Tag Archives: FMLA

April 19, 2017

Retroactive Leniency Is Not A Reasonable Accommodation

Is an employer required to excuse misconduct that was the result of the employee’s disability? The Tenth Circuit Court of Appeals recently looked at this issue and came to an interesting conclusion.

Janna DeWitt has Type I diabetes and is insulin dependent. Beginning in 1997, DeWitt worked for Southwestern Bell Telephone Company (SW Bell) as a customer service representative in its Wichita, Kansas call center. Recognizing that DeWitt had a disability covered by the Americans with Disabilities Act (ADA), SW Bell permitted her to take breaks as needed to eat or drink in order to raise her blood sugar level. SW Bell also granted DeWitt FMLA leave which she took intermittently for health issues related to her diabetes.

Last Chance Agreement

In 2010, DeWitt made an error by failing to shut down service on a customer’s account after the customer cancelled service. Failure to remove a service plan after cancellation was known as a cramming violation under SW Bell’s Code of Business Conduct and was a terminable offense. DeWitt was suspended following her cramming incident until she could address the issue with her supervisors in what the company called a “Day in Court.” Her Second and Third Line Supervisors decided to place DeWitt on a Last Chance Agreement under which any additional failure to perform satisfactorily could lead to further discipline, up to and including termination.

Terminated For Hanging Up On Customers

Two months after the cramming incident, DeWitt suffered a severe drop in blood sugar at work which she stated caused her to experience disorientation, confusion, and lethargy, making her unable to communicate with anyone. After DeWitt found that she was locked out of her computer, she contacted her First Line Supervisor, Tom Heumann, for assistance. Heumann did not address her locked computer but instead told the Center Support Manager, Beth Kloxin, that he had been monitoring De Witt’s calls and found that she had hung up on at least two customers. Kloxin responded by saying “I finally got that bitch” and did a little dance.

Later that day, Heumann and Kloxin met with DeWitt for a suspension meeting because of her two customer hang-ups. A union steward also attended the meeting. DeWitt explained that she did not remember taking the dropped calls and that she had been experiencing very low blood sugar levels at the time. Although they reviewed recordings of the dropped calls, DeWitt still did not remember them and asked if they were sure that the calls were hers. Heumann then told DeWitt that she was suspended and that a “Day in Court” would be held at a later date. In response to a request from Kloxin and the union steward, DeWitt provided her blood sugar levels for that afternoon.

About a week later, SW Bell held DeWitt’s “Day in Court.” DeWitt again explained that she did not remember taking the calls due to a severe drop in her blood sugar. Five days later, SW Bell terminated DeWitt for hanging up on two customers in violation of the company’s Code of Business Conduct and her Last Chance Agreement.

ADA and FMLA Claims

DeWitt filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and after receiving her notice of right to sue, filed a lawsuit against SW Bell in federal court. She alleged that the company failed to accommodate her disability and terminated her because of her disability in violation of the ADA, and retaliated against her for taking FMLA leave. After the district court ruled in favor of SW Bell on all of her claims on summary judgment, DeWitt appealed to the Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Oklahoma, Kansas, and New Mexico).

Employer Need Not Excuse Or Overlook Misconduct

DeWitt asserted that SW Bell failed to accommodate her disability by not excusing her dropped calls which she says were caused by her disability. The Court disagreed, stating that the ADA does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct, even when the misconduct is caused by the disability. Instead, the Court cited the EEOC’s ADA Enforcement Guidance which states that reasonable accommodations are “always prospective.”

The Court found that DeWitt had not requested a reasonable accommodation to address concerns that her diabetes could cause her to drop calls. Using a disability as an “after-the-fact excuse” for workplace misconduct is unreasonable and employers need not ignore or overlook past misconduct. Therefore, because asking for retroactive leniency is not a reasonable ADA accommodation, DeWitt’s accommodation claim failed.

Decision-Maker’s Honest Belief In Termination Reasons

On DeWitt’s ADA termination claim, the Court assumed (without deciding) that DeWitt had established that she was a disabled person under the ADA, and was qualified to perform the essential functions of her job. The Court also accepted that SW Bell had provided a legitimate, non-discriminatory reason for terminating DeWitt, namely that she had hung up on at least two customers while on a Last Chance Agreement. To prevail, DeWitt needed to show that SW Bell’s stated reasons for her termination were pretext for discriminating against her.

