Is it compensable time when an employee takes frequent, 15-minute breaks each hour due to the employee’s serious health condition? Today, the United States Department of Labor (DOL) answered this question in a hot-off-the-press opinion letter, verifying that FMLA-covered breaks are not compensable.

In today’s opinion letter, the DOL confirmed that frequent, 15-minute breaks taken each hour and necessitated by an employee’s serious health condition is uncompensated time because the breaks are taken for the employee’s, not the employer’s benefit. The DOL noted, however, that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive:  “For example, if an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.”

The opinion letter sets forth the legal principles behind the compensability of short rest breaks that primarily benefit an employer and distinguished FMLA-leave to take frequent breaks as primarily for the employee’s benefit due to his or her serious health condition. The DOL cited both the unpaid nature of FMLA leave and a case where the court found an accommodation of frequent rest breaks due to an employee’s back pain need not be paid.

In 2010, the DOL stopped issuing opinion letters in exchange for more broad-based Administrator Interpretations. Then in June 2017, the DOL announced it would reinstate issuing opinion letters and updated its website to assist employers and employees in requesting a letter. The DOL has issued 19 opinion letters since reinstating the practice, all related to the Fair Labor Standards Act (FLSA). Today’s opinion letter was also issued pursuant to the FLSA, but addresses a topic that employers struggle with when administering unpaid, intermittent FMLA – whether and how to legally reduce pay when an employee is intermittently absent.

Opinion letters can be a great tool for employers to navigate tricky FMLA and FLSA compliance issues. Receiving an opinion letter can later  establish a good faith defense against liability. If you have a tricky FMLA question, Jackson Lewis attorneys can help untangle the web of leave of absence laws and regulations and assist in drafting a request for an opinion letter when warranted.

Just three years after the enactment of California’s paid sick leave law under the Healthy Workplace Healthy Family Act of 2014 (AB 1522), a new bill has been introduced seeking to increase the amount of sick leave employers must provide employees under California law. The bill, AB 2841, was introduced on February 16, 2018, by Assemblywoman Lorena Gonzalez Fletcher. Assemblywoman Gonzalez Fletcher authored California’s existing paid sick leave law.

Continue Reading Sick Leave Entitlements on the Rise in CA? A Pending CA Bill Is Looking to Do Just That.

ADA Title III claims have become a trap for many unsuspecting businesses. The claims often lead to protracted litigation driven by attorney fees rather than the underlying issue.

A recent decision from the U.S. Court of Appeals for the Eighth Circuit offers a potential “fix” for employers. In Davis v. Anthony, Inc. Case No. 16-4051 (8th Cir. March 29, 2018), the court affirmed the dismissal of a disabled patron’s Title III lawsuit based on the restaurant’s quick remedial action.

The complaint specifically alleged the restaurant did not have the requisite number of accessible parking spaces, the parking spaces lacked access aisles and two spaces lacked the requisite signage.

The defendant remedied the alleged violations and filed a motion to dismiss based on mootness and standing. Title III of the ADA only allows individual plaintiffs to seek injunctive relief (e.g., an injunction ordering the defendant to fix the accessibility violations) and reasonable attorneys’ fees. Thus, the defendant argued that there was not a case for the court to decide, because the issues raised in the Complaint no longer existed.

The U.S. District Court for the District of Nebraska granted the motion, dismissed the case, and denied the plaintiff’s request for attorneys’ fees.

On appeal, the plaintiff argued the lawsuit was not moot because the defendant’s evidence had not addressed whether the slope of the parking spaces complied with the ADA. The plaintiff claimed that the defendant waived its right to argue the claims were moot, because it did not provide evidence of remediation when it filed the motion to dismiss. The plaintiff also argued the court prematurely dismissed the lawsuit, and should have allowed her to conduct discovery to determine what other ADA violations existed and about the issues raised in the lawsuit.

The Eighth Circuit rejected each of these arguments. First, the plaintiff did not reference the slope of the parking space in the complaint, so it was not part of the lawsuit. Second, courts have wide discretion to accept evidence regarding jurisdictional issues, like mootness. Third, the plaintiff was not entitled to discovery regarding potential ADA violations inside the restaurant, because she had not gone into the restaurant and was not injured by any alleged barriers inside (e.g., she lacked standing). The plaintiff also failed to establish she was entitled to additional discovery regarding the issues raised in the complaint.

