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FMLA Doesn’t Protect Sleeping On The Job

April 3, 2017Robert C. Lockwood

FMLA Sleep — The FMLA Doesn’t Protect Employees Who Sleep On The Job

The Eleventh Circuit Court of Appeals recently rejected an attempt by an employee to use the FMLA as a shield to prevent her termination for sleeping on the job. Feise v. North Broward Hosp. Dist., No. 15-15261, 2017 WL 1101402 (11th Cir. Mar. 24, 2017). In Feise, the employee was a nurse who took FMLA leave in August 2013 and returned to work in September. Ten days after returning to work, Feise was terminated for sleeping on the job. Feise claimed that she was terminated in retaliation for using FMLA leave.

For purposes of appeal, the Eleventh Circuit assumed that Feise could prove a basic, prima facie case of FMLA retaliation. Instead, the Court focused upon the employer’s reason for termination and Feise’s response. The reason for termination was clear — sleeping on the job. Therefore, the burden shifted to Feise to show that sleeping on the job was not the real reason for her termination.

In an attempt to meet her burden, Feise compared herself to other employees who committed misconduct, but were not fired. First, Feise claimed that a medical technician committed misconduct which was worse than sleeping on the job — abandoning supervision of an at-risk child. Yet, the Eleventh Circuit rejected that attempt: “On-the-ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which we defer to employers.” Second, Feise compared herself to a medical technician who was not fired for sleeping on the job. Again, the Eleventh Circuit rejected that attempt, finding that the technician produced a doctor’s excuse for sleeping on the job, and that there was a qualitative difference between a nurse (Feise) and a medical technician.

The Court found that Feise failed to meet her burden and affirmed dismissal of her FMLA retaliation claim. Feise provides two lessons for employers. First, an employer can terminate an employee, even in close proximity to protected conduct like FMLA leave. Second, to protect themselves from retaliation law suits, employers need to discipline similar employees in a similar manner. If the employer in Feise had retained other nurses who slept on the job, but terminated Feise, the outcome of the case could have been much different.

Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

March 2, 2017Robert C. Lockwood

Thin Ice retaliation — Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs. Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination. As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits. Those cases focus on the concept of causation. As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint. In most cases, close timing between the complaint and termination is sufficient to establish causation. But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation. Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.” Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim. The Eleventh Circuit provides the following rationale for that rule: “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.” Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision. Additionally, employers should also proceed cautiously any time an employee complains about discrimination. Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.

Belief “From the Heart” Cannot Prove Discrimination

February 22, 2017Robert C. Lockwood

Belief heart discrimination — A belief “from the heart” is insufficient to prove discrimination.

I frequently tell clients: “There’s a difference between what you know and what you can prove.” A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.” Even so, the maxim is really the foundation for our court system. Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court. The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).

In Mells, an employee sued for racial discrimination arising from denial of a promotion. The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants. Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel. Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.

The Eleventh Circuit rejected that argument: “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.” The Court found no evidence that the interview panel was biased or swayed by the supervisor. As a result, the Court affirmed dismissal of her claims. Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.

Mells provides two lessons. First, it demonstrates the benefits of using interview panels in hiring and promotion decisions. If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel. Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.

ADA: Job Descriptions Are Crucial For Proving Essential Functions

February 20, 2017Robert C. Lockwood

ADA essential functions job description — ADA: Job descriptions help to determine the essential functions of the job

Employers need to draft job descriptions for each class of employees in their workplace. The importance of good job descriptions was recently reinforced in an Americans with Disabilities Act (“ADA”) decision from Morgan County, Alabama. Bagwell v. Morgan County Commission, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017).

Under the ADA, only a “qualified” individual with a disability can sue for discrimination. A “qualified” individual is one who can perform the “essential functions” of their job, with or without reasonable accommodation. Thus, employers sued for disability discrimination frequently argue that an employee cannot perform the essential functions of their job.

In the Eleventh Circuit (which includes Alabama), federal courts “give substantial weight to an employer’s judgment as to which functions are essential.” Bagwell, 2017 WL 192694 at * 2. In Bagwell, the Eleventh Circuit Court of Appeals affirmed the trial court, which found that every activity listed in a job description was an essential function of the plaintiff’s job. The plaintiff was employed as a groundskeeper, and her job description required the ability to traverse uneven and wet surfaces, standing and walking. But, the plaintiff could not perform those essential functions safely and consistently because of her condition. As a result, the Eleventh Circuit found that the plaintiff was not “qualified” and affirmed dismissal of her ADA claim.

