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How to Handle FMLA Leave Abuse
At our recent Safeguarding Employers in 2013 seminar, we provided employers advice regarding how to address fraudulent use of leave under the Family and Medical Leave Act (FMLA). On many occasions employers are reasonably suspicious that an employee is taking purported FMLA leave for other purposes, such as vacation, attending to errands, or simply taking time away from work. While the FMLA permits employers to take certain action in response, employers should do so carefully.
The FMLA regulations provide that “[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.” 29 CFR 825.216(d). Accordingly, an employer may discipline or discharge an employee who fraudulently takes FMLA for another purpose. In support of this principle, courts have developed an “honest belief” rule.
The “honest belief” rule provides that “so long as the employer honestly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial or baseless.” Jaszczyszyn v. Advantage Health Physician Network, 2102 WL 5416616 (6th Cir. 2012). This rule may not, however, protect an employer which takes adverse action against an employee without proper investigation and foundation.
Employers should not rely on mere speculation and stereotyping when concluding that an employee is not really affected by a serious health condition. Caution is particularly warranted when an employer is considering the leave of an employee with a mental serious health condition. If appropriate, employers should consider interactive follow up before taking adverse action, such as seeking a complete medical certification, having a health care provider clarify a medical certification, obtaining a recertification of the employee’s condition, or getting a second opinion from another health care provider.
Takeaway: Employers do not have to tolerate FMLA leave abuse by employees. However, employers should take steps to obtain objective and particularized facts before acting on suspicions of improper use of leave. Failure to do so could result in claims of FMLA interference or retaliation.
Supreme Court Upholds Dismissal of FLSA Collective Action Claim
Court dockets continue to remain full with lawsuits alleging violations of the Fair Labor Standards Act (FLSA) minimum wage or overtime provisions. Many times these cases are filed on behalf of the named person bringing the lawsuit, as well as other employees similarly situated. These cases brought on behalf of a group are known as collective actions.
In a case decided on April 16, 2013, the United States Supreme Court determined what happens to such a lawsuit when the claims of the person bringing the suit become moot. Genesis Healthcare Corporation v. Symczyk, No. 11-1059 (Apr. 16, 2013). In that case, the employee alleged that her employer had improperly failed to pay her, and others, for time worked during breaks. Before any other employee joined the lawsuit, the employer offered to pay her the full amount of her claim. The employee rejected that settlement offer. Nonetheless, the lower courts held, and on appeal to the Supreme Court the employee did not challenge, that by offering to fully compensate the employee the employer had mooted her claim making her no longer eligible to seek relief for herself. The employee argued, however, that she was still entitled to pursue her lawsuit on behalf of fellow employees with the same types of claims.
Although not all of the Supreme Court Justices agreed, the Court decided that the employee was no longer eligible to pursue claims on behalf of her fellow employees. Because no other employee had yet joined the lawsuit, the only live claim was that of the employee who filed the case. Once her claim was determined to no longer exist, the Court held that there was no longer any present claim remaining to resolve and decided that the whole case was properly dismissed. The Court indicated that the result would have been different if other employees had already joined the litigation before the filing employee’s claim became ineffective.
Four of the nine Justices dissented from the Court’s decision because they reasoned the employee’s own claim did not become ineffective merely because the employer made a settlement offer to pay her full claim. Justice Kagan’s dissenting opinion makes for a colorful read, in which she notes that the majority resolved only “an imaginary question.”
Takeaway: Lawsuits alleging FLSA violations, particularly those seeking collective action status, can involve complicated procedural issues. Employers should take care to consider pertinent strategic options, including potentially offering a settlement to the named plaintiff.
Reminder – April 9, 2013 Presentation: Safeguarding Employers in 2013
On April 9, 2013, employers from the Employment, Benefits, and Labor Section at Briggs and Morgan, P.A. will present “Safeguarding Employers in 2013: Changes in Employment, Benefits, and Labor Law” at Windows on Minnesota in the IDS Center in Downtown Minneapolis. A description of the topics that will be covered at the presentation is available here. A copy of the invitation is available here.