Concerns about abusive practices in Title III litigation has garnered the attention of several states, including Arizona, California, Florida and Minnesota. Federal law does not require Title III plaintiffs to give businesses notice or an opportunity to remedy the alleged violations before filing suit. And, some businesses are forced to choose between settling for an amount that may be more than what the plaintiff could recover under the law and potentially paying thousands of dollars in attorney’s fees to defend the case.

This decision is a good reminder that there may be a third option – fix the issues specifically raised in the complaint and seek to dismiss the case as moot.

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

Not fully analyzing the impact of an adverse employment action taken close in time to FMLA leave.

The FMLA is not designed to shield an employee from termination to which the employee would otherwise be subject.  However, employers should be aware of the significant role that “temporal proximity” of termination to a protected leave can play in an FMLA lawsuit.  Avoiding liability is sometimes more complicated than simply being justified under the law.

In Ethridge v. Nichols Aluminum – Ala., LLC, No. 5:14-cv-02126, (N.D. Ala. Aug. 31, 2016), the employee was terminated immediately upon returning to work from FMLA leave.  The court stated that all an employee needed to show to state a claim for FMLA retaliation is that the employee took protected leave and was terminated shortly after returning to work.  The court stated,  “the timing of Ethridge’s request to return to work is close enough in temporal proximity to establish a causal connection between his FMLA leave and his termination.”

However, in Lopez v. Lopez, et al., No. 2:10-06374 (D.N.J. Feb. 4, 2014), even though the employee, as in Ethridge, had stated a valid FMLA claim due to close timing, the employer was able to respond with evidence of a valid reason for termination, unrelated to FMLA leave.  In Lopez, the employer was able to establish that the reason for termination was based on the employee’s disruptive, unprofessional conduct, and not related to FMLA leave.

In Lopez, the court ultimately found that the employer acted lawfully – but only after the employee filed a federal lawsuit and the parties engaged in litigation.

Because the courts place significant importance on the timing of FMLA leave to an employee’s termination from employment, employers should fully analyze the potential impact of such an employment decision before moving forward with termination or other adverse employment action, such as discipline. Clear documentation supporting the non-FMLA reason for an adverse employment action is crucial in supporting the non-FMLA reason for termination.

Sometimes the actions a court doesn’t take can have a very big impact. The Supreme Court’s April 2, 2018 decision not to review a recent Seventh Circuit ruling is just one of the cases.

In Severson v. Heartland Woodcraft, Inc., a widely-publicized decision relating to the availability of extended leave as a reasonable accommodation under the Americans with Disabilities Act, the Seventh Circuit held that a two-to-three month leave of absence, following the exhaustion of an employee’s leave entitlement under Family and Medical Leave Act, was not a reasonable accommodation under the ADA. In doing so, the Seventh Circuit characterized the ADA as an “anti-discrimination” statute, as opposed to a “leave entitlement” statute.  The Severson decision was recognized as a major victory for employers in the Seventh Circuit, who have long been forced to navigate the ADA’s mandate of leave as a reasonable accommodation with little concrete guidance regarding the duration of leave to be provided. Although the Seventh Circuit’s decision made clear that under certain circumstances, leave may still be an appropriate reasonable accommodation under the ADA, it nonetheless provides a level of clarity regarding employers’ obligations under the ADA that did not previously exist at the federal appellate level.

Of course, the Seventh Circuit’s decision would have been of little value if it were overturned by the U.S. Supreme Court.  In his Petition to the U.S. Supreme Court, Severson asked the Court to resolve the issue of whether there exists a per se rule that a finite leave of absence cannot be a “reasonable accommodation” under the ADA.  In response, Heartland Woodcraft framed the issue as one of whether an individual who requires a multi-month leave following three months of FMLA leave can be considered a “qualified individual” under the ADA, in light of the fact that the extended leave would not enable the employee to perform the essential functions of his or her job.

Ultimately, the U.S. Supreme Court declined to review the Seventh Circuit’s decision and, in doing so, at least for the moment, leaves in place the Seventh Circuit’s finding that the ADA does not, as a matter of course, require employers to provide a multi-month leave following the exhaustion of FMLA leave.  The Tenth and Eleventh Circuits have adopted similar positions in ADA continuous leave accommodation cases.  See our blog posts of those decisions here and here.

