You may recall my post on August 8, 2014 about the Lupyan v. Corinthian Colleges, Inc. case in which the Third Circuit Court of Appeals reversed a summary judgment in favor of the employer when the employee claimed she never received an FMLA designation letter that her employer claims it mailed to her via first class mail.   Well we now have another case telling employers that sending an FMLA notice or request for recertification via email may not work either.

In Gardner v. Detroit Entertainment LLC dba MotorCity Casino, the employee was out on intermittent FMLA leave over a seven year period.  In October 2011, Defendant and its third-party FMLA administrator, FMLASource,  became aware that Plaintiff had been absent on intermittent FMLA leave nine times in September 2011, five more than anticipated by her doctor, and that she also had called off work every Sunday in September 2011.  So, on October 7, 2011 FMLASource sent a letter via email to Plaintiff, requesting that her health care professional re-certify the basis for her leave by October 25, 2011. Whether this email constituted sufficient notice to Plaintiff was the central issue in the case because Plaintiff claimed that she had informed FMLASource she wished to be communicated with by postal mail regarding FMLA-related communications.

Plaintiff argued that she did not open, and therefore did not effectively receive the October 7, 2011 email, in time to respond by the October 25, 2011 deadline. When there was no response, FMLASource automatically generated another letter on October 27, 2011, and sent it to Plaintiff again by email, advising her that due to the lack of recertification documentation, her intermittent leave was denied.  Defendant then applied its normal attendance policy and treated Plaintiff’s absences as unexcused resulting in an accumulation of 8.5 attendance violation points between July 15, 2011 and November 2, 2011, subjecting Plaintiff to termination.  Defendant terminated Plaintiff and she sued under the FMLA.

In analyzing the sufficiency of the notice to Plaintiff that recertification was required, the court held that an important distinction must be made between oral notification and email notification – “…oral notification, a person-to-person communication, guarantees actual notice to the employee. The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.”

The court went on to say that this distinction becomes particularly significant when an employee has expressed a preference for correspondence to be sent by postal mail, as opposed to email.  According to the court, there was genuine issue of material fact regarding whether or not Plaintiff had made such a request.  Plaintiff claimed that she never authorized FMLASource to communicate with her via email only and Defendant claimed that Plaintiff had previously authorized email correspondence.  Because there was a disputed issue of material fact, the court denied the employer’s motion for summary judgment.

LESSON FOR EMPLOYERS:  Similar to the message from the Lupyan case – if an employer wishes to prevail on summary judgment, it will need to send FMLA notices and/or requests for certification or recertification via a method that establishes receipt by the employee.

 

Unless you have been living under a rock the last few months, you have undoubtedly heard about the incident that took place between Ray Rice and his fiancée in an Atlantic City elevator, as well as Rice’s subsequent suspension by the NFL. Now, it is worth noting that the NFL is not your average employer.  There are a number a factors present that most employers need not consider, including high profile employees, endless amounts of publicity and collective bargaining agreements.  Despite the differences, the incident has likely caused most employers to pause and reflect on how they would handle a similar situation.

Unfortunately, there are no easy answers. In fact, for employers asking themselves whether they can take an adverse action against an employee accused of off-duty domestic violence, the answer is a rather infuriating “it depends.”  On one hand, at will employees may be fired for any reason, as long as it is a lawful one.  At the same time, employers must be careful when taking adverse action against an employee based on an arrest or conviction under state and federal law. Employers who have a policy or practice of not hiring or firing employees based on convictions should ensure the conviction is job-related and consistent with business necessity.  For Ray Rice, one of the main issues was that he had a contract that prohibited such conduct.  Indeed, there are a number of factors even at will employers should consider prior to taking any adverse actions against employees involved in a domestic violence dispute.

So the question remains, what is an employer to do if presented with a similar situation in which an employee has been accused of domestic violence? The first thing an employer should do is begin a prompt investigation. Before determining appropriate disciplinary action, employers should conduct an impartial and adequate investigation to attempt to discover all facts related to the incident. Employers may want to consider hiring an experienced workplace investigator to ensure the investigator is unbiased and objective, though a trained human resources representative may be sufficient.

