Both the City of San Diego and the State of California “Clarify” Their Sick Leave FAQs

CaliforniaAs we recently reported regarding the City of Los Angeles, both the City of San Diego and the California Department of Labor Standards Enforcement (“DLSE”) have updated their “Frequently Asked Questions” (“FAQs”) related to the respective local and state sick leave requirements. Below are some of the more salient points from each.


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EEOC and Orion Energy Systems, Inc. Settle Wellness Case

On April 5, 2017 the Equal Employment Opportunity Commission (EEOC) announced that it had reached a settlement with Orion Energy Systems, Inc. (Orion) relating to the EEOC’s claims that Orion’s wellness program violated the American with Disabilities Act (ADA) because participation was involuntary, and that Orion retaliated against an employee who objected to the program. See

This settlement comes after the mixed ruling by the U.S. District Court for the Eastern District of Wisconsin. See Federal Court Simultaneously Rejects and Upholds EEOC’s Positions on Wellness Programs – Rejects Employer’s ADA “Safe Harbor” Defense.  Although U.S. District Judge William C. Griesbach ruled in September that the wellness program was voluntary—because the employee had a choice between participating in the program or paying full price for health benefits—the Court determined that there was a factual issue regarding whether Orion retaliated against the employee who objected to the program.

Under the terms of the settlement, Orion will pay $100,000 to the terminated employee and has agreed to refrain from implementing a wellness program that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA, or maintaining a program that imposes an incentive upon the worker of more than 30% of the premium cost for self-only insurance coverage. In addition, Orion has agreed not to retaliate or make threats against any employee for raising questions as to whether the wellness program is compliant, and it will train Orion executives and employees on the scope of the settlement.

The settlement is the result of lengthy negotiations and a significant exchange of information. According to Greg Cochanour, regional attorney for the Chicago District Office of the EEOC, “The EEOC has always maintained that wellness programs, done right, are a good thing.  But they have to be voluntary.  Through this settlement, Orion agrees that its future wellness programs will be done right.”

“Goldilocks” Work Environment Not Required Under the ADA

Just over two decades ago, when the ADA was in its infancy and this blogger was a summer associate heading into his final year of law school, I attended a hearing in federal court where the judge was considering a motion to dismiss the ADA claims of a plaintiff-employee.  The plaintiff was claiming, among other things, that his employer had failed to reasonably accommodate him under the Act.  His contention was that the job for which he was hired was too stressful and therefore exacerbated his alleged disability, rendering him unable to effectively perform the job.  When he asked for an accommodation, the employer reassigned him to a considerably less stressful job.  However, the plaintiff complained, the new job wasn’t stimulating enough to keep him motivated to work; in other words, it wasn’t stressful enough.  The judge didn’t buy the plaintiff’s Goldilocks-based theory that he was entitled to a job with a “just right” amount of stress and, in fact the judge’s clerk, paraphrasing an Eagles song popular at the time, commented afterward that the plaintiff should just “get over it.” Fortunately, twenty years later the courts still don’t buy the theory that a generally stressful environment warrants an ADA accommodation.

For example, in Hargett v. Florida Atlantic University Board of Trustees, 2016 U.S. Dist. LEXIS 154822 (S.D. Fla. Nov. 8, 2016), the plaintiff, a university employee, suffered from epileptic seizures.  When the plaintiff began reporting to a new supervisor, she concluded that he was treating her in a uniquely harsh manner, scrutinizing and micromanaging her work and causing her to have seizures.  Over the next several years, the relationship between the plaintiff and the supervisor continued to deteriorate.  Ultimately, the plaintiff requested a multi-pronged accommodation for her epilepsy including, but not limited to, a request that the supervisor “cease his hostile confrontations” and that either the university “sensitize” the supervisor as to his dealings with women with epilepsy or move the supervisor out of her chain of command.  The university agreed to some of the plaintiff’s requests but not to any of these.  The plaintiff then filed an EEOC charge, followed by a lawsuit.