While it is possible for an employer to argue about “essential functions” even where no job description exists, Bagwell demonstrates that a written job description can be an effective aide in defending ADA claims.

Discrimination: Sometimes, ignorance is a good excuse.

January 26, 2017January 26, 2017Robert C. Lockwood

Ignorance discrimination knowledge — If a decision maker lacks knowledge of an employee’s protected class, an employer may possess an additional defense to discrimination claims.

We’ve all heard the phrase: “Ignorance of the law is no excuse.” Indeed, that point has been driven-home to at least one employer in Alabama: Ignorance of the Law is No Excuse While ignorance of the law is not a good excuse, sometimes, ignorance of the facts can provide employers with a defense to employment discrimination claims.

The vast majority of federal employment laws only prohibit intentional discrimination. As a result, if a decision-maker possesses no knowledge (i.e. ignorance) of an employee’s protected status, then numerous decisions hold that there was no intentional discrimination. For example, an employee suing under the Americans with Disabilities Act must prove that he or she was fired “because of” a disability. But, the Eleventh Circuit Court of Appeals has clearly held that “a decision–maker who lacks actual knowledge of an employee’s disability cannot fire the employee ‘because of’ that disability.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005). The Court has reached similar conclusions in cases involving allegations of: religious discrimination under Title VII of the Civil Rights Act of 1964, Lubetsky v. Applied Card Sys., 296 F.3d 1301, 1306 (11th Cir. 2002)(” an employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion.”); and, retaliation under Title VII, Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“A decision maker cannot have been motivated to retaliate by something unknown to him.”).

This post is not intended to encourage employers and decision makers to remain blissfully ignorant of issues in the work place. Indeed, ignoring work conditions can quickly lead to more law suits. But, if a decision maker was truly unaware that a terminated employee was part of a protected class, then there is a potential defense to an employment discrimination claim.

Even If Employee Violates Non-Compete, Employer Must Still Prove “Irreparable Injury”

January 23, 2017Robert C. Lockwood

Employer employee non-competition agreement competitor — Employers have to prove they are harmed when a former employee goes to work for a competitor.

Employers frequently require employees to sign non-competition agreements. Generally, those agreements are used to protect employers from the risk that training and information given to an employee can be used by a competitor. But, an employee’s decision to work for a competitor does not mean that the employer will automatically win a law suit for violation of a non-competition agreement. Instead, the employer is also required to show that it will suffer “irreparable injury” if the employee works for a competitor. See Transunion Risk and Alt. Data Sol., Inc., v. Challa, No. 16-11878, 2017 WL 117128 (11th Cir. Jan. 12, 2017).

TransUnion Risk and Alternative Data Solutions, Inc. (“TRAD”) and its competitor IDI, Inc. work in the “data fusion” field — their products aggregate fragmented information about people, businesses and assets. Challa worked for TRAD in the development of its data fusion software. He wrote code for the software and worked on integrating data into the software. Challa signed a one-year non-competition agreement while working for TRADS. Immediately, after leaving TRADS in 2014, he began working for its competitor, IDI.

TRADS sued Challa for violating the non-competition agreement and asked for a preliminary injunction to force him to stop work immediately. The trial court and the Eleventh Circuit found that there was no question that Challa violated the non-competition agreement because he went to work for a competitor.

Even so, TRADS didn’t win. To obtain a preliminary injunction, TRADS was required to prove that it would suffer “irreparable injury” if Challa worked for IDI. The trial court and the Eleventh Circuit found insufficient evidence of such “irreparable injury.” The decision relied upon several key facts. First, the trial court believed Challa, who claimed that his job at IDI was hardware-centric, but that his job at TRADS had been software-focused. Second, the data fusion industry is rapidly evolving, minimizing the usefulness of any proprietary knowledge that Challa possessed. Finally, the court believed Challa when he claimed he would not reveal any of TRADs’ proprietary knowledge to IDI.

