By Sheralee Hurwitz

One of the most difficult Family Medical Leave Act (“FMLA”) issues to manage is abuse of approved FMLA leave. The FMLA statute and regulations do not provide much, if any, guidance with regard to the concept of FMLA fraud. Information in the regulations outlines how to confirm that medical certifications are fully completed, dealing with requesting second opinions, and re-certifications. The issue of FMLA fraud is more one of case law development.

A recent Sixth Circuit decision (unpublished), Jaszczyszyn v Advantage Health Physicians Network, provides some guidance for employers about how to properly investigate FMLA abuse and impose discipline. In that case, the employee had a back problem which resurfaced, and she took FMLA leave, obtaining medical certifications that she was totally incapacitated and unable to report to work. During the leave, she attended a Polish festival with friends, and photos of her partying with her friends at the festival appeared on her Facebook account.

Ultimately, in analyzing both the interference and retaliation aspects of an FMLA claim, the court determined that the plaintiff’s FMLA rights were not interfered with; she was given all the leave time to which she was entitled. With regard to the retaliation claim, the plaintiff was required to show that there was a causal connection between the protected FMLA activity and the adverse employment action. Her sole argument to support alleged “retaliation” was the fact that the termination form, completed by someone who was not involved in the termination, said she was terminated because of “absenteeism,” instead of for “fraud.”

The court noted that the personnel form used by the company listed several termination reasons, none of which were “fraud.” Instead of selecting “other” and filling in the following blank with the word “fraud,” the employee completing the form, simply chose the “absenteeism” option. And, according to the court, that label for the termination was “not incorrect.” Additionally, the employer properly handled notice of the possible fraudulent FMLA use (from plaintiff’s co-workers) by performing an investigation before acting. The employee was interviewed and given an opportunity to explain the inconsistencies in her documentation, behavior, and time off work. In response, she was often silent, or said that no one told her that attending the festival was prohibited. The plaintiff did not refute the company’s honest belief that her behavior in the photos was inconsistent with her claims of total disability. As a result of her fraudulent behavior, her employment was terminated, and her subsequent FMLA retaliation claim failed.

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by Sheralee Hurwitz

In December, 2012, the EEOC announced approval of its Strategic Enforcement Plan for 2013 to 2016.  This targeted approach is designed to make the EEOC’s enforcement efforts and charge processing more efficient. Over the last decade, discrimination charges filed against private and public employers has increased by more than 22 percent.  Employers have no choice but to respond when a charge is filed, and that process can be costly.  Since “enforcement plan” cases are the EEOC’s highest priority, employers should be aware of what is currently on the EEOC’s “radar screen.”

The EEOC has identified six focus areas for its enforcement endeavors over the next four years, as follows:

 

1.  Eliminating barriers in recruitment and hiring.

The EEOC will target class-based recruitment and hiring practices that are discriminatory, such as policies against hiring convicted felons where the conviction was not relevant to the job sought.

 

2.  Protecting vulnerable workers, including immigrants and migrants.

The EEOC seeks to increase protections for workers who may be unaware of their rights or reluctant or unable to exercise them.

 

3.  Dealing with developing and emerging employment discrimination issues.

Priority in charge processing will be given to issues associated with demographic changes and new legislation, among other things.

 

4.  Enforcing Equal Pay laws.

As expected, the focus here will be on compensation systems and practices which affect a large number of individuals and discriminate based on gender.

 

5.  Preserving access to the legal system.

The EEOC will target policies and practices that deter exercise of employment rights or which impede the EEOC’s investigative or enforcement efforts, such as poor maintenance of required documentation.

 

6.  Preventing Harassment through Systemic Enforcement and Targeted Outreach.

The EEOC plans an “outreach” campaign aimed at educating employers and employees about unlawful harassment (one of the most frequently raised complaints in the workplace).  This, plus “systemic” enforcement, likely against high profile, large employers is expected to greatly deter future violations.

             Employers should take this opportunity to review internal policies and practices to update them and make sure they comply with applicable laws and regulations.  Employers should also make sure that they maintain proper documentation of personnel recruitment, hiring, discipline, and status changes.  Proper documentation typically is the employer’s best defense to a charge of unlawful discrimination. The EEOC has said that charges “raising priority issues, as with all charges” should be dismissed as soon as the investigator has enough information to conclude that further investigation is not likely to result in a cause finding.

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By Ronald W. Ryan

Mr. Cuddington’s work injury.

On October 25, 2012 the Court of Appeals issued an opinion, for publication, in the matter of Cuddington v United Health Services, Inc. (Court of Appeals docket number 303249). In that matter, the plaintiff was injured in an automobile accident while in the course and scope of his employment on January 7, 2009. He immediately reported the incident to Robert and Rebecca Daniels, officers of his corporate employer, who came to the accident scene.