DeWitt argued that dropping the calls was not intentional but instead, was a result of her disability – her severely low blood sugar at the time. The Court said that didn’t matter. Instead what mattered was whether the decision-maker, Kimberly Baskett-McEnany, who was DeWitt’s Third Line Supervisor, honestly believed that the hang-ups were intentional and acted on that belief in good faith. Finding no evidence to undercut Baskett-McEnany’s belief, the Court ruled that DeWitt’s ADA discrimination claim failed.

FMLA Retaliation Claim Also Fails

DeWitt also argued that SW Bell terminated her in retaliation for her use of FMLA leave. She offered evidence from a former manager at the call center who stated that employees who used FMLA leave were targeted as employees that should be terminated and that the company would look for other reasons to terminate such employees. DeWitt also pointed to Kloxin’s response to Heumann’s revelation that DeWitt had hung up on customers, saying “I finally got that bitch,” as evidence that SW Bell terminated her for using FMLA leave.

Again, the Court rejected DeWitt’s arguments and her FMLA retaliation claim. The Court stated that the former manager’s comments about the company targeting employees who used FMLA leave was no more than speculation, as that person had no knowledge of and was not involved in the company’s decision to terminate DeWitt. In addition, the Court determined that Kloxin’s subjective beliefs were irrelevant as she was not the person who decided to terminate DeWitt. Finding no evidence to send DeWitt’s claims to a jury, the Court upheld the grant of summary judgment in favor of SW Bell on all claims.

Key Lessons

This case highlights some significant management practices that can help defeat discrimination and retaliation claims. First, hold all employees accountable to your standards of conduct. SW Bell terminated DeWitt for violating its code of conduct, providing the necessary legitimate, non-discriminatory reason for actions. In addition, because DeWitt could not provide evidence that other employees who similarly violated the conduct rules were treated more favorably than she was treated, she was unable to show pretext. Second, if a supervisor has a potentially unlawful animus or bias against an employee, take that person out of the decision-making process. Although Kloxin appeared to express animosity against DeWitt (although it is not clear that her animosity was driven by an unlawful motive), she was not involved in the decision to terminate DeWitt and that distinction drove the Court to reject DeWitt’s claims. Finally, remember that a reasonable accommodation applies prospectively. You need not excuse poor performance or misconduct for which no accommodation was requested. That said, when dealing with an employee with a known disability, weigh all employment decisions very carefully and make sure your actions are well supported by your policies and past practices.

June 22, 2015

New FMLA Certification Forms Include GINA Safe Harbor Notice

By Jude Biggs

The U.S. Department of Labor (DOL) unceremoniously published new FMLA forms with an expiration date of May 2018. The only significant revision is the addition of a notice to employees and health care providers on the medical certification forms informing them not to reveal genetic information in violation of the Genetic Information Nondiscrimination Act (GINA).

Genetic Information Off-Limits to Employers

GINA, which went into effect in late 2009, applies to employers with 15 or more employees. It not only makes it unlawful for employers to discriminate or retaliate against employees and applicants because of their genetic information, but it also prohibits employers from requesting, requiring, purchasing or disclosing genetic information.

Genetic information is defined to include information about an individual’s genetic tests and the genetic tests of an individual’s family members, genetic services and an individual’s family medical history. Family medical history is included because it often reveals whether someone has an increased risk of getting a disease, disorder or condition in the future.

FMLA and GINA Intersect

Under the FMLA, employers may require that an employee requesting leave for his or her own serious health condition or to care for a family member with a serious health condition provide a medical certification form completed by a health care provider. Through the medical certification form, health care providers provide medical facts about the condition, such as the expected duration, the nature of treatments, and whether the employee is unable to perform his or her job functions as well as information about the amount of leave needed. In some circumstances, responses by health care providers may reveal genetic information that is protected by GINA.

Because of this intersection of the FMLA and GINA, the regulations implementing GINA offer suggested language that covered employers may use to specify that no genetic information should be provided when medical information is offered to support a request for FMLA leave. By utilizing this safe harbor language and advising the employee and the health care provider not to provide genetic information when completing the FMLA medical certification form, the inadvertent receipt of genetic information by the employer will not be deemed a violation of GINA.

In the past, the DOL’s model FMLA certification forms lacked this GINA safe harbor language. Consequently, employers had to offer it separately or utilize their own FMLA forms in order to take advantage of GINA’s safe harbor provision. Now, the DOL has included the following language in its model FMLA certification forms:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), or genetic services, as defined in 29 C.F.R. § 1635.3(e).

The certification form for an employee’s own serious health condition includes a statement that no information about the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b), should be provided.