In granting the university’s motion for summary judgment, the trial court noted that although specific stressors may in some cases be legitimate targets of accommodation, an employee cannot immunize herself from stress and criticism in general; that appeals to work in a more nurturing work environment, not directed at any particular person, are not sufficiently specific accommodation requests; and that the obligation to make a reasonable accommodation does not extend to providing an “aggravation-free” or “peaceful calm” environment.  In this particular case, the plaintiff did not identify any specific stressors that her supervisor created; rather, she generally characterized his management style as a series of “hostile confrontations.”  Thus, her corresponding request for “calm, fair, non-confrontational treatment” was deemed unreasonable and insufficiently specific to constitute a valid ADA accommodation request.

Therefore, while employers need not provide employees with a stress-free working environment or, as Goldilocks might desire, one with “just the right amount” of stress, care nevertheless should be taken to ensure that management is not creating undue stress on, or hostility toward, an employee in response to a known (or perceived) disability because, even if “de-stressing” the workplace doesn’t constitute a reasonable accommodation, the treatment of the employee might be deemed unlawful disability-based harassment.  Accordingly, employers are encouraged to thoroughly examine and respond to any accommodation request, preferably with the guidance of human resources professionals and/or legal counsel.

What Am I Doing Wrong?? Common FMLA Mistakes.

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the seventh in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Forgetting to consider whether an employee is entitled to FMLA leave based on an in loco parentis relationship.

When an employee requests FMLA leave to care for a family member who is not obviously a child or parent, an initial reaction by the employer might be to deny that request. Under the FMLA, the definitions of “parent” and “son or daughter” includes any other individual who stands in loco parentis (“in the place of a parent”) to the employee or child.  A legal or biological relationship is not required.  Failing to recognize the in loco parentis relationship could result in an FMLA interference claim.

In Fitzgerald v. Shore Memorial Hospital, 92 F. Supp. 3d 214 (D.N.J. 2015), the employee argued that the employer interfered with her FMLA rights when it denied her FMLA request to care for her sick aunt. The employer asked the employee to validate her relationship with the woman the employee referred to as her “adopted mother,” her “aunt,” and her “stepmother.” The employee offered to bring report cards from high school to show that her aunt qualified under the FMLA’s in loco parentis rule, but she ultimately failed to do so.  The employee asserted that her aunt had “signed every paper for [her] from Kindergarten up until [she] was out of school.” The court found in favor of the employer, finding that the employee did not fulfill the employer’s request to provide sufficient information to support that she was entitled to FMLA leave based on an in loco parentis relationship.

In a recent case, Coutard v. Municipal Credit Union, 848 F.3d 102 (2d Cir. 2017), the court found that an employer had an obligation to specify the information that it needed to determine whether the employee’s ill grandfather satisfied in loco parentis standing.  The employee’s grandfather raised him since before the age of four until the age of fourteen. During that time, the employee’s grandfather fed him, clothed him, paid for his education, took him to school, and provided emotional and social support. The employer denied the employee’s FMLA leave request on the reasoning that the FMLA did not apply to grandparents.  The employee admitted that he did not inform his employer that his grandfather might stand in loco parentis to him. Nonetheless, the court determined that the employer failed in its obligations (a) to provide the employee with information regarding his right to seek FMLA leave based on an in loco parentis relationship, and (b) to request further information from the employee.

Employers should act diligently when an employee requests FMLA leave to care for an individual who is not obviously a parent or child, and should explore whether an in loco parentis relationship exists.  An employer may require an employee to provide reasonable documentation or a statement of the family relationship. Employers should keep in mind that a simple statement asserting that the requisite family relationship exists is all that is needed for in loco parentis situations where there is no legal or biological relationship.