The next morning, the plaintiff experienced difficulty getting out of bed and decided to seek medical attention. Plaintiff called Robert Daniels and reported that he was sore from the accident. Robert told Plaintiff that he should see a doctor. However, Rebecca Daniels then picked up the telephone and told Plaintiff that he needed to get to work and that if he didn’t get to work he would be fired because he did not call in before his shift. Plaintiff continued to insist that he was very sore and wanted to see his doctor.

Plaintiff ultimately did not come to work but saw his doctor. He was terminated for not calling in sick before the start of his shift. He subsequently filed a lawsuit for retaliatory discharge pursuant to the Worker’s Disability Compensation Act (“Act”) MCL § 418.301(13). Plaintiff alleged that he exercised a right protected under the Act by seeking medical treatment for a work-related injury, and that his employer violated the act when it terminated him in retaliation for exercising that right.
The pertinent part of the Act provides as follows:

A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.

The Trial Court Dismisses the Relation Lawsuit

The Employer filed a motion for summary disposition with the trial court arguing that the Plaintiff could not sustain his retaliatory discharge claim based merely on the intent to claim worker’s compensation benefits in the future. The trial court granted the Employer’s motion and dismissed Plaintiff’s case finding that there was, “no indication here that Plaintiff was fired in retaliation for his worker’s compensation claim. Plaintiff did not even file his claim until after he’d been terminated.” The trial court reasoned that the retaliatory discharge portion of the Act provides an employee with protection from retaliatory discharge only after the employee first files a claim or institutes a proceeding to assert a right afforded by the Act. Due to the fact that Plaintiff had not filed a worker’s compensation claim prior to being discharged, the trial court held that he did not have a cause of action for retaliatory discharge.

The Court of Appeals Reverses

The Michigan Court of Appeals disagreed and reversed the holding of the trial court. The Court of Appeals reasoned that, by alleging that his employment was terminated because he exercised a right afforded him under the Act (the right to seek medical services for a work-related injury), Plaintiff had pled a cognizable retaliation claim under MCL § 418.301(13). The Court of Appeals also found that the evidence supported the Plaintiff’s allegation that he was terminated after suffering a work-related injury and after he had expressed a need for medical services to his employer. The Court of Appeals held that, “Because MCL 418.301(13) contemplates that an employee may pursue a retaliation claim arising from the exercise of this right, the trial court improperly granted summary disposition to the defendant.”

Not a Race to the Courthouse

The Michigan Court of Appeals did not want to create a race to the courthouse doors. The Court of Appeals recognized that the last phrase of the applicable statute carried a significant importance. That last phrase of MCL § 418.301(13) provides, “… or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.” The statute provides that an employee is protected from discharge or other forms of discrimination when he files a complaint or exercises rights afforded by the workers compensation act. Those rights are threefold: the right to receive wage loss benefits, the right to seek medical services, and the right for vocational rehabilitation. The Court reasoned that, by adding that last phrase to the statute, the legislature recognized that an employer could circumvent the goals of the Act by firing an employee before the employee had an opportunity to formally initiate workers compensation proceedings: “Had the statute failed to include the final alternative clause, the result would be a ‘foot race,’ with the winner being determined by the event to first occur-either the firing of the employee or the filing of a claim with the worker’s compensation board.”

A Delicate Application of the Law

However, the Court of Appeals was cautious in its application of the law to this claim of retaliation. There is binding precedent which precludes a retaliatory discharge claim that is premised upon an employee’s anticipation of a future claim for benefits. The Court of Appeals reasoned that its conclusion was consistent with this binding precedent because the Plaintiff in this case had exercised his right for medical services (a right of afforded to him by the Act) before his employer terminated or otherwise discriminated against him.

The Court concluded:

“We hold that filing a petition for workers compensation benefits is not a prerequisite to all retaliatory discharge claims under MCL 418.301(13). Rather, an employee who exercises a right afforded under the act and is subsequently terminated or discriminated against in retaliation may maintain an action. Furthermore, the Act affords an employee the right to seek medical services, when needed, for work-related injuries. In this case, the trial court erred in holding that summary disposition was appropriate based on plaintiff’s failure to prove that he was terminated in retaliation for filing a petition for worker’s compensation benefits.”

Lessons for Employees

In the event of a work-related injury, it would behoove an employee to immediately make a verbal (if not written) statement to their employer that he or she intends to seek all benefits under the Worker’s Disability Compensation Act.

Lessons for Employers

Termination in light of a work-related injury is a delicate matter. There is an immediate desire, especially among small business employers, to terminate employment and fill a vacant position once an employee cannot return to work, even for a short period of time. But, can the vacancy be filled without a termination? Lost time incurred by key employees or by employees who have numerous and repeated medical issues, is often met with suspicion, doubt, and frustration on behalf of the employer. Cooler heads must prevail.