The purpose of the investigation should be to determine if the incident might negatively impact the employer’s business or the employment relationship. Investigations should consist of interviews with the employee and/or other witnesses about the incident. These interviews should be clearly documented with reports of the interview, including a date and time, names of all present for the interview and a summary of the information discussed. The investigator should also collect evidence and document the process it took to obtain it. The interviews conducted and evidence collected should then be assembled into a report to allow the employer to make a determination of what disciplinary action should be taken (if any). Among the questions to consider during the process:

  • Does the company have a formal workplace policy that addresses domestic violence, which includes both incidents that occur at work and off-duty incidents? Or, does the company have a broader code of conduct policy that permits termination for off-duty conduct? Employers should have policies in place that lay out the consequences for off-duty conduct that affects the employer’s legitimate interests. The employer’s policy should address the fact that off-duty conduct can contribute to a violation of one of the employer’s policies, and result in discipline (including and up to termination).
  • Has the person been convicted? There is a rather large difference between being charged/accused of a crime and being convicted. Taking an adverse action at the charged/accused stage may open the employer up to a wrongful termination suit.
  • Is there a risk to the workplace? For instance, is the victim also an employee of the company who needs protection? Employers can open themselves up to a wrongful termination claim for taking adverse action without tying the incident to a specific workplace threat.
  • Is the person in a leadership position? If the accused employee is a high profile figure or leader in the company, it will be easier to establish a detriment to the company’s legitimate business interests would occur by keeping the employee on the payroll.
  • How has the company reacted to similar situations in the past? Any disciplinary action taken should be consistent with the company’s prior handling of off-duty conduct incident.

As you can see, there are no easy answers for employers. If you find yourself in a similar situation, consider consulting legal counsel before taking any adverse employment actions to ensure the company’s interests are protected.

Finally, it is at least worth a reminder that California employers should be careful to not punish the victim of domestic violence incidents. In fact, California has a number of laws in place protecting victims of domestic violence. For instance, under Labor Code section 230, employees who are victims of domestic violence, sexual assault, or stalking may take unpaid leave to: (1) obtain TRO or other court assistance; (2) to seek medical/social/psychological/safety assistance for self or child; or (3) attend court hearings. Employees must be permitted to use vacation/PTO time and confidentiality must be maintained regarding the employee’s request for leave. In addition, under Labor Code section 230.1 (which affects those employers with more than 25 employees), unpaid leave must be granted to victims of domestic violence to: (1) seek medical treatment for injuries related to the domestic violence; (2) consult a rape crisis center or domestic violence program; or (3) participate in safety planning.

A few months ago, this blog noted that there was press coverage about the nationwide increase in the use of noncompete agreements in various industries.  A story that has made the rounds in the past week illustrates this point clearly.  Jimmy Johns, a “gourmet sandwich” franchise, has apparently been inserting noncompete provisions in its employment agreements, including those employees who work on the line making sandwiches.  The noncompete provision purportedly seeks to prevent employees from working for a competitor, such as Subway, for a two year period.  The news reports caution that there have been no reported cases so far where Jimmy Johns has sought to enforce this noncompete restriction against a former employee.

For those California employers wishing to follow in Jimmy Johns’ footsteps, you should know that California law frowns upon such restrictions and they are permitted only in certain limited cases, primarily involving the sale of a business.  A noncompete provision similar to those described as being inserted into Jimmy Johns’ employee agreements would almost certainly be held unenforceable by a California Court.

For more details concerning this issue, please see “When the Guy Making Your Sandwich Has a Noncompete Clause,” published in the New York Times on October 14, 2014.

On September 15, 2014 Governor Brown signed AB 2536, which implements changes to California Labor Code section 230.3.  Prior to the passage of this bill, California law prohibited employers from discharging or discriminating against employees for taking time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel. “Emergency rescue personnel” was defined to include an officer, employee, or member of a political subdivision of the state, or of a sheriff’s department, police department, or a private fire department. This new law expands the definition of “Emergency rescue personnel” to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state.  The changes to section 230.3 now also require an employee who is a health care provider to notify his or her employer at the time the employee becomes designated as emergency rescue personnel and at any time the employee learns that he or she will be deployed as a result of that designation.

Summary of Program

Federal and state OSHA laws protect California workers from unsafe working conditions. However, the federal and state statutes and regulations are complex and can be difficult to understand. This seminar is designed to remove some of the mystery from federal and state OSHA requirements and assist you in your compliance.

Program Highlights

  • Implement a compliant and effective Injury and Illness Prevention Plan (IIPP).
  • Avoid enormous Cal/OSHA fines and hassles by regularly assessing your organization’s IIPP, training your employees, and shoring up weaknesses in your safety practices.
  • Better understand what OSHA regulations apply to your industry so you won’t be caught off guard if and when accidents occur.
  • Use effective preventive measures to keep your employees and customers safe from threats of workplace violence.
  • Recognize the warning signs that indicate an employee is capable of violence and how to respond.

Date:   Thursday, October 16, 2014

Time:  9:30 a.m. – 11:30 a.m.

For additional information and details of this seminar, please click here.  To register for this seminar, please email Ramona Carrillo at rcarrillo@weintraub.com.