The presentation is free to attend. Continental breakfast and lunch will be provided. CLE and HRCI credits will be applied for.
It’s not too late to register to attend the presentation. If you are interested in attending, please RSVP to Dena at rsvp@briggs.com.
USCIS Issues New Form I-9
In a previous blog we noted that the current Form I-9 technically expired on August 31, 2012, but that the United States Citizenship and Immigration Services (USCIS) had issued notice to employers to continue to use that form until a new form was released. Well, that time has come.
On March 8, 2013, the USCIS announced a new Form I-9 that employers should start to use immediately. The form is available here. Prior Form I-9s dated 2/2/2009 and 8/7/2009 may continue to be used until May 7, 2013. As of May 8, however, employers must use the new Form I-9 only.
While the format of the new Form I-9 is essentially the same as previous versions of the form, the Form I-9 now consists of two pages rather than one. The accompanying instructions also have been expanded and provide more detailed guidance regarding completion of the form.
Takeaway: Employers should begin using the new Form I-9 effective immediately, but in no event later than May 7, 2013. If you should have any questions regarding the new Form I-9 or the completion process, please do not hesitate to contact us.
Electronic Cigarettes in the Workplace
When employees now talk about “lighting up,” they may not be referring to smoking a traditional cigarette. The latest development is the electronic cigarette or e-cigarette. These devices generally consist of a tube into which a cartridge is inserted that contains a chemical solution. The solution may or may not contain nicotine. When the battery-operated heating element in the device is “lit” and the user draws a breath through the device, the solution vaporizes and forms a mist simulating the sense of smoking. In common parlance, the practice of using an e-cigarette is known as “e-smoking” or “vaping.”
As a result of the increasing popularity and use of e-cigarettes, employers are determining whether or not their workplace policies and practices should permit smoking of e-cigarettes at work. A first point of reference in this determination is whether such use is permitted under state or local law. Some states, such as New Jersey, have amended their smoke-free laws to expressly prohibit the use of e-cigarettes in the workplace. Minnesota’s Clean Indoor Air Act has not been similarly amended. In 2010, the Minnesota legislature did, however, authorize municipalities to license and regulate the retail sale of e-cigarette devices. Minn. Stat. § 461.12, subd. 1. The Star Tribune reports that the St. Paul city council is currently debating this issue. Minnesota law also bans the sale of e-cigarettes to minors. Minn. Stat. § 609.6855.
Even if applicable law does not ban the use of e-cigarettes in the workplace, some employers are deciding not to allow their use in the workplace. Reasons for such a policy or practice include, for example, the difficulty of monitoring the use of tobacco cigarettes given the similar appearance of e-cigarettes, resulting confusion among tobacco smokers as to why smoking is restricted while e-cigarettes are allowed, and the unknown health effects of the vapor emitted by e-cigarettes.
Takeaway: Employers should determine whether applicable law in their area restricts the workplace use of e-cigarettes. If no such law exists, but an employer nonetheless determines that such use should be restricted, companies should amend their employee policies to clearly communicate that decision.
DOL Issues Guidance on FMLA Care for an Adult Son or Daughter
On January 14, 2013, the Department of Labor (DOL) issued a new Administrator’s Interpretation (No. 2013-1), providing guidance regarding the possible eligibility of an employee to take Family and Medical Leave Act (FMLA) protected leave to care for an adult son or daughter. While this DOL interpretation does not have the force of regulations and is not necessarily binding on the courts, it is an important official statement of compliance guidance from the administrating federal agency.
Generally, the FMLA permits an employee to take leave to care for a son or daughter with a serious health condition who is either (i) under 18 years of age or (ii) is 18 years of age or older and incapable of self-care because of a mental or physical disability as defined under the Americans with Disabilities Act (ADA). The issue that has troubled employers and courts through the years is whether coverage to care for an adult son or daughter is dependent on whether the son or daughter became disabled before or after they turned 18 years old. This recent DOL guidance expressly states that the son’s or daughter’s age at the commencement of their disability is not relevant.