The United States Department of Labor issued an Administrator’s Interpretation that further explains the in loco parentis relationship, in the context of the definition of son or daughter, which provides helpful insight:

The City of Los Angeles Quietly Updates Its Rules and FAQs Regarding the Minimum Wage and Paid Sick Leave Ordinance

California          The sick leave landscape is constantly evolving, and the City of Angeles is no exception to that rule. This past month the City of Los Angeles Office of Wage Standards (“OWS”) revised its rules and regulations (“Revised Rules”) as well the FAQs regarding its Minimum Wage and Paid Sick Leave Ordinance (the “Ordinance”).  As reported on our website (click here), the City’s Ordinance originally was effective July 1, 2016. The OWS has now provided further clarification regarding several issues as detailed here:

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Are You Coming In Today? An FMLA Intermittent Leave Toolkit

            Intermittent leave continues to present some of the most exasperating FMLA issues. In March, the San Diego-based Disability Management Employer Coalition (DMEC) issued a white paper showing the findings of its annual 2016 Employer Leave Management Survey, which involved 1,132 U.S. employers of all sizes. According to the Society for Human Resource Management (SHRM), “tracking intermittent FMLA leave” was one of the issues cited most by these employers as problematic, with thirty-five percent of survey respondents categorizing it as a “difficult” or “extremely difficult” problem.

Even in the best of circumstances – when an employee is cooperative, communicative and wants to work – unpredictable absences can impose burdens on coworkers, supervisors, and operations. Employers do not have many tools at their disposal when it comes to managing FMLA intermittent leave, so they should make the most of them. Some tips are provided below.

  • Be sure the employee truly meets all eligibility criteria to take FMLA leave. Otherwise, any leave provided is gratuitous, and certain FMLA-specific rules – such as the ability to make reductions from an exempt employee’s pay in partial-day increments – will not apply.
  • If the employee has taken some intermittent leave prior to formal FMLA designation, consider designating some of the leave retroactively, if permissible under FMLA rules.
  • Closely scrutinize information provided by the employee’s (or family member’s) health care provider on Department of Labor forms WH-380-E or WH-380-F. The physician must state that an employee’s absences are due to a FMLA “serious health condition,” AND that intermittent leave is medically necessary. If insufficient information is provided, work with the employee to obtain the necessary information using the procedures described in the FMLA regulations. It can be difficult to obtain follow-up information from a physician after intermittent leave has begun, so it is important to use the initial certification process to obtain all of the information the company may need.
  • Be sure to record all FMLA absences as FMLA leave, and count that leave against the employee’s FMLA entitlement. Each time the employee is absent or late, ask whether the absence is due to the approved reason for FMLA leave. Employers cannot require a doctor’s note for each absence.
  • If an employee is using paid time off during periods of intermittent FMLA leave, be sure to make appropriate reductions from the employee’s paid leave bank. If an employee has no paid leave available, the employer generally can “dock” the employee’s pay, even for exempt employees.
  • An employee taking intermittent FMLA leave can still be made to adhere to the company’s usual call-in procedures. Also, advance notice of absences should be given whenever possible, in accordance with company policy and as permitted by the FMLA regulations.
  • An employee who is absent for doctor’s appointments or other treatment is required, whenever possible, to schedule these treatments in a manner so as not to unduly disrupt the employer’s operations. Scheduling discussions should be diplomatic, however, to avoid claims of interference with FMLA leave.
  • An employee taking FMLA leave for purposes of planned medical treatment can be transferred temporarily to an alternate position that better accommodates the need for leave. The position must have the same hourly pay and benefits, but can have different duties. An employer cannot transfer the employee in order to discourage the taking of FMLA leave, and the employee must be restored to his or her original position when the need for intermittent leave ends. Note that the same rule does not apply to employees who require unpredictable absences — the FMLA regulations do not provide for a transfer in those circumstances.
  • Consider obtaining recertification when permitted by the FMLA regulations. For example, if an employee’s doctor estimated that he will be absent about twice a month, for 2-3 days each time, but the employee’s absences are longer or more frequent than that, consider seeking recertification on the ground that the frequency and duration of absences constitutes a “significant change in circumstances.”
  • Employers cannot require a fitness for duty certificate each time an employee returns from an intermittent FMLA absence. However, an employer can require such a certificate once every 30 days if there are reasonable safety concerns regarding the employee’s ability to perform his or her duties due to the serious health condition for which the employee took leave.
  • If the employee works in a state or locality with its own FMLA law, be sure to comply with that law as well.

