsy but continued to work without incident until Faurecia determined that her group's 6 to 3 shift was inefficient because materials the group needed did not get to them until later in the morning.   When Faurcia change the hours from 7 to 4, Ms. Regan asked to be allowed to leave work at 3 pm (by skipping lunch or starting work earlier) as an accommodation because driving home from work at the later time would put her in heavier traffic.  She explained that heavy traffic tired her out more quickly and cause her to become tired.  Her commute would take longer because she would have to pull over and rest more often.  Faurecia offered FMLA leave but refused to let her end work at 3.

As a threshold matter, the court of appeals addressed whether Ms. Regan's requested accommodation was reasonable because it sought to accommodate difficulties she encountered outside of the work environment.  Relying upon decisions from other courts, the court of appeals held that "the Americans with Disabilities Act does not require Faurecia to accommodate Regan’s request for a commute during more convenient hours. Under the facts present here, her proposal of a modified work schedule for purposes of commuting during hours with allegedly lighter traffic is not a reasonable accommodation."

Tennessee employers should not read more into this decision than it says.  The EEOC agrees that an employer is not required to "provide assistance in getting [an] employee to and from work."  But the EEOC's position is also that an employer must allow an employee to work a "modified work schedule" (e.g. different start or ending times) as an accommodation for a disability.  

Frankly, it is not easy to reconcile the Sixth Circuit's decision with the EEOC's position.  The Sixth Circuit apparently concluded that difficulties caused by the heavier commute were too attenuated from a symptom of her disability (which an employer must accommodate).  I suspect the EEOC might not agree, saying that Regan's disability was a major reason Regan felt she needed to leave early. 

Wednesday, April 25, 2012

EEOC Addresses Employer's Use of Criminal Background Checks


Of course, as the EEOC acknowledges, Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin but "[h]aving a criminal record is not listed as a protected basis in Title VII."  Instead, employers can be found liable under Title VII when, for example, "the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record."   Most employers get this point.
The more difficult question is when will the EEOC find that an employer's reliance on criminal background checks causes a disparate impact.  The EEOC's guidance cites to FBI and other studies and finds that
African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. 
The EEOC also found that imprisonment rates among African Americans was between 5.6 to 10 times higher than imprisonment rates among whites.  Comparative statistics for Hispanic arrests and incarcerations are less reliable but equally troubling.

Based on these statistics, the EEOC concludes that "that criminal record exclusions have a disparate impact based on race and national origin."  There are two points to note here.  I don't dispute the statistics the EEOC relies upon, but the EEOC's adverse impact findings do not distinguish arrests from imprisonment.  Assuming neutrality, employers should be able to treat past convictions as more serious than past arrests. Also, as the EEOC acknowledges, these statistics are no substitute for actual statistics tailored to the employer's hiring pool.  The EEOC cites national statistics and if, as is usually the case, an employer does not hire from a national pool of applicants, then the employer has the right to insist on the use of accurate local data. 

But let's assume there is an adverse impact. The question at this point is whether the practice (however it is defined) is "job related for the position in question and consistent with business necessity." Discussing arrests separately from convictions, the EEOC takes the position that a blanket policy against employing (hiring or firing) individuals because of an arrest history violates Title VII: "an exclusion based on an arrest, in itself, is not job related and consistent with business necessity."  But, the EEOC also says, although "an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.." So, with arrests, employers are advised to take each question individually (and, of course, make consistent decisions to avoid disparate treatment liability).

With convictions, the EEOC is a little more flexible but even here it makes the inquiry too complicated.  The EEOC does not go so far as to prohibit any questions about prior convictions.  It cautions, however, that the "best practice" is to "not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."  One has to wonder whether the EEOC has ever written a job application because I'm having a hard time seeing how a job application could be written in this manner.

The EEOC also needlessly complicates the task of determining whether a past criminal conviction renders an applicant unqualified.  An employer's past conviction policy, it says, must be "tailored to the rationale for their adoption" (considering all the factors) and will "need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."  The EEOC never explains what it means by a "demonstrably tight nexus," much less whether this standard is the same as the business necessity standard in the statute (presumably it is).   So far as I (using Google and Lexis) can tell, the EEOC has never used this phrase for any concept.  And of all things, why adopt a confusing and potentially more demanding standard in a Guidance on the use of criminal histories.  There is just no support for this in the statute.