Sometimes what you don’t know can help you. In Guzman v. Brown County, a 911 Dispatcher who was fired after being late repeatedly had her FMLA interference and retaliation claims sent to dreamland by the Seventh Circuit Court of Appeals. The Appeals court held that the moribund claim should stay that way because the Dispatcher could not show that she suffered from sleep apnea at the time of her termination or that the supervisor who made the decision to terminate her employment knew of her claimed history of apnea when he reached that conclusion. The Court also declined to resurrect her ADA claims for the same reasons.

Guzman started working as a dispatcher at the County’s 911 call center in 2002. In 2006 she was diagnosed with sleep apnea and treated for it. In 2008 she had gastric bypass surgery, which appeared to alleviate her sleep apnea. Shortly afterwards, she threw away her CPAP machine. In the second half of 2012 and early 2013 she was late for work on four occasions. After the fourth incident Guzman received a written warning that if she were late again, she could be fired.

Guzman was unable to comply and was, within days, late again. Her supervisor decided to fire her. Although she brought a doctor’s note to the meeting at which she was terminated, it said only that she “most probably” had sleep apnea and that she “needs to be re-tested and treated.” In the Seventh Circuit’s view, it was not clear from that note that Guzman even suffered from sleep apnea at the time she was fired. What was clear was that she was not receiving inpatient care for sleep apnea or receiving continuing treatment for it. Consequently, she did not show she had a serious health condition qualifying her for FMLA leave.

The court also put to rest the dispatcher’s argument that the County had notice of her FMLA claim at the time of her termination meeting.It was undisputed that the decision to fire had already been made by a supervisor who had no notice of her sleep apnea before the meeting at which she presented the note from her physician. For these reasons the Court declined to breathe life into her FMLA interference or retaliation claim.
Her ADA discrimination and accommodation claims fared no better. The court did not need to reach the question of whether Guzman had a disability because the evidence was uncontroverted that her supervisor did not know that she had sleep apnea prior to deciding to fire her. As a result she could not prove that she suffered an adverse employment action because she was disabled or because of a requested accommodation.

It seems axiomatic that a disability discrimination claim requires the plaintiff to suffer from a disability.  In Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs., No. 16-cv-9769 (RJS) (S.D.N.Y., March 13, 2018), a judge in the Southern District of New York dismissed a pro se plaintiff’s complaint for failure to allege that his alcoholism impaired a major life activity, as required by the Americans with Disabilities Act (“ADA”).

Plaintiff worked for the New York State Office of Alcoholism and Substance Abuse Services (“OASAS”) as an Addiction Counselor Assistant. He filed a lawsuit alleging discrimination based upon his purported disability – alcoholism – under the ADA.  The court granted OASAS’ motion to dismiss finding Plaintiff failed to allege he suffered from a “disability” as defined under the ADA.  In other words, Mr. Johnson failed to allege:

  • he suffered from a physical or mental impairment that substantially limited one or more major life activities; or,
  • he had a “record of such an impairment”; or,
  • that he was “regarded as having such an impairment” by OASAS.

Mr. Johnson’s self-identification as a “recovering alcoholic,” without more, could not save his claim.  The court noted that “[a]lthough alcoholism is considered an ‘impairment’ under the ADA…more than a physical or mental impairment is required to satisfy the definition of disability.”  Specifically, the court held “a plaintiff who alleges that he is disabled must demonstrate not only that he…was actually addicted to drugs or alcohol in the past, but also that this addiction substantially limits one or more of his…major life activities.”  Mr. Johnson failed to do so.

This case serves as a great reminder that although the term “disability” is construed broadly under the law, whether an individual’s ailment is deemed a “disability” under the law still requires an individualized assessment.

Many employers have programs allowing employees to donate their own time off to another employee with serious medical or family issues.  A dilemma often faced by employers with these policies is whether continued use of such donated time means the employee is not performing the essential function of attendance.  On the one hand, the employee is not violating any attendance rules if the time off is donated under the program.  On the other hand the employee may be taking an excessive amount of time off that is disruptive to the employee’s performance of essential job functions.

In Winston v. Ross, (10th Cir. Feb. 27, 2018), the Tenth Circuit Court of Appeals affirmed the dismissal of an employee’s claims that her employer discriminated against her because it ended her participation in a leave transfer program that allowed employees to donate annual leave when another employee needs additional leave for a medical emergency.  After Ms. Winston exhausted her leave under the Family and Medical Leave Act (FMLA), her employer approved her participation in the leave transfer program for a year.  The employer also provided Ms. Winston with a flexible work schedule and temporary reductions in her hours due to her need for additional time off.  The employer denied her request to telework two days per week because she could not perform her duties as a receptionist handling visitors and routing calls from home.