Use New FMLA Forms Or Update Your Own Forms

The new FMLA model forms, with fillable form fields, are linked here:

Take steps now to update your FMLA practices to use the new DOL forms, or if you use your own FMLA forms, update them to reflect the added recommended language.

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March 23, 2015

FMLA and FLSA Lawsuits Are Increasing

By Mark Wiletsky

The U.S. federal courts saw a whopping 26.3 percent increase in the number of Family and Medical Leave Act (FMLA) lawsuits filed last year over the prior fiscal year, according to statistics recently released by the Administrative Office of the U.S. Courts. Wage and hour lawsuits alleging a violation of the Fair Labor Standards Act (FLSA) were up a significant 8.8 percent. These filings are the highest they’ve been in the past 20 years of annual statistics reported by the courts.

The increasing numbers of lawsuits brought under those two employment laws may reflect how difficult it is to understand and administer wage and hour and leave laws. The increase also may be due to the heightened awareness by workers of their rights and benefits under these laws. Regardless of the cause of the increase, the numbers suggest that it is worthwhile for employers to focus their compliance efforts in these two areas.

Self-Audit Your Pay and Leave Practices

Before you find yourself defending a lawsuit, take the time to review your payroll and FMLA policies and practices, including these often tricky issues:

Classifying workers as exempt versus non-exempt from minimum wage and overtime pay requirements
Calculating each non-exempt employee’s regular rate of pay and overtime rate
Rounding time at the beginning and end of shifts
Automatic deductions for meal periods
Treating workers as independent contractors rather than employees
Tracking time worked remotely or “off-the-clock”
Providing FMLA notices within required time period
Calculating FMLA leave for workers with irregular schedules
Administering intermittent FMLA leave
Not penalizing employees who have taken FMLA leave

If your self-audit reveals any irregularities, take steps to revise your policies and practices to bring them into compliance with the applicable laws. Don’t forget state and local laws that may impose additional requirements related to pay and leave administration. If in doubt, don’t hesitate to consult with your legal counsel so that you don’t become one of next year’s statistics.

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September 23, 2014

Cheyenne Jury Awards $1,481,000+ On FMLA Retaliation Claim

By Brad Cave

The series of large verdicts for Wyoming employees seems to be marching forward. The most recent example occurred recently when a Cheyenne jury awarded over $740,000 to a trona miner after deciding that he was fired because he took FMLA leave. With liquidated damages available in an FMLA case, the Wyoming court entered judgment in an amount in excess of $1.48 million in favor of the employee. This case stands as yet another example about the importance of supervisor training and careful, well-documented and consistent decision making.

Long Term Employee With A Pain in the Neck. We first told you about this case in March of this year, when the Tenth Circuit Court of Appeals sent the case back to Wyoming for trial after reversing the trial court’s dismissal of the case. (Safety Violation or Too Much Intermittent FMLA Leave?). Here is a short recap of the facts.

Steven Smothers had been employed by Solvay Chemical for 18 years when his employment was terminated. Smothers had experienced back problems since 1994 resulting in three surgeries on his neck and other medical procedures, and an extended course of medical treatment by specialists. Over the years, Smothers took intermittent FMLA leave for his medical appointments and when he was unable to work due to the pain. The amount of FMLA leave he took did not go unnoticed. He was pressured by the production superintendent to change shifts to lessen the additional overtime cost caused by his absences, but such a change would have cost him about $7,000 per year in shift differential pay. Solvay also gave Smothers a negative rating on his performance evaluation because of his absences, and he was told that he was rejected for a promotion because of the leave.

Smothers’ Safety Rule Violation. In August 2008, Smothers and his coworkers were performing an acid wash, which Solvay did every six months to clean residual trona out of the equipment. When Smothers noticed that a damaged spool piece had caused a leak, he began to fix it without obtaining a line break permit which was required by Solvay safety rules. Smothers and a co-worker, Mahaffey, argued about whether the permit was necessary, and after Smothers removed the spool piece without first getting the permit, Mahaffey immediately reported Smothers’ actions to a supervisor.

Solvay terminated Smothers’ employment on August 28, 2008, based on a joint decision of six Solvay managers. Five of the six decision makers testified that the argument between Smothers and Mahaffey weighed heavily in the group’s decision to fire Smothers. Although the trial court originally dismissed the case, the Tenth Circuit believed that Smothers had presented enough evidence to create doubt about the real reasons for Smothers’ termination. So, the case was sent back to the trial court for trial.