But while I question whether courts will adopt the EEOC's vague standard, I agree that the better practice for an employer is to never make knee jerk reactions.  Blanket exclusions, no matter what the job, are not a good idea.  But employer can adopt rational policies, especially for jobs that require the employee be put in a position of trust.  The EEOC even acknowledges that "Title VII thus does not necessarily require individualized assessment in all circumstances."

What disappoints me most of all, however, is that the EEOC did not address the kind of evidence or showing it will take for an employee to establish that there was a "less discriminatory 'alternative employment practice' that serves the employer’s legitimate goals as effectively as the challenged practice."  The EEOC should have done more than simply parrot the statute especially since, on this question, it is hard to understand how there could be a less discriminatory alternative.
Finally, the EEOC guidance acknowledges that employers will have a valid defense where federal law establishes job criteria.  As always, however, employers will need to be able to show that their decisions consistently applied these federal mandates.

Wednesday, April 18, 2012

Calling Your Lawyer is Not Evidence of Retaliation

The Sixth Circuit issued a very interesting decision (Sander v. Gray Television Group, Inc. today involving a television news reporter who got mad and stormed off the job, saying "I'm qoing to quit" or words to that effect.  The decision is interesting for the holding that the employee did in fact quit and therefore could not establish a prima facie case (because quitting, short of a constructive discharge, is not an adverse action).

But what interested me was that the court, in discussing whether the employer, assuming it had fired the reporter, considered whether one manager telling another manager to contact the station's lawyers because knowing the employee, the station "would end up at this point sitting at this [litigation] table.”  In arguing that his "termiantion" was retaliatory (the court assumed the reporter engaged in protected activity) the reporter cited to this comment as evidence of retaliation.  The Sixth Circuit didn't buy it:
Companies that terminate employment relationships for legitimate reasons often choose to speak with counsel; therefore, Gray Television’s choice to do so here does not necessarily support a conclusion that Sander was fired in retaliation for complaints about age discrimination.
As of late, I've revived my interest in "age conscious statements" and this decision addressed an argument that is currently being made by older employees.  In his ADEA claim, the reporter (Sander) cited to allegedly age biased statements made by his new supervisor (Thomas) (who made some significant changes to the station).  The court, however, rejected the argument:

Sander claims that Thomas “admitted that he harbored an age-related bias against Sander.” However, to support this claim Sander can only point to Thomas’s comments regarding Sander’s “weak” energy levels and his perceived reluctance to change. The “perceived reluctance to change” was in relation to Sander’s disgruntled attitude toward learning to post stories on the web, which is not necessarily age-related. As for the “weak” comment, as the district court explained, one’s energy level is not only not necessarily related to age, but also is essential to the success of a television station.
I typically suggest, perhaps a bit unrealistically, that employers avoid making any statements that might be taken to reflect an age animus.  (My point is it is better to be explicit, not conclusory, in  describing an employee's performance issues and anything that avoids the cost of litigation is a good thing for an employer.  But truth be told, this decision shows that many innocent comments can be twisted and used against an employer.

Thursday, March 29, 2012

The ADEA and "New Eyes"

Earlier in my career I tried to compile a list of the alleged "age conscious statements" addressed by federal court decisions.  It was fun, but impossible to keep up to date.  I still use it from time to time. 

A CA6 decision issued today (Metz v. Titanium Metals) involved a new one for me.  In making a reduction in force decision, a decision maker (Heatherington) sent an email which compared the respective candidates.  The email said:
 [Dickinson] has been employed with us for seven-and-a-half years and has continually performed in various capacities at a high level. He is a solid performer and will bring new eyes and tools to the material movement area of the plant . . . . The two Supervisors currently in that area have been with Timet for many, many years, Hercules, 42-plus, Metz, 23-plus, and Mike Saletta is looking to bring new ideas to the area. Hercules will most likely retire within six-to-nine months. [Dickinson] is well-suited to ensuring improvement in this area. 
The court rejected the argument that these comments reflected an age bias, explaining: 
These comments do not require the conclusion that Timet discriminated against Metz. Heatherington was describing Metz’s and Hercules’s tenures at Timet, which is not the same as their age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (an employer’s consideration of an employee’s years of service does not equal discrimination). Heatherington’s remarks about “new eyes and tools” and “new ideas” are ambiguous and do not necessarily refer to age. See Abnet v. Unifab Corp., No. 06-2010, 2009 WL 232998, at *4 (6th Cir. Feb. 3, 2009) (a supervisor’s statement about the need to bring in “new blood” or a “change agent” did not show discrimination). And her mention of Hercules’s plan for retirement does not show age-based animus. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (comments on an employee’s planned retirement, without more, do not show discrimination).
While the court ruled these comments were not discriminatory, employers should not take this as permission to use these words.  It is best to play it conservatively.  The better practice is to avoid the use of somewhat conclusory statements ("new eyes and tools") in favor of a more detailed explanation of the critical skills the surviving employee possesses.