TRADS argued that “the mere possibility that Challa might at any point divulge confidential information” required a finding of irreparable injury. But, the Eleventh Circuit disagreed. Harm is irreparable if it is “actual and imminent.” But, TRADS’ argument would require a finding of irreparable injury even when the potential harm was prospective and wholly speculative.

Potentially, Transunion Risk is an outlier case, where a trial court made credibility determinations that benefited the employee. Nevertheless, Transunion Risk also provides an important warning to employers. Your former-employee’s presence at a competitor does not automatically mean that you can enforce a non-competition agreement. Instead, you also need to produce substantial evidence of the harm that his/her presence at the competitor will cause.

Asperger’s at Work: Potential for Conflict Between Title VII and ADA

December 29, 2016December 29, 2016Robert C. Lockwood

autism

A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome. Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016). Asberger’s is generally considered a “high functioning” form of autism. Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome

In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s. Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over. She also claimed that Seligman would intentionally bump against her and rub his erect penis against her. When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.” Furcron, 2016 WL 7321211 at *2. Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.

Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries. He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.” He sued for violations of the Americans with Disabilities Act. The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.” Taylor, 133 F.3d at 1424. Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior. Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.

A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s. Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003). In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis. As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store. Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult. The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”

These cases seem to place employers in a Catch-22 situation. If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act. But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.

Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior. Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA. To do so, however, employers need to establish, at a minimum that: (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.

Migrant Farm Workers and the Fair Labor Standards Act

December 27, 2016January 20, 2017Robert C. Lockwood

For purposes of the Fair Labor Standards Act, migrant farm workers can be joint employees of the farm where they work and the company which supplies their services to the farm. See Garcia-Celestino v. Ruiz Harvesting, Inc., No. 16-10790, 2016 WL 7240150 (11th Cir. Dec. 15, 2016). The issue of joint employment is raising its head frequently as companies try to limit their liability to the people providing services to them. As I previously discussed, the issue is frequently whether an employer possesses control over the worker: MY ACHING “JOINTS” – JOINT EMPLOYEES UNDER THE FLSA

In Garcia-Celestino, Basiliso Ruiz provided migrant workers to pick oranges for Consolidated Citrus. Consolidated paid based upon the number boxes of fruit picked by each worker. If the worker did not pick enough boxes of fruit to achieve minimum wage, Consolidated Fruit paid additional “build-up pay” to raise the worker to minimum wage. Unfortunately, Mr. Ruiz then deprived the migrant workers of minimum wage by requiring them to hand-over the “build-up pay” to him under threat of deportation. Ultimately, the migrant workers sued both Mr. Ruiz and Consolidated Citrus for failure to pay minimum wage under the FLSA.

The primary issue in Garcia-Celestino was whether the migrant workers were joint employees of Consolidated Citrus for purposes of breach of contract and FLSA claims. The trial court found that Consolidated Citrus was a joint employer for both claims, and relied upon the FLSA’s “suffer or permit to work” standard of “employer” to reach that conclusion. Under that definition, the ultimate question is whether, as a matter of “economic reality,” the hired individual is “economically dependent” upon the hiring entity.

The Eleventh Circuit found that the trial court incorrectly applied the “suffer or permit to work” standard to the migrant workers’ breach of contract claims. As a result, the Eleventh Circuit remanded the case for the trial court to determine whether the migrant workers were Consolidated Citrus’s employees under the common-law standard — which focuses mostly on control. Nevertheless, for purposes of the FLSA minimum wage claims, the Eleventh Circuit found that the trial court correctly applied the “suffer or permit to work” standard, and concluded that Consolidated Citrus was a joint employer for purposes of the minimum wage claims.

Garcia-Celestino provides a cautionary tale for all employers — not just farmers. If you are contracting-out labor, you run the risk of liability as a joint employer of the contract laborers.

Job-Competition Policy Can Be a Defense to ADA

December 9, 2016Robert C. Lockwood

Reasonable accommodation competition ADA — Employers Can Require Disabled Employees To Compete For Open Positions Without Violating Reasonable Accommodation Requirements

On Wednesday, the Eleventh Circuit Court of Appeals held that the Americans with Disabilities Act (“ADA”) does not require employers to forego a job-competition policy as part of the reasonable accommodation process for disabled employees. See EEOC v. St. Joseph’s Hosp., No. 15-14551, 2016 WL 7131479 (11th Cir. Dec. 7, 2016).