Third Circuit: No Direct Evidence Needed for Mixed-Motive Jury Instruction in FMLA Retaliation Cases

A former employee alleges that he was terminated because he exercised his right to take intermittent leave under the Family and Medical Leave Act. His former employer asserts that his FMLA leave had nothing to do with his termination. Rather, the employer claims, he was let go simply because his position was eliminated. At trial, the employee fails to present any direct evidence that his use of FMLA leave was a motivating factor for his termination. Is the employer in the clear?

According to the U.S. Court of Appeals for the Third Circuit, in Philadelphia, the answer is “no.” In Egan v. Delaware River Port Authority, a former employee alleged that he was terminated in retaliation for exercising his right to take intermittent FMLA leave for migraine headaches. The employer countered that he was terminated (along with another employee) because his position was eliminated, and that his use of leave had nothing to do with that decision.

At trial, plaintiff did not present any direct evidence that his use of leave motivated the employer’s termination decision. Nonetheless, at the close of trial, the plaintiff requested that a “mixed-motive instruction” be given to the jury. This instruction would allow the jury to find for the plaintiff if it determined the employer relied at all on an unlawful reason (i.e., plaintiff’s use of leave) when making the termination decision — even if there was another, lawful reason for the decision. The district court refused to issue such an instruction because there was no direct evidence the employer’s decision was motivated, even in part, by the plaintiff’s use of leave. After the jury returned a verdict for the defense, the plaintiff appealed.

The Third Circuit reversed. It held that a plaintiff “does not need to prove that invoking FMLA rights was the sole or most important factor” motivating the adverse action. The employee needs to show only “that his or her use of FMLA leave was a ‘negative factor’ in the employer’s adverse employment action.”

The Court went on to hold that, to be entitled to the mixed-motive instruction, the plaintiff “was not required to produce direct evidence” that his use of leave was a negative factor. Instead, such an instruction was warranted if there was any evidence “from which a reasonable jury could conclude that … [the plaintiff’s] use of FMLA leave was a negative factor in the employment decision” — even if that evidence was circumstantial.

This rule is not applied uniformly throughout the country. Some jurisdictions recognize “mixed-motive” claims, while others continue to require plaintiffs to prove “but for” causation to prevail in FMLA retaliation cases. Egan highlights the need for employers (and their counsel) to be mindful of the applicable law in any jurisdiction(s) in which they are located and to plan accordingly, including when proposing jury instructions at trial.

4.5 Million Disability Discrimination Verdict Against Auto Dealer Who Failed to Investigate

FloridaA federal jury in Florida has awarded $4.5 million against an auto dealer for claims of disability discrimination under the Florida Civil Rights Act (FCRA). Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.D. Fla. Feb. 22, 2017). The verdict consisted of $680,000 in lost wages and benefits, $600,000 for emotional pain and mental anguish, and $3,220,220 in punitive damages. The jury found the employer discriminated against Michael Fields after he returned from a medical absence for treatment of kidney cancer. The jury rejected the plaintiff’s claims of age discrimination pursuant to the Age Discrimination in Employment Act.

Axel was employed by Fields Motorcars of Florida, Inc. for approximately 10 years. According to court records, he had not received any disciplinary or corrective action in that time. To the contrary, he had received awards for his performance. After Fields was diagnosed with kidney cancer, he underwent experimental treatment and was able to return to work where he was capable of performing all of his duties. Axel further claimed that he was on pace to have the most productive year at Fields. However, he was repeatedly passed up for promotions, and was demoted and terminated for failure to follow company policies and processes.

In its decision to terminate Axel, the employer relied upon a letter that dated back to the beginning of his employment, approximately 10 years earlier. A Vice President and General Manager claimed that Axel had forged a document that provided his son access to auto auctions without authorization. He performed no independent investigation and never spoke to Axel prior to his termination. Axel claimed that while he signed the letter, he had authorization to do so from management. There was no suggestion that Axel’s son improperly used his authority to purchase cars on behalf of Fields.