Subjective Assessments

There's nothing automatically wrong with basing employment decisions on subjective assessments.   For many jobs, particularly exempt jobs, it can be the only way to evaluate an employee's performance.

It is important, however, to do it right.  That means being able to explain the reason for the subjective decision adequately.  In the disciplinary context, it also helps, strongly helps, to be able to point to past attempts to correct the employee's problematic conduct.

A decision (Segal v. Kimberly Clark) from the Sixth Circuit released today demonstrates the difference between an unsupported subjective decision made in a vacuum and laying the proper groundwork.   Consider Kimberly Clark's reason for firing Segal:
First, Kimberly-Clark’s reasons for Segel’s termination are richly supported by the record. Segel’s annual performance reviews persistently expressed concern regarding Segel’s inflexibility toward his colleagues and his clients as early as 2000. When Segel’s 2006 performance review indicated a heightened level of dissatisfaction with Segel’s inflexibility, Kimberly-Clark provided Segel with both a 90-day PIP and a 30-day Last Chance Agreement to improve his behavior. Both documents highlighted Segel’s inflexibility as the reason for Segel’s probationary status with Kimberly-Clark and made clear that Segel’s failure to improve would result in termination.
Segal argued that “flexibility” is an entirely subjective criterion, and that “[s]ubjective assessments are easily susceptible to manipulation in order to mask the interviewer’s true motivations.”  He tried to rely upon a a previous CA6 decision, White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). The court, however, explained what White held and why that didn't apply to Segal:
In White, an African-American employee appealed the district court’s grant of summary judgment in favor of his prior employer. 533 F.3d at 384. The employee in this case had received stellar performance reviews and was interviewed for an internal promotion; ultimately, however, another candidate was selected for the job. Id. at 386-87. The employer explained that the other candidate was selected because the interviewers considered the employee “extremely aggressive” and “confrontational.” Id. at 387. This Court reversed the district court’s grant of summary judgment, holding that:
any evaluation of [plaintiff’s] interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision. Indeed, since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed, it would be highly inappropriate for us to assume . . . that their own subjective perceptions of [plaintiff] were accurate.
Id. at 394. Accordingly, this Court found that a jury could reasonably disbelieve the employer’s proffered explanation and that the employee’s case was entitled to go forward.
The facts in this case are distinguishable from White. The record in this case presents a longstanding concern with Segel’s flexibility; whereas the adverse employment decision in White occurred in a vacuum of otherwise glowing reviews, Kimberly-Clark’s decision to terminate Segel took place after years of documented concerns regarding his flexibility. Further, the plaintiff in White was interviewed by only four people on one occasion, whereas Segel was evaluated by a greater number of individuals on multiple occasions over the course of many years. So, even though a subjective term like “aggressive” was not a sufficiently clear motivating factor in White, we find that a similarly subjective term—“inflexible”—is adequate where it was repeatedly utilized by varying people on numerous occasions.
So, wise employers won't rely upon subjective decisions "in a vacuum of otherwise glowing reviews" but will lay the ground work by showing a history of addressing the problematic conduct with the employee.

Friday, January 20, 2012

Sixth Circuit Rules Employer Violated FMLA by Failing to Advise Employee How It would Calculate FMLA Leave Eligibility

The Sixth Circuit issued an ugly decision today in an FMLA interference claim.  It's ugly because it didn't need to happen.

The dispute concerned when the employee was required to return from FMLA leave.  The employee thought he had longer than did the employer, who fired the employee when the employee didn't return by the employer's deadline.  The employee maintained he would have been able to return to work by the deadline as he understood it.