What’s the Real Reason for Smothers’ termination? Like all retaliation cases, the jury in this trial was asked to decide whether Smothers was fired for a safety rule violation, as the employer contended, or because his employer retaliated against him for using intermittent FMLA leave or discriminated against him because of his disability. We don’t have a transcript of the trial, so we cannot tell you what evidence the jury heard or what facts persuaded the jury. We do know that the Tenth Circuit reasoned that the jury could disbelieve Solvay’s reasons because:

Supervisors criticized Smothers informally and in his performance evaluation for taking FMLA-protected leave, and rejected him for a promotion because of his time off;
Solvay did not give Smothers an opportunity to describe or explain his side of the argument with Mahaffey, even though the argument was a central reason for the decision to terminate Smothers’ employment;
Other Solvay employees who committed safety rule violations were not terminated.

And the Jury Returns.The jury found in favor of Smothers on his FMLA claim, and awarded Smothers the amount of $740,535 for his lost wages and benefits from the date of his termination, August 27, 2008, through the date of trial. But the potential damages don’t stop with the lost wages. Under the FMLA, the successful employee may be entitled to an additional amount equivalent to the jury’s award for liquidated damages – in other words, a penalty against the employer for the violation. As a result, the court has entered judgment against Solvay in the total amount of $1,481,070, twice the amount of the jury’s verdict, plus interest since the date of termination. The trial court declined to award Smothers any future lost wages. However, Smothers is entitled to an additional judgment for his reasonable attorneys’ fees and costs, which could add hundreds of thousands of dollars to the total.

Bottom Line. Regardless of the final number after adding prejudgment interest and attorneys’ fees, this is one of the largest judgments ever entered against a Wyoming employer. We cannot speculate about what evidence led the jury to its verdict, but we can share some lessons, with the benefit of twenty-twenty hindsight, that will help any employer avoid this kind of result:

Managers and supervisors must be trained and committed to the fact that taking FMLA leave is protected by federal law, and must not be the reason for formal criticism, denied opportunities, or informal complaining. FMLA-protected leave cannot be held against an employee for any reason whatsoever. Any comment or suggestion to the contrary can be used as evidence of pretext.
Investigations must be thorough and even-handed. While we don’t know all the evidence in this case, the jury may have heard that Solvay spent much more time asking Mahaffey about the argument with Smothers, while never asking Smothers for his side of the argument. Everybody should get the same opportunity to tell their side of the story. An inadequate investigation can be used as evidence of pretext.
Employees must be treated consistently. Smothers had evidence that other Solvay employees intentionally violated safety rules without being terminated. Employers need to mete out comparable discipline for comparable violations, or have a compelling reason why an employee gets tougher punishment.
Employers must respect long years of service. Of course, keeping a job for eighteen years does nothing to technically change the legal relationship or create any new rights or protection for the employee. But, after that length of time with a good performance record, it becomes difficult for a jury to believe that termination is an appropriate response for one incident.

Wyoming juries have delivered substantial employee verdicts over the last few years. Employers should pay attention.

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March 10, 2014

Safety Violation Or Too Much Intermittent FMLA Leave? Tenth Circuit Says Jury Must Decide Wyoming Employee’s FMLA and ADA Case

By Brad Cave

Did Solvay Chemicals fire long-time employee Steven Smothers because of a first-time safety violation or because the company was tired of his frequent absences due to an ongoing medical disability? The Tenth Circuit Court of Appeals recently ruled that Smothers provided sufficient evidence to suggest that Solvay’s stated reason for his termination was pretextual, allowing his claims for unlawful retaliation under the Family and Medical Leave Act (FMLA) and discrimination under the Americans with Disabilities Act (ADA) to proceed. Smothers v. Solvay Chem., Inc., No. 12-8013 (Jan. 21, 2014). The Court affirmed the grant of summary judgment on his state law claim for breach of an implied employment contract.

Medical Treatments and Severe Pain Lead to Frequent FMLA-Protected Absences

For eighteen years, Smothers worked as a surface maintenance mechanic in Solvay’s trona mine in Sweetwater County, Wyoming. The company considered him to be an excellent mechanic who did great work and got along with everyone. In 1994, Smothers injured his neck and developed degenerative disc disease in his spine. Over the next five years, Smothers had three surgeries to his neck as well as numerous other medical procedures. Despite treatment by a specialist, Smothers continued to have severe ongoing neck pain, severe migraine headaches and lower back problems. At times, Smothers was unable to work without pain treatments and he often was able to sleep only a few hours each night due to the pain.