The Administrator’s Interpretation states that an otherwise eligible employee will be entitled to take FMLA leave to care for an adult son or daughter if the following four factors are each met. The adult son or daughter must: (1) have an ADA-covered disability; (2) be incapable of self-care due to that disability; (3) have a serious health condition; and (4) be in need of care due to a serious health condition. As noted in the Administrator’s Interpretation, the 2008 amendments to the ADA significantly expanded the definition of a covered disability.
The DOL guidance also expressly addresses the situation in which an employee may be requesting FMLA leave to provide care to an adult son or daughter who has been wounded or sustained an injury or illness during military service. The FMLA specifically permits such an employee up to 26 weeks of unpaid leave in a single 12-month period to care for their son or daughter who became injured or ill in the line of duty. The Administrator’s Interpretation notes that the service member’s serious health condition may last longer than that single 12-month period. In that situation, an otherwise eligible employee would also be entitled to take FMLA leave in subsequent years for the purpose of providing care to an adult child.
Takeaway: Employers should not rely on whether an adult son or daughter became disabled prior to reaching 18 years of age when analyzing an employee’s request for FMLA leave to care for that son or daughter. The DOL has stated that the son or daughter’s age at the time their disability commenced is immaterial.
Mandatory Arbitration Agreements May Waive FLSA Collective Action Claims
Mandatory arbitration agreements between employers and employees have been a point of controversy during the past couple of decades. While not all employers favor the potential benefits of arbitration, other companies have required their employees to enter into pre-dispute agreements to forego judicial litigation of claims and to commit to arbitration of any disputes.
The enforceability of those agreements have been regularly contested, particularly when the agreement has purported to eliminate any substantive or procedural employee rights. As early as 1997, the Equal Employment Opportunity Commission (EEOC) issued a policy statement opposing the use of mandatory arbitration agreements. To enhance enforceability, employers have drafted these agreements not to limit statutorily-provided remedial relief or procedural rights, such as statute of limitations periods, or an employee’s right to file a claim with the EEOC or other federal or state agencies.
A rather recent drafting twist has consisted of employees agreeing to not arbitrate claims as or on behalf of a class of employees. The enforceability of such a class waiver was contested before the United States Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), in which the Court upheld the class waiver in a consumer contract. To the contrary, in early 2012, the National Labor Relations Board issued a decision denying enforcement of a class waiver in a Fair Labor Standards Act (FLSA) matter. In re D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (Jan. 3, 2012).
Now, in a newly-issued opinion, the Eighth Circuit Court of Appeals distinguished the NLRB’s decision in D.R. Horton and has concluded that such class waivers are enforceable by an employer in an FLSA case. Owen v. Bristol Care, Inc., No. 12-1719 (Jan. 7, 2013). In doing so, the Eighth Circuit (which includes Minnesota) joined several other federal courts of appeal in reaching the same conclusion.
Takeaway: Employers who prefer to arbitrate rather than judicially litigate employment disputes should consider drafting their mandatory arbitration agreements to include a provision by which employees agree to waive their right to arbitrate as or on behalf of a class, including collective actions under the FLSA. Please let us know if we can assist you in drafting such language.
How to Handle Employees with the Flu
Seasonal flu has once again appeared in the homes, schools, and workplaces of Minnesota. The Star Tribune reports that Twin Cities hospitals are at or near capacity with flu patients and hospitals are cautioning healthy family and friends to stay away.
Such widespread illness can lead to other rather dramatic reactions. For example, employers wishing to avoid contagious spread of the flu and related workplace absences might decide to terminate the employment of an employee exposed to or diagnosed with the flu. Can an employer do so consistent with applicable law?
In a recent case, the Minnesota Federal District Court held that an employer did not violate the Americans with Disabilities Act (ADA) or the Minnesota Human Rights Act (MHRA) when discharging an employee thought to have been exposed to the flu. See Valdez v. Minnesota Quarries, Inc., No. 12-CV-0801 (D. Minn. Dec. 10, 2012). The employee had traveled to Mexico at the height of the swine flu (H1N1) pandemic. He was discharged following his return to Minnesota allegedly because of his possible exposure to the flu. The employee sued claiming that he had been improperly regarded as disabled. The court, however, determined that the flu (even the swine flu) is transitory and minor and therefore cannot be the basis of a regarded as disabled claim.