This case highlights the importance of thorough investigations by management prior terminations, especially with respect to employees with a protected status or disability and those who bring an internal complaint of discrimination. When a company lacks the expertise to conduct an investigation on its own and fails to enlist assistance, it can pay the price at trial.

Congress Proposes Adding Parental Bereavement Leave to FMLA

On March 16th, a bipartisan group of Representatives, which included Paul Gosar, Don Beyer, Martha McSally, Brad Schneider, Tom Suozzi and Barbara Comstock, introduced the Parental Bereavement Act of 2017, also known as the Sarah Grace-Farley-Kluger Act. See H.R. 1560.  This Act would add the “death of a child” as a covered life event under the Family Medical Leave Act (“FMLA”) and provide parents who are grieving the loss of a child with up to 12 weeks of unpaid leave to heal from the initial trauma of losing a child and then return to work.

Currently, the FMLA provides 12 weeks of unpaid leave for certain family events, such as the birth of a child, but not for the traumatic event of losing a child. Adding the death of a child as a covered event would give parents the security they need in knowing that they can take time to grieve and their job will be protected.

Similar bills have been introduced in Congress, but so far, none have been passed. However, as Congressman Gosar pointed out, “Expanding the FMLA to cover parents coping with the devastation of losing a child is beyond reasonable and should have been included when the legislation was originally passed.”

Fear of Failure – Terminating Employees with Extensive FMLA and non-FMLA Absences

It’s a scenario that frustrates many employers.  An employee with extensive intermittent FMLA absences, possibly including absences for different covered reasons, is also absent for many unspecified or unprotected reasons which lead to progressive discipline.  The employee’s absences eventually reach the point of warranting termination and the employee does not provide additional medical information to address the unprotected absences.  The employer is prepared to proceed with termination but is concerned about whether it did enough to track protected absences and communicate with the employee to avoid FMLA interference and retaliation claims.

Employers are in a much better position to defeat FMLA interference and retaliation claims with meticulous tracking of time off and communication with the employee regarding unexcused absences.  The U.S. Postal Service provided a recent example when the Court dismissed a former employee’s claim in Dulany v. U.S. Postal Service (N.D. OK March 14, 2017).  Ms. Dulany had approximately 49 intermittent FMLA absence to care for her mother.  She was also absent approximately 47 times due to her own FMLA covered health condition.  During the same time period, Ms. Dulany received multiple warnings for failure to report to work, arriving late and leaving early without following proper procedures.  Ms. Dulany then requested a leave for approximately a month and provided a note from her doctor but did not request FMLA.  The USPS sent her documents regarding the information she would need to submit for the FMLA to apply but she did not provide the requested information.

The Court dismissed Plaintiff’s FMLA claims because there was no evidence she was actually denied leave.  The USPS has a policy in place for employees to call in and report all FMLA absences.  The evidence showed that when Ms. Dulany utilized that system, the absences were tracked as FMLA.  Ms. Dulany claimed that her supervisor once said they did not have to honor her request for time off under the FMLA.  The employer’s records however reflected that the days at issue were in fact counted as FMLA and the Court disregarded the alleged comments by the supervisor.  Regarding the employee’s month long absence, she claimed that employees do not need to specifically mention FMLA to seek protection and she provided sufficient notice of her need for leave.  While Ms. Dulany was correct regarding her obligations under the FMLA, the USPS demonstrated that it took proper steps to provide her the required FMLA paperwork and Ms. Dulany failed to follow the employers’ usual leave policies and procedures in response.  Her submission of a doctor’s “note” was not sufficient to provide FMLA protection.

This case demonstrates the importance of thorough record keep relating to FMLA absences and related communications with the employee.  Despite the employee’s attempt to create a factual dispute with both the supervisor’s comments and the employer’s handling of the month long leave, the employer’s records demonstrated that it counted all reported FMLA absences as protected, that no unprotected absences were used against her, and that it met its obligation to provide the employee an opportunity to obtain FMLA coverage for the month long unprotected leave.