Smothers asked for and was granted FMLA leave for intermittent absences caused by his condition. Managers and co-workers began to complain about his absenteeism, especially because he worked on the graveyard shift where there were fewer workers to absorb his absences resulting in increased overtime costs. Solvay’s production superintendent Melvin Wallendorf pressured Smothers to change to the day shift, but Smothers refused as the shift change would have cost him about $7,000 a year. Solvay’s human resources department advised Wallendorf that urging Smothers to switch shifts would violate the FMLA so Wallendorf stopped pressuring Smothers but did not stop complaining about his absences.

At one point, Wallendorf and Rick Wehrle, Smothers’ direct supervisor, gave Smothers a poor performance rating on his evaluation due to his absenteeism. In 2005 or 2006, Smothers applied for a promotion but was told that he was rejected because of his absences.

Safety Issue Explodes into Argument

In 2008, the graveyard crew conducted a routine maintenance acid wash to remove build up in its equipment. After a line ruptured, Smothers saw that a damaged “spool piece” had caused the problem and prepared to remove it. Another mechanic, Dan Mahaffey, suggested that Smothers wait for a line break permit, which is a form that certifies that employees have completed a checklist of precautions before a line can be safely disconnected. Smothers said that a permit wasn’t required because the line was already broken. Mahaffey and Smothers then argued. Mahaffey offered help on the repair which Smothers refused. Mahaffey took offense and accused Smothers of hypocrisy since Smothers had previously reported others for safety violations. Smothers made an offensive comment to Mahaffey and told him he did not want his kind of help. Smothers removed the broken piece and began the repair.

Mahaffey immediately reported the argument and Smothers’ removal of the spool piece without a line break permit to the area supervisor. Later that same day, three managers called Smothers in to discuss the safety violation. Although completing the line break permit may not have been absolutely necessary, Smothers later conceded that he should have locked out the pump valve before removing the part according to Solvay’s safety policies. Smothers apologized for not locking the pump valve before removing the piece and promised it wouldn’t happen again. Smothers was sent home pending an investigation.

Six managers were involved in deciding what to do about the argument and the safety violation. Three of the managers personally talked with Mahaffey about the argument but no one spoke to Smothers about it. About eight days later, Solvay fired Smothers. Smothers sued in Wyoming federal court, alleging, among other claims, unlawful FMLA retaliation, ADA discrimination and breach of an implied employment contract based on Solvay’s employee handbook.

FMLA Claim Bolstered By Disparate Treatment and Previous Retaliatory Acts

The trial court granted summary judgment to Solvay on Smothers’ FMLA and ADA claims. On appeal, the Tenth Circuit decided that Smothers presented enough evidence for a trial about whether Solvay’s real reason for his termination was his use of FMLA leave or his disability. Smothers provided evidence that other employees who committed similar safety violations were not fired. Five of the six decision-makers who fired Smothers were also involved in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules. Smothers also pointed to the negative comments, negative performance rating, failure to promote and pressure to change shifts because of his FMLA-protected absences as evidence that the safety violation was a pretext for firing him for his FMLA leave. Moreover, Smothers showed that the decision-makers had failed to sufficiently investigate the argument he had with Mahaffey, basing their decision almost entirely on Mahaffey’s version of events. The Court decided that a reasonable jury could find that Solvay’s investigation into the quarrel was not fair or adequate. Based on this evidence, the Court found that there were issues of fact on whether Solvay’s termination reasons were pretextual and reversed the dismissal of Smothers’ FMLA retaliation claim.

Smothers Was Disabled Under ADA

Smothers also asserted that his firing was in violation of the ADA. He presented evidence that his medical condition was an impairment that substantially limited a major life activity, specifically his ability to sleep. Because the facts would allow a reasonable jury to conclude that Smothers’ sleep was substantially limited, Smothers satisfied his burden of establishing a prima facie case of disability discrimination. As with the FMLA claim, the Court found sufficient evidence that Solvay’s stated termination reasons may have been a pretext for disability discrimination. Therefore, the Court reversed the dismissal of Smothers’ ADA claim as well.