In the St. Joseph’s case, Leokadia Bryk was a nurse in the psychiatric ward of St. Joseph’s hospital. After 7 years on the job, spinal stenosis and a hip replacement caused her to use a cane for assistance walking. The hospital found that the cane prevented her from performing the essential functions of her job, because psychiatric patients could use the cane as a weapon.

After making that safety determination, the hospital gave Ms. Bryk 30 days to identify and apply for other positions. The hospital waived its typical internal transfer policy, which would have prohibited Bryk’s transfer, because she received a disciplinary warning. The hospital also made its Manager of Team Resources available to help Ms. Bryk with the process.

The hospital did not waive its policy which required internal applicants to compete for positions. Ms. Bryk applied for a position as an Education Specialist at the hospital and met the minimum requirements for the position. Nevertheless, the managers hiring the Educational Specialist found that she was not the most qualified applicant and rejected her application. The hospital terminated Ms. Bryk’s employment when she did not obtain another internal job at the hospital.

The EEOC sued for Ms. Bryk and argued that the reasonable accommodation requirements of the ADA required noncompetitive reassignment of Ms. Bryk to the Education Specialist position because she met the minimum requirements for the job. The Eleventh Circuit disagreed, finding that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” St. Joseph’s, 2016 WL 7131479 at *8. “Passing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel.” Id. at *9.

The Eleventh Circuit left open a small possibility that “special circumstances” might require waiver of a job-competition policy, but did not find any such circumstances in Ms. Bryk’s case. Thus, St. Joseph’s provides some assurance to employers that, in most cases, they will not violate the ADA’s reasonable accommodation policies by requiring disabled employees to comply with a job-competition policy.

Fluctuating Workweek Overtime: An Alternative to Time and a Half

November 16, 2016Robert C. Lockwood

Many of my clients are calling with questions about the new overtime regulations, which become effective on December 1, 2016. Those calls and a recent decision from the Eleventh Circuit Court of Appeals merit a discussion of the “fluctuating workweek” method of calculating overtime. See Garcia v. Yachting Promotions, Inc., No. 16-10095, 2016 WL 6276046 (11th Cir. Oct. 27, 2016). In summary, an employee with a fluctuating work schedule can be paid: (1) a fixed weekly salary; and (2) half-time (instead of time-and-a-half) as overtime compensation for all hours over 40.

This methodology should only be applied to employees who work irregular work hours. Most importantly, their hours must fluctuate both above and below 40 hours per week.

If an employee truly works a fluctuating workweek, then it is possible to pay them overtime at half-time rather than time-and-a-half. But, there are numerous requirements that must be satisfied. Critically, the employee must be paid a fixed weekly salary as straight time pay. The employee receives this amount if they work less than 40 hours in a week, or more than 40 hours. Additionally, the Department of Labor’s regulations provide:

The employee clearly understands that the straight-salary covers whatever hours he or she is required to work;
The straight-salary is paid irrespective of whether the workweek is one in which a full schedule of hours are worked;
The straight-salary is sufficient to provide a pay-rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours worked is greatest; and
In addition to straight-salary, the employee is paid for all hours in excess of the statutory maximum at a rate not less than one-half the regular rate of pay.

See 29 C.F.R. § 778.114.

In Lopez-Garcia, the issue was whether there was a clear mutual understanding between the employer and the employee to apply the fluctuating workweek methodology. “The employee does not have to understand every contour of how the fluctuating workweek method is used to calculate salary, so long as the employee understands that his base salary is fixed regardless of the hours worked.” Lopez-Garcia, 2016 WL 6276046 at *2. In Lopez-Garcia, the plaintiff possessed limited proficiency in English. Nevertheless, he signed a memorandum acknowledging his understanding of the fluctuating workweek, and he knew that he was a “salary employee who did receive overtime.” Id. Those facts were sufficient for the Court to find that the employee was properly paid under the fluctuating workweek method.

The Department of Labor is concerned that employers might attempt to use the fluctuating workweek methodology to limit overtime paid to employees — particularly employees who do not truly work a fluctuating schedule. Thus, application of this methodology should be approached very carefully. But, if you have employees whose schedule truly fluctuates over and under 40 hours per week, this is a potential alternative method for calculating overtime.

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