What if an employee actually has the flu? Would a discharge on that basis violate the ADA or MHRA? The 2011 amended ADA regulations state that the transitory and minor exception does not apply to allegations of actual disability. See 29 C.F.R. § 1630.2(j)(1)(ix) (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”) Accordingly, while often not the case, it is possible that an employee diagnosed with the flu may be considered disabled under applicable law if they are substantially limited in a major life activity. Further, an employee with the flu may be entitled to protected leave under the Family and Medical Leave Act (FMLA) if they are incapacitated for more than three consecutive days and have received treatment from a healthcare provider.
Takeaway: Employers should be careful to properly address the employment status of any employee having the flu, including a determination as to whether the employee is protected under applicable disability discrimination or leave of absence laws. While it may be prudent to have an employee with the flu stay home until they have recovered, employers should consult with legal counsel before making any discharge decision.
Offer Letters Under Minnesota Law
Many employers in Minnesota extend a job offer by presenting the candidate with a written offer letter. The merits of this best practice include avoiding any ambiguity as to compensation or other employment terms and confirming, as appropriate, the individual’s at-will employment status – for example, by including an at-will employment disclaimer.
The offer letter can also be used to articulate any conditions to the job offer. For example, if the individual must satisfactorily complete a background check or drug screen prior to the offer being finalized, those requirements should be set forth in the letter. Further, if the offer is intended to be void if the candidate fails to show up for work on the specified start date, that term should also be expressly stated in the letter. As appropriate, the letter may also state that its terms are subject to change or withdrawal at any time prior to acceptance.
It is also important that the offer letter communicate any expectations the company may have that the candidate agree to the terms of a noncompete or other restrictive covenant agreement. Typically such an agreement would be included as an enclosure to the offer letter so that the individual can review the specific terms of any such restrictions before accepting the job. For the job itself to act as sufficient consideration for the restrictive covenants, the job must be accepted with prior knowledge of the noncompete, nonsolicit, or other restriction. See, e.g., Sanborn Manufacturing Co. v. Currie, 500 N.W.2d 161, 164–65 (Minn. Ct. App. 1993).
The job offeree’s understanding and acceptance of each of these employment terms is best confirmed by having the individual sign a copy of the offer letter and return it to the employer.
If the offer is accepted and finalized and the candidate becomes employed, this countersigned offer letter can also satisfy the requirements of a little-known Minnesota law regarding contracts of employment. Minnesota Statue § 181.55 was enacted in 1933 and technically requires that employers give employees a written and signed agreement of hire that clearly and plainly states certain terms.
While there is no claim or cause of action that arises if a signed written statement regarding the terms of employment is not provided, the failure to do so results in the employer bearing the burden of proof in establishing such terms in the event of a dispute. See Minn. Stat. § 181.56. The written statement is not required to be given to farm labor or casual employees who are temporarily employed, and does not apply to companies with less than 10 employees. See Minn. Stat. § 181.57.
Takeaway: Rather than leaving basic employment terms ambiguous and subject to dispute, the best practice for employers is to provide a candidate with a written job offer. Legal counsel can be of useful assistance in making sure such letters comply with applicable laws and contain essential terms.
MAP-21 Contains New OSHA Whistleblower Law
The Moving Ahead for Progress in the 21st Century Act or the “MAP-21 Act” was signed into law on July 6, 2012. This law regarding our highway and other surface transportation systems contains various funding and regulatory provisions. Among other issues, MAP-21 focuses on enhancing highway safety.
Consistent with that focus, MAP-21 establishes an anti-retaliation whistleblowing provision that protects employees of motor vehicle manufacturers, part suppliers, and dealerships who provide their employer or the Secretary of Transportation with information relating to “any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement” enforced by the National Highway Traffic Safety Administration. MAP-21’s whistleblowing provisions also protect employees who file or participate in a proceeding involving such matters or who object to, or refuse to participate in, any activity in violation of 49 U.S.C. ch. 301.