No Breach of Implied Contract Based on Employee Handbook

Smothers also alleged that Solvay violated the terms of its employee handbook, giving rise to a claim for breach of implied contract under Wyoming law. The Court disagreed. Wyoming recognizes a claim for breach of implied contract if an employer fails to follow its own required procedures, such as the procedures laid out in an employee handbook. Solvay’s handbook contained a four-step progressive disciplinary process, with termination as the last step. But it also contained a provision that allowed Solvay to terminate an employee immediately for a serious offense, including a safety violation. Because the discipline policy unambiguously gave Solvay the discretion to fire employees who violate safety rules, the Court found that Solvay’s decision to terminate Smothers for violating a safety rule did not violate the terms of the employee handbook. Therefore, the appeals court upheld the trial court’s dismissal of Smothers’ breach of implied contract claim.

Back To Court They Go

We don’t know whether Smothers or Solvay will prevail if this case goes to trial but we do know that the appellate court thought that some of the evidence about the actions of Solvay managers could demonstrate that Solvay acted with a discriminatory motive:

Supervisors and co-workers gave Smothers a hard time about taking FMLA-protected leave.
Solvay failed to properly investigate all sides in the quarrel, accepting one employee’s version of events as fact.
The decision-makers treated Smothers more harshly than other similarly-situated employees who had violated similar safety rules.
Managers and supervisors considered Smothers’ FMLA absences when providing his performance evaluation and rejecting him for a promotion.

Evidence of these actions prevented Solvay from obtaining a grant of summary judgment on appeal. While Solvay may dispute Smothers’ evidence when the case actually goes to trial, this case stands as a lesson about the kinds of supervisory comments and actions that can feed into a discrimination claim, and a good reminder of how carefully employers must manage employees with injuries or disabilities.

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December 17, 2013

Colorado Raises Minimum Wage for 2014: Checklist for Complying with New Employment Developments

By Jude Biggs

A new year is just around the corner. Along with champagne toasts and resolutions to lose weight, January 1 typically brings new laws and regulations in Colorado. 2014 is no different. Colorado employers should plan now for the changes going into effect in 2014. It is also a good time to make sure you are in compliance with the new laws that took effect in 2013. Here is a checklist to help you stay on the right side of the law.

Colorado Minimum Wage Goes Up to $8.00 per Hour on January 1. The Colorado Division of Labor has adopted Minimum Wage Order 30 which raises the state minimum wage from $7.78 (2013) to $8.00 per hour, effective January 1, 2014. The state minimum wage for tipped employees increases to $4.98 per hour, also effective January 1, 2014. Colorado’s minimum wage is adjusted annually for inflation pursuant to the Colorado Constitution. If this applies to any of your workforce, update your payroll practices to comply with the new rate on the first of the year.
Marijuana may be Legally Purchased and Possessed on January 1. Adults may legally buy, use and possess small amounts of marijuana in Colorado beginning January 1st. Because marijuana is still illegal under federal law, Colorado employers may continue to have workplace policies banning its use by employees and prohibiting possession of marijuana on company premises. Review and if necessary, update your policies to reflect that use of controlled substances and drugs that are illegal under either state or federal law are not permitted. The new year is a good time to communicate this to your employees.
Rules Implementing Employment Opportunity Act (Credit History Law) Effective January 1. Colorado’s Employment Opportunity Act, section 8-2-126, C.R.S., was enacted last spring and went into effect on July 1, 2013, restricting an employer’s use of credit history information on employees and applicants. (See our post on that new law.) The Division of Labor has adopted new rules, 7 CCR 1103-4, that go into effect on January 1 to implement the provisions of the act. The new rules include a couple of new definitions and clarifications not found in the act itself, including that “consumer credit information” does not include income or work history verification and that “prevailing party” means the employee who successfully brings, or the employer who successfully defends, the complaint. The new rules also describe the enforcement mechanism for violations, including how complaints must be filed, the investigation process, initial decisions and appeals.
Rules Implementing Social Media and the Workplace Law Effective January 1. Last spring, Colorado enacted a law, found at section 8-2-127, C.R.S., that restricts an employer’s access to personal online and social media sites of employees and applicants. (We previously wrote on that law here.) The law went into effect on May 11, 2013 but new rules implementing the law go into effect on January 1, 2014. In large part, the rules, 7 CCR 1103-5, mirror the act itself but add that it is OK for an employer to access information about employees and applicants that is publicly available online. The new rules also detail the complaint, investigation, decision, appeals and hearing process.
2013 Family Care Act Extends FMLA Coverage to Care for Civil Union and Domestic Partners. Effective August 7, 2013, Colorado’s Family Care Act, section 8-13.3-201 et seq., C.R.S., extends leave benefits under the federal Family and Medical Leave Act (FMLA) to eligible employees to care for their civil union and domestic partners with a serious health condition. If you are a covered employer under the FMLA, ensure that your FMLA forms, policies and practices provide that eligible employees may take leave to care for a seriously ill or injured civil union or domestic partner. Also, for multi-state employers subject to the FMLA, remember that if you have employees in states that recognize same-sex marriages, the FMLA definition of “spouse” will include employees’ same-sex spouses due to the U.S. Supreme Court’s decision in United States v. Windsor (further discussed here).
Age 70 Cap on Colorado Age Discrimination Claims Eliminated in 2013. Colorado’s legislature enacted changes to the Colorado Anti-Discrimination Act (CADA). Effective August 7, 2013, there is no longer an upper age limit of 70 years old for age discrimination claims under CADA, section 24-34-301, et seq..C.R.S. This brings Colorado’s age discrimination law in line with the federal Age Discrimination in Employment Act which makes it unlawful to discriminate against employees and applicants on the basis of age 40 or older with no upper age limit.
Prepare for Changes in Remedies Available for Colorado Discrimination Claims Beginning January 1, 2015. Colorado added new remedies, including punitive damages, that may be recovered for violations of CADA for claims alleging discrimination or unfair employment practices that accrue on or after January 1, 2015, section 24-34-405. C.R.S. With a year to prepare, now is the time to get policies in place to address reasonable accommodations, complaint procedures and other good faith measures to resolve workplace discrimination issues.