In the case outlined above there is an indication that Rebecca Daniels rushed to terminate the Plaintiff. It is important to adhere to a consistent discipline policy when an employee misses his or her shift. Anytime an employee asserts his or her workers compensation rights, termination or any other adverse employment action should not follow. Employers are encouraged to file an Employer’s Notice of Injury and turn the claim over to the insurance carrier. Admittedly, and more often, employers are choosing to resolve small lost time claims out of their own pockets in order to avoid a negative experience ratio in their insurance premiums. Even then, employers should be slow to terminate.

In closing, work injuries and termination are a potential, flammable combination. What’s worse is there may be no insurance coverage when an employee prevails on such a claim. Extreme caution is advised.

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Whitney A. Kemerling

A recent federal court decision has explored yet another legal issue related to social media: whether an individual’s LinkedIn account is considered personal property or professional business property.

In Eagle v. Morgan, a Pennsylvania woman created a LinkedIn account listing Edcomm as her current employer. The woman shared her LinkedIn password with a coworker who assisted her in maintaining her account. Edcomm had a general policy that when an employee left the company, the company owned the LinkedIn account. Edcomm could then do what it pleased with the account so long as the identity of the former employee was not stolen.

The employee was subsequently fired by Edcomm and the coworker with her password accessed her account and changed the password, effectively freezing the woman out of her LinkedIn account.

The woman sued her former employer under a federal anti-hacking statute, the Computer Fraud and Abuse Act (CFAA), alleging loss of business opportunities and damage to her reputation. A federal judge ruled that, although the employer’s actions violated the CFAA, the woman’s damages were too speculative and were not the type compensable under the CFAA.

While Michigan does have an anti-hacking statute, Michigan courts have yet to rule on any issues similar to this one.

Moral of the story for both employers and employees: make sure you put in writing whether a social media account is the employee’s personal property or belongs to the employer.  Also, beware of the possible consequences of sharing your password with a coworker.

 

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Sheralee S. Hurwitz

The Americans With Disabilities Act prohibits discrimination against individuals with disabilities and covers private employers with fifteen or more employees. The Americans With Disabilities Amendment Act of 2008 became effective in January, 2009. The law made several significant changes, including changes to the term “disability.” On September 11, 2012, two EEOC Commissioners are scheduled to begin a training tour to explain and discuss enforcement changes.

Currently, the EEOC appears focused on disability discrimination claims and employer efforts to consider and make reasonable accommodations for disabled employees. Employers should review their policies regarding evaluating applicants for employment and employees who have disabilities. The determination of whether a person can perform the essential functions of the job with or without reasonable accommodation is not always simple. It can be equally difficult to show to an outside reviewer that reasonable accommodations were carefully considered and in some cases attempted, by the employer.

An employer must be able to adequately demonstrate that there was an interactive dialogue with the applicant or employee to identify a reasonable accommodation that would allow the individual to perform the job. An employer has a duty to provide a reasonable accommodation that is effective to remove a workplace barrier to the disabled employee’s ability to do the job.

However, the employer does not have to provide the reasonable accommodation that an individual with a disability specifically wants. Where two or more suggested accommodations are effective, primary consideration should be given to the individual’s preference but the employer may choose the easier or less expensive one to provide, so long as it is reasonable. An employer also does not have to require accommodations that would result in an undue hardship (significant difficulty or expense). If an employer determines that the cost of a reasonable accommodation would cause an undue hardship, it should consider whether all or some of the accommodations cost can be offset. Even if a particular accommodation would result in an undue hardship, however, an employer should not assume that no accommodation is available. It must consider whether there is another accommodation that can be provided without undue hardship. Additionally, according to the EEOC, an employer should consider whether there are any available opportunities to defray the cost of the accommodation. The EEOC suggests that vocational rehabilitation agencies or disability organizations may be able to provide accommodations at little or no cost to the employer. The EEOC also has identified federal tax credits and deductions as possible offsets to the cost of accommodations.

In assessing possible accommodations, an employer is not required to entirely alter its work environment in order to reasonably accommodate a disabled employee. An employer does not have to remove an essential job function (a fundamental job duty), lower production standards, or excuse violations of conduct rules that are job-related to accommodate an employee. Additionally, there are certain limited circumstances where an employer may prohibit an employee with a disability from doing a job because of safety concerns. However, the employer must consider whether the employee “would pose a direct threat;” specifically, a significant risk of substantial harm to herself or others (when working in a particular position, even with a reasonable accommodation). An employer must consider the following to assess if an employee or applicant poses a direct threat:

• The duration of the risk involved;
• The nature and severity of the potential harm;
• The likelihood the potential harm will occur;
• The imminence of the potential harm;
• The availability of any reasonable accommodation that might reduce or eliminate the risk.