Among other things, Ms. Winston claimed she was discriminated against on the basis of her disability when her employer terminated her participation in the leave transfer program.   The Court concluded that Ms. Winston’s job required physical attendance.  While she did not dispute that attendance was an essential function of her job, she claimed that her participation in the leave transfer program was a necessary accommodation for her disability, which enabled her to work.  One could argue that is contradictory since her continued participation in the program would mean that she could take more time away from work.  The Court noted that “even if participation in the program allowed Ms. Winston to be absent from work, it does not follow that such participation ensured she could perform the essential functions of her job, including physical attendance.”  In other words, using leave donated by other employees would allow her to be away from work for health reasons, but it would not enable her to fulfill the essential function of physical attendance.

Employers who have, or are considering, some sort of leave or PTO donation program should be sure to include language that allows the employer discretion to approve or deny participation in the program based on the particular facts and circumstances.  Even having a cap on the amount of donated time the employee receives may result in situations where the employee is unable to perform the essential function of attendance.  Instead, employers should retain the ability to review each situation on a case by case basis and decide whether continued participation in the program is an effective and reasonable accommodation that would achieve the objective of allowing the employee to perform the essential functions of his or her job.

The Louisiana Court of Appeals—Fourth Circuit, recently overturned a trial court’s determination that an employee of a pest control company was not entitled to the payout of his accrued, but unused, vacation leave. Contrary to the findings of the trial court, the Court found that the terms of the policy were ambiguous and therefore, the employee’s interpretation should prevail. See Bodenheimer v. Carrolton Pest Control & Termite Co., Case No. 2017-CA-0595 (La Ct. App. Feb. 14, 2018).

The employee in this case worked for the pest control company for twenty-three years prior to his resignation. Over those years, the employee had earned approximately 1.25 vacation days per month.  At the time of his resignation, he had only used three of his fifteen accrued vacation days for 2015 and none of the 6.25 days he had accrued in 2016.  Therefore, the employee sought compensation for 18.25 days of vacation from his employer.

The employer, interpreting the vacation policy differently than the employee, only paid the employee for 3.25 days upon his resignation and refused the employee’s demands for payment relating to the other days in dispute. The employee subsequently filed suit under La.R.S. 23:631 and 23:632 for unpaid vacation wages of $2,974.02, plus interest.

The issues in the case was whether the vacation policy permitted unused vacation leave to be carried over to a subsequent year or whether unused leave was forfeited at the end of each year. The policy at issue provided that:

  • “Vacation may be taken in any one calendar year to the full extent that it has been accumulated provided this does not pose an imposition on C.P.C.
  • At the end of each calendar year, the amount of earned by unused vacation cannot exceed one time the maximum amount per the employee’s longevity bracket amount if not used before   the end of the calendar year as herein defined will be lost.
  • Unearned vacation may not be advanced.”

The trial court determined that this section was clear on vacation accrual and, contrary to the assertion of the employee, required an employee to use his vacation leave in the year accrued or lose it. After reviewing the trial court’s decision, the policy, and supporting documents from both parties, the Court found that the language of the vacation policy was ambiguous regarding whether unused accrued vacation leave could be carried over into another year, and the ambiguous language should be used against the employer because it was the party that drafted the policy.  The Court reversed the trial court’s decision insofar as it interpreted the policy to require the use of vacation days in the same calendar year in which they are earned and awarded the employee vacation wages for the full 18.25 days sought.

The takeaway for employers is a reminder that whether vacation leave is able to be carried over from year to year and payable upon termination must be clearly articulated in the company policies. Otherwise, an employer may be unintentionally liable for the payment of unused vacation upon the termination of an employee.

March Madness begins in just a few days.  It’s that glorious time of year when college basketball teams from around the country (and their fans) are filled with hope and excitement.  Who will make it to the final four?  Who will win the championship game?  Brackets are being completed and upsets are being selected.

Experts predict that March Madness will cost billions of dollars in lost worker productivity as employees stream games and check scores.  But spikes in internet activity are not the only thing on the rise.  Employers can also expect an increase in attendance issues.  Whether its long lunches, returning late from breaks or last minute call outs, employers should be prepared to deal with these issues.

Employers should take the time to remind employees of any leave and attendance policies.  Making sure that employees have notice of what is required (and expected) can help avoid attendance related misconduct.  These reminders can also be helpful if the employer needs to defend any disciplinary action.