Start the year off right by making sure you comply with these new developments in Colorado employment laws. We wish you a happy, healthy, prosperous and compliant 2014!

For more information, contact Jude at 303-473-2707 or jbiggs@hollandhart.com.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

August 14, 2013

DOL Updating FMLA Guidance to Reflect DOMA Decision

By Brad Cave

New Labor Secretary, Tom Perez, indicated that the Department of Labor (DOL) has updated departmental guidance regarding spousal leave provisions of the Family and Medical Leave Act (FMLA) to reflect the Supreme Court’s recent decision that struck down certain provisions of the Defense of Marriage Act (DOMA). As the DOL updates its policies, employers too need to examine and update their FMLA policies. Here is what you need to know.

Unconstitutionality of DOMA Means FMLA Spousal Leave Applies to Legally Married Same-Sex Couples

The Supreme Court’s decision in United States v. Windsor focused on Section 3 of DOMA which defined “spouse” as a husband or wife of the opposite sex for purposes of federal laws or regulations. Because of that definition, legally married same-sex couples were not entitled to federal benefits or rights. As a result, FMLA leave benefits did not extend to employees needing time off to care for a same-sex spouse with a serious health condition.

In finding Section 3 of DOMA unconstitutional, the Court stated that the regulation of marriage traditionally rests exclusively with the states and the federal government violates equal protection principles by denying rights and benefits to same-sex couples who are legally married under state law. The result is that federal rights and benefits, including FMLA spousal leave benefits, now apply equally to state-sanctioned same-sex couples and heterosexual couples.

DOL Implementing Court’s Decision

Secretary Perez affirmed the availability of spousal leave under the FMLA based on same-sex marriages. He indicated that the DOL has removed references to DOMA from some of its guidance documents and will continue to take steps to implement the Court’s Windsor decision.

When Do Employers Need to Recognize Same-Sex Marriages for FMLA Purposes?

With some states legally recognizing same-sex marriages and others not, a key question for employers is which state’s law applies for FMLA spousal leave purposes? According to the DOL’s 2009 FMLA regulations, “spouse” means a husband or wife as recognized by the state where the employee resides. This means that the employer must determine if same-sex marriages are lawful in the state where the employee requesting FMLA leave lives, not where the employer is located or where the employee actually works. At present, 13 states plus the District of Columbia recognize same-sex marriages as lawful: California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington.

Some groups are urging the DOL to adopt a rule that would recognize FMLA rights based on the state where the marriage was celebrated, not the state of residency. Although the DOL has not yet proposed any rule changes on this issue, we will keep an eye on it and will let you know if any changes to the marriage recognition rules are proposed.

Update Your FMLA Policy for Same-Sex Spousal Leave

If you have employees living in one or more states that recognize same-sex marriages (or in the District of Columbia), update your FMLA policy, forms and practices to incorporate spousal leave benefits for recognized same-sex marriages. This includes FMLA leave for an employee who needs to care for a same-sex spouse with a serious health condition, leave because of a qualifying exigency due to the employee’s same-sex spouse being on “covered active duty” and FMLA military caregiver leave for an employee who needs to care for a same-sex spouse who is a “covered servicemember” or “covered veteran.” Be sure to look at the state where the employee resides when determining whether same-sex marriage is deemed lawful and recognized for FMLA purposes. If you use an FMLA tracking mechanism, make sure the system properly tracks for same-sex spousal leave. As always, train your managers, supervisors and human resource professionals on this change in FMLA benefit coverage.