Working within the EEOC regulations and periodically issued guidance, on a practical basis, can become difficult. Therefore, it is wise to contact counsel to make sure your existing policies and practices are current and comprehensive.

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A recent report from the NLRB’s Office of the General Counsel (May 30, 2012) addressed the “hot topic” of Social Media Policies in the workplace.  It will be of particular interest to employers with unions or with the potential for unionizing activity.   Other employers will find the report useful as it discusses an NLRB “approved” template Social Media policy.

The report discusses seven cases involving employers’ social media policies and challenges to them as having violated the National Labor Relations Act, because the policies, or portions of them, were viewed as chilling employees’ exercise of Section 7 rights in violation of the Act.  It seems that most often the finding issued was that the policy language was overbroad.    Such overbroad policy language might deter employees from “speaking” on-line about issues such as wages or conditions of employment, because they would fear discipline.  As a result, their rights would be unlawfully restricted.

If the policy language was too broad, even a “savings clause” included in the social media policy was not enough to avoiding the determination that it was unlawful.  Such “savings clause” language included statements that the policy:

“.  .  . will not be construed or applied in a manner that improperly interferes with employee’s rights under the National Labor Relations Act.”  OR

“ . . . will not be interpreted or applied in a way that would interfere with the rights of employees to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.”

The report contains a copy of an employer’s revised policy that was deemed “lawful” by the NLRB.   The policy language used in the employer’s revised policy was NOT overbroad or ambiguous.  Where certain types of “posts” related to employment or work-related matters were prohibited, the employer’s policy provided a list of examples which apparently made it sufficiently clear that Section 7 conduct (which the NLRA protects) would not be at risk of violating the policy.

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Depending on the industry, worker’s compensation insurance can be a significant expense. So, why is it mandatory? What if there was no worker’s compensation insurance at all? There was at time, just over 100 years ago when this was true. As you will discover, employers and employees are far better off with it, than without it.
Worker’s Compensation insurance is a product of the Industrial Revolution. Before its existence, there were gross disparities between the amount that an injured worker recovered and the amount that employer’s had to pay for those injuries. An example is instructive.

During the late 1800’s copper was heavily mined out of Michigan’s Upper Peninsula. Workers and their families migrated from Europe to work the mines. It was a dangerous work environment. Explosions and cave-ins were common. From 1905 through 1911, the mines in the United States killed an average of sixty-one men per year, or more than one per week. At the end of this unfortunate run, one out of every ten men killed in the United States mining industry died on the Keweenaw Peninsula.[1] Prior to the advent of worker’s compensation insurance in Michigan in 1912, an injured miner could sue his employer for injuries incurred on the job, but the employer could defend the case with the defenses of assumption of the risk, contributory negligence and the fellow servant rule.

Pursuant to the assumption of the risk doctrine, the employer did not force the miner into the mine, and the miner understood the dangers associated with the work; therefore the miner could not sue the mine owner.

On the other hand, explosions and cave-ins left widows and children without fathers. Savvy attorneys then entered the scene. Coupled with sympathetic judges and juries, the widows and children began to see significant recoveries. Recoveries so large, and unpredictable, employers were negatively affected. Some miners, or the families that were left behind, would experience significant recoveries. Others would get nothing. It became exceedingly difficult for mine owners to budget and turn a profit. The same disparities were experienced throughout all industries, especially those involving heavy manual labor or extremely dangerous activities.

The answer, of course, was the advent of mandatory workmen’s compensation insurance. (It was not until 1969 that the legislature changed the title from “workmen’s” to “worker’s”.) Next year marks Michigan’s 100th year anniversary of mandatory worker’s compensation insurance. The law is really a tradeoff between the rights and duties of the employer and employee. No longer can the employer defend on the basis that the injury was caused be the employee’s own negligence, or by a co-worker, or by an assumption of the risk. In exchange thereof, the employee receives weekly wage loss benefits that equate his weekly take home pay. Further, the employee is not entitled to pain and suffering damages. All he can recover for his injury are wage loss, medical and vocational rehabilitation (re-training) benefits. For amputations, employers are to pay a specific number of weeks for the limb that is lost. The most that a fully dependent widow(er) may recover is 500 weeks of wage loss benefits.

In 2010, 24,097 Michigan workers were injured on the job and experienced loss time of 7 days or more. In the year 2000, that number was 54,207. Last year, the average litigated case settled for $65,868.14. Michigan is presently served by 17 Worker’s Compensation Magistrates.[2] Clearly the employment environment is more predictable and reasonable with it than without it.

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