The problem arose in how the employer calculated the employee's eligibility for 12 weeks of leave. The court explained:
The FMLA stipulates that, “an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable  to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(D). Employers, for their part, are “permitted to choose any one of . . . [four] methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement . . . occurs.” 29 C.F.R. § 825.200(b). Two of these four methods, namely, the “rolling” method and the “calendar” method, are pertinent to this case. The “rolling” method calculates an employee’s leave year “backward from the date an employee uses any FMLA leave.” Id.
 Under the rolling method, the employee's 12 weeks of leave would have expired on June 13, while under the “calendar” method, the allowed leave would have extended theoretically through July 14. The problem, the court said, was that (the emphasis belongs to the court):
At no time throughout the FMLA process did the Company mention to Thom that his leave time would be governed by a “rolling” 12-month period. The only written document he received from the company stated that his leave would expire on June 27. He was only notified that American Standard had  accelerated his return-to-work date on June 14, after it had already elapsed the day before. The first time Thom was given actual notice that the Company was using a “rolling” method requiring him to return to work on an earlier date was after he filed his lawsuit in this case when the defense lawyers raised the rolling method as a defense.
 The employer tried to argue that it had given notice to the employee but the court didn't buy it:
employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, [the employer']s notice to [the employee] fell decidedly short. Although [the employer] did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give [the employee] actual notice of this changed policy.
 Even worse, the employer had approved the employee's FMLA leave for though June 27, which was well after it later maintained, in the litigation, the employee's leave expired.

The lesson is pretty simple.  Make sure to designate the manner in which you will calculate FMLA leave eligibility.  The rolling calendar method is the one most employer's favor.  But more importantly, make sure to calculate FMLA leave eligibility for each employee before approving a return to work date.  But even if you mistakenly approve a return to work date after an employee's eligibility expires, you can fix the mistake by notifying the employee of the new return to work date.  Depending on the circumstances, specifically, the employee's reliance on the longer leave period, you may have to be flexible in when the employee returns.

Thursday, September 15, 2011

Sixth Circuit Upholds FedEx Reorganization Decision

Linda Epps worked for FedEx in Memphis as an IT Manager, managing one project called the Managed Resource Services Office or MRSO. In 2006, FedEx brought in another manager (named Black) who carried four projects and one initiative. Not much later, Werner (to whom Black and Epps reported) decided to eliminate Epp's IT Manager position and transfer the MRSO duties to Black.  Epps trained Black on those duties.  FedEx gave Epps the opportunity to locate a new management position but after she was unable to do so, she took a demotion which required her to report to Black and reduced (gradually over an 18 month period) her salary.  Epps later sued for race discrimination.

What seems most helpful about the unpublished decision is how the court analyzed FedEx's reasons for the reduction/demotion.  The question, of course, was why select Black instead of Epps to be the IT Manager.
Assigning the consolidated duties to Black required Black to learn one new project: MRSO. In contrast, had the consolidated job been assigned to Epps, she would have been required to learn four new projects and one initiative. Based on the number of direct reports managed by Epps and Black prior to the demotion, it is likely that MRSO was a larger project than any one of the projects on which Black was working. However, it appears that Black had the larger sum total of management responsibilities, and her work covered a greater number of discrete areas. Therefore, FedEx has provided a legitimate, nondiscriminatory explanation that it was more efficient to assign the MRSO project to Black than to move all of Black’s projects to Epps.
Further, Black had a longer tenure with FedEx, had more experience reporting to senior level management, and had won two of the company’s five-star awards for excellent work. Although Epps had a consistently positive work history with FedEx and had earned a promotion to management, her most recent year-end evaluation had identified several areas in which improvement was needed. Werner stated that he was focused on efficiency—not prior job performance—in choosing who should take on the consolidated duties. However, he mentioned his awareness of Black’s strong track record with the company, and that history further supports the business decision to select Black over Epps for the remaining management position.
In making difficult decisions to select employees for a reduction in force, employers are smart if they can explain the reasons for the decision in the manner recounted above.  The temptation, as I bemoaned before, is to try to objectify or quantify what is really a subjective analysis.  While not illegal, I feel it is better to be able to explain the decision in words, as FedEx did, rather than by assigning numbers to subjective factors. 