March 19, 2013

Checklist for Complying with the New FMLA Regulations

Have you updated your Family and Medical Leave Act (FMLA) policy and poster? You should have. New regulations that implement changes to the FMLA went into effect on March 8, 2013. Covered employers need to take action now to ensure compliance with the new rules.

A summary of the changes to the FMLA as well as a checklist for complying with the new regulations is available here. Be sure to update your FMLA policies, poster, certification forms and notice of rights immediately. In addition, ensure that your leave administrators, supervisors and human resources personnel are trained on the new rules. FMLA compliance isn't hard, but it does take work!

February 12, 2013

FMLA and Facebook Don’t Mix – Vacation Pictures Catch Employee in a Lie

By Mark B. Wiletsky

Co-workers “friend” each other on Facebook all the time. But sometimes those “friends” turn against their own, providing employers with evidence of wrongdoing. In a recent case (Lineberry v. Richards), an employee learned the hard way that posting pictures on Facebook can come back to bite you.

Lineberry, who worked as a full-time Registered Nurse, claimed she needed Family and Medical Leave Act (FMLA) leave after suffering severe pain in her lower back and legs. Her employer granted her request.

About four weeks into her leave, Lineberry took a prepaid, planned vacation to Mexico. As many people do today, Lineberry posted photos of her Mexico trip on her Facebook page. Her co-workers, who had legitimate access to Lineberry’s Facebook page, saw the photos, including pictures of Lineberry riding in a motorboat, lying on her side while holding up two bottles of beer, standing while holding a grandchild on each hip and making trips to Home Depot. Based on the Facebook postings, the co-workers complained to Lineberry’s supervisors. Responding to her supervisor’s inquiry about her activities, Lineberry wrote that she had used a wheelchair at both airports while on her trip.

When Lineberry was released to return to work, her employer called her into an investigative meeting. Initially, she stood by her claim that she had used wheelchairs in the airports on her trip, but after questioning, she admitted that she lied and had never used a wheelchair while on vacation. A week later, Lineberry was terminated for dishonesty and falsifying or omitting information, a violation of the company’s policies. Lineberry sued, claiming that her employer violated her FMLA rights.

Termination Was Based on Dishonesty, Not FMLA

During her deposition, Lineberry admitted again to lying about her use of a wheelchair while on vacation. Because of the undisputed evidence of Lineberry’s dishonesty, the Court ruled that her employer had the right to terminate her without regard to her leave status. The Court explained that the FMLA does not afford an employee greater rights that he or she would have if not on FMLA leave. Because her employer had the right to terminate Lineberry for dishonesty whether or not she took leave, the termination on that basis was permitted by the FMLA.

Employer Lessons

A few key pointers for employers:

1) Although you should always be cautious before disciplining or terminating an employee on protected leave, keep in mind that the employee’s leave status is not a free pass to lie or commit fraud.

2) Of course, before firing or taking disciplinary action against an employee on leave, make sure you have all the facts. If you have a progressive discipline policy, follow all procedures set forth in the policy. The employer in Lineberry waited to make its termination decision until it called Lineberry in for an investigative meeting, as was required under its discipline policy. Failure to follow your own procedures can lead to lawsuits even when your underlying reasons for discipline or termination are justified.

3) Don’t “friend” your employees so that you can surf their Facebook pages – you could be liable for invasion of privacy. In addition, you could learn characteristics that you otherwise would not know (e.g., religion, national origin, disability, etc.) that could later serve as the basis for a discrimination claim. However, if others who legitimately obtained information from Facebook report it to you, treat it like any other workplace complaint and conduct an appropriate investigation.

January 28, 2013

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

By Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves. The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition. The AI also clarified FMLA leave to care for an adult child injured during military service. Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child. However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability.

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met. The adult son or daughter must:

1) have a disability as defined by the Americans with Disabilities Act (ADA);

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 the serious health condition.

Disability Determination. Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities. Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care. The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc. Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition. If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA. This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA. However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed. Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition. This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old. For purposes of FMLA leave, it does not matter when the disability commenced. The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period. Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance. Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.