MAP-21 whistleblowing complaints are to be filed with the Department of Labor’s OSHA division for investigation and resolution. Possible remedies include reinstatement, compensatory damages, and payment of attorney fees and other costs reasonably incurred by the employee. If it is determined that an employee has brought a frivolous or bad faith complaint, the employer may be awarded a reasonable attorney fee not exceeding $1,000.00.
Takeaway: The Map-21 whistleblower provision is a new addition to a variety of other whistleblower laws enforced by OSHA. Motor vehicle manufacturers, part suppliers, and dealerships should take seriously any employee reports or complaints protected by MAP-21 and take no retaliatory acts against the employee in response.
Employee Background Checks and the Fair Credit Reporting Act
In conjunction with a more competitive job market, employers have increasingly relied on pre-employment background checks to distinguish candidates. Occasionally companies obtain background information, such as criminal history records and financial reports, on their own without outside assistance. More often, however, employers use an external vendors to conduct the background check and provide the information to the company.
Employers should be aware that when using an outside vendor to obtain background information they must comply with the provisions of the federal Fair Credit Reporting Act (“FCRA”). This law provides job applicants, and also employees, with certain rights regarding background checks. It also places certain obligations on an employer when seeking this information.
For example, prior to conducting the background check, the employer must provide the applicant with written notice disclosing the intent to seek this background information. The employer must also obtain the individual’s written authorization to conduct the background check. This form must be provided to the job candidate as a document separate from the job application form. See 15 U.S.C. § 1681b. The vendor conducting the background search, also known as a consumer reporting agency, may supply such forms to the employer for its use. In turn, employers should be careful not to assume that these forms comply with the requirements of the FCRA, but should instead have the forms reviewed by legal counsel to ensure their compliance.
If upon obtaining the background check information the employer decides to not offer the applicant a position, the FCRA mandates a certain two-step procedure. First, the employer must provide the individual written notice of its intent to withdraw the job offer based at least in part on information obtained in the background check and provide the individual an opportunity to obtain a copy of the background check report. Second, after a period of time which may allow the individual an opportunity to correct any errors in the report or otherwise explain the information, the employer can then actually withdraw the offer.
In addition to the federal FCRA, many states have similar laws. Minnesota has such a law, which contains requirements in addition to those found in the federal FCRA. See Minn. Stat. § 13C.02. Employers using external vendors to conduct background checks should make sure that their actions are compliant with these state laws as well.
Takeaway: Employers using outside vendors to conduct background checks on applicants or employees should take care to make sure their actions are compliant with both the federal FCRA and any similarly applicable state law.
Employers Should Continue Using The Current Form I-9 Despite Its Expiration Date
To properly document that new employees are authorized to work in the United States, employers are required to make sure a federally-issued Form I-9 is completed on each employee hired after November 6, 1986. The form must be fully completed within three business days of the employee’s first day of work. As part of this process, the employer must review certain identifying documentation presented by the employee. The Form I-9 is not filed with any governmental agency, but is subject to audit and inspection by the Department of Homeland Security and the Department of Labor.
The Form I-9 is approved and authorized by the federal Office of Management and Budget (OMB). The form has evolved over time and occasionally a new Form I-9 is approved by OMB. Employers should take care to make sure that they are using the currently effective Form I-9.
The current Form I-9 has an OMB expiration date of August 31, 2012. The United States Citizenship and Immigration Services (USCIS) agency recently issued a notice that despite this expiration date, employers should continue to use the currently available form until further notice. Accordingly, employers should continue to use this form after August 31, 2012.
Takeaway: Despite the August 31, 2012, expiration date on the current Form I-9, employers should continue to use that version until further notice from USCIS.
Ankoor Bagchi
Ann Huntrods
Britt Gilbertson
Danielle Fitzsimmons
David Schooler
Ellen Brinkman
Michael Miller
Michael Wilhelm
Mike Moberg
Neal Buethe
Sally Scoggin
Steve Brunn