Epps tried to argue her selection was pretextual because she had gotten her first negative evaluation just after her demotion.  The court's response to this argument is a good lesson for all employers because even Epp's prior evaluations, while overall positive, "indicated several areas in which" Epps supervisor "expected improvement, clearly signaling the potential for a future negative review."  Again, wise employers will address performance problems as they arise, and then document them as areas for improvement on performance evaluations, even if the issues do not themselves merit a lower overall rating.

Wednesday, September 14, 2011

Documenting Poor Performance

It's a recurring theme, one I have addressed before, but it can't be stressed enough how helpful it is in defending employment litigation to have adequate documentation of poor performance.


The court rejected the employee's ("Webb") several attempts to establish that he was meeting the employer's legitimate qualifications for the job, explaining:
Webb does not offer probative evidence that he was qualified. First, Webb relies on positive performance reviews from prior years to establish his qualifications at the time of termination.  On facts closely resembling this case, this court in Strickland expressly rejected such use of prior year-end performance reviews because they suffered from “staleness” and did not establish that a plaintiff was “qualified at the time of her termination.”  Strickland, 45 F. App’x at 424. As in Strickland, this evidence is stale because Webb’s performance or ServiceMaster’s expectations may have legitimately changed since the prior review period. Second, Webb offered emails in which coworkers requested Webb’s assistance on a project, which Webb believes show that his work was adequate and, therefore, met ServiceMaster’s expectations.  The opinion of Webb’s coworkers is irrelevant: under both the ADEA and THRA the relevant test is the legitimate expectations of an employer, not a coworker. See Strickland, 45 F. App’x at 424. Even if the court were to consider these emails, they do not create a genuine issue of material fact: no reasonable jury could find that one routine request for assistance demonstrates that Webb was meeting the legitimate expectations of his employer. For these reasons, Webb has provided no evidence that he was meeting his employer’s legitimate expectations at the time of his termination and, therefore, has not established either his age or disability discrimination claims.
What did the employer do right?  The court explained that Webb's new manager, "had concerns about Webb’s productivity, began supervising him directly and found his work unacceptable or incomprehensible, gave Webb a negative midyear performance review, placed him on a [performance improvement plan] during which Webb failed to improve, and ultimately recommended Webb’s termination for unsatisfactory performance and a failure to perform “at the manager level.”

There was, of course, no evidence of disparate treatment.

Monday, September 12, 2011

Similarly Situated Evidence - Employers Must Consider Differences

The court of appeals in Chicago recently issued an instructive decision on comparing similarly situated employees.  The fired employee worked for the Indiana Department of Corrections and repeatedly refused a job assignment to the point that the DOC fired her.  She sued under the ADA alleging the firing was a pretext for getting rid of her because she had back problems (which was one reason she refused the job assignment).

The court of appeals initially addressed whether the employee was similarly situated to two other employees who had also refused (to some degree) a job assignment.   This aspect of the decision can be summed up by saying that employers shouldn't try to split too fine a hair in making employee comparisons.

The more important point, it seems to me, is that employers should consider all factors that distinguish an employee from co-workers when deciding on the level of discipline for an employee.  Here, when the lawsuit got to litigation, the employer argued that the fired employee was not similarly situated to other employees who were not fired because the fired employee had a worse disciplinary history.   Of course, an employee's disciplinary history is a perfectly valid consideration in imposing discipline. 

The problem for the employer was that (as the court said): "not only does the evidence fail to indicate that disciplinary history was considered, but the record makes clear that disciplinary history played no role in DOC’s decision to terminate . . . employment."  It explained:
A characteristic that distinguishes two employees, regardless of its significance when objectively considered, does not render the employees non-comparable if the employer never considered that characteristic. The purpose of the similarly situated requirement is to provide a basis for a judgment about the fairness of the employer’s decision.  Factors never considered by the employer cannot provide any insight as to whether the employer’s decision was motivated by discriminatory intent.
The problem here was that the employer's evidence established that disciplinary history was not a consideration at the time.

So, in considering discipline for misconduct, it will help to make sure your documentation demonstrates you took into account all the differences between employees.  While this should be documented (so as to avoid the argument that the evidence was manufactured after the fact), it is at least as important to consider all the reasons for distinguishing employees.  At a minimum, the decision-makers need to be able to convincingly testify that they considered the factors which distinguished the fired employee from employees who were not fired.