In addition to the many usual topics of cases and rulings (discrimination, social media, etc.), this month saw many employment law news stories focusing on the Family Medical Leave Act, the good ol’ FMLA. Grab your neck brace and let’s review!
A federal district court in Minnesota held that two concurrent conditions can add up to one FMLA-worthy situation, even if each condition on its own wouldn’t have been enough to trigger FMLA leave. Of course, it can’t just be any two conditions; they have to work together to make the employee truly miserable.
The Third Circuit Court of Appeals ruled that even when on FMLA leave, an employee has to abide by their employer’s sick-leave policy, which in that case includes staying relatively close to home and not going to Mexico.
The Sixth Circuit Court of Appeals upheld a ruling in an employer’s favor in a retaliation case stemming from termination due to an apparent violation of FMLA policies (it’s complicated). Basically, it’s not retaliation if the company acted in good faith.
As you probably know, when employees have exhausted their FMLA leave but still can’t return to work, they automatically receive protection under the Americans with Disabilities Act (ADA). And while termination would be permissible during the FMLA leave time, once the ADA kicks in, companies must investigate to see if reasonable accommodations can be made for employees to continue to work before terminating them. Now the EEOC is investigating companies that have automatic-termination policies for employees who have exhausted their FMLA leave.
Another aspect of the ADA that’s under contention is whether or not it must take employees’ commutes into consideration. Most courts have ruled that it doesn’t, but courts in some states disagree.
Speaking of the ADA, here’s a great primer on how to lose an ADA case (while also being rather awful) in five easy steps.
And finally wrapping up our health section, the Department of Labor has begun auditing health plans to make sure they’re in compliance with the health care reform laws of 2010. Here’s a helpful post on what you need to know to prepare for such an audit.
Moving on to discrimination, you have to respect military leave for your workers; if you’re making snide remarks about an employee losing her hearing because she’s “getting old,” that’s age discrimination; treating gay employees as if their sexual orientation were a mental illness and allowing anti-gay slurs in the workplace is creating a majorly hostile work environment; and (man bites dog!) gay employers refusing to hire straight people because of their sexual orientation is discrimination too.
In social media news, we’ve heard all about employees getting in hot water for posting about their employers, but lately employers have been at fault, too. In one case, the National Labor Relations Board ruled that an employer’s posting of a pro-union employee’s personal phone number with an open invitation to others to call or text the employee was way out of bounds.
What else is out of bounds? Posting information about things like earnings reports or board meetings before the information in question is publicly released. A CFO was recently fired for doing just that.
And speaking of things that are utterly out of bounds, here’s our You-Did-What?! wrap-up for the month:
- A Missouri jury awarded a Muslim woman $5 million in damages after her manager not only allowed a hostile work environment (she was called “terrorist” and “towelhead”), but actually snatched her scarf off her head during a meeting. People, seriously, don’t do that.
- A Milwaukee woman working in customer service was fired with no opportunity for discussion after an FBI records check revealed an arrest for shoplifting in her past… 40 years in her past, to be exact. Is there a court case brewing? Oh, yes.
- And a Florida HR manager was fired by her supervisor after making claims of sexual harassment about the supervisor. Of course, said supervisor did send the manager more than 40 pornographic texts and images. Yeah, can’t imagine how that could constitute harassment…
Finally, even as all these cases are bubbling up through the courts, it’s easy to think that employees automatically have it in for employers and that they make complaints and sue because it’s easy money. But a recent study found that just the opposite is true, that such cases are much harder on the plaintiffs and have costs well beyond the financial. So please, follow the law, behave like your sternest relatives are watching and if you’re ever sued, consider settling out of court.