Wyche at Work: October 2013 Employment Update

Prepared by Ted Gentry
October 2013

National Disability Employment Awareness Month

October was National Disability Employment Awareness Month (“NDEAM”), a national campaign to raise awareness of disability employment issues. In his Presidential Proclamation, President Obama paid tribute to disabled employees as “leaders, entrepreneurs, and innovators, each with unique talents to contribute and points of view to express. During National Disability Employment Awareness Month, we nurture our culture of diversity and renew our commitment to building an American workforce that offers inclusion and opportunity for all.” Wyche at Work highlights disability issues that arise in employment from time to time, so this is a timely reminder to be aware of your obligations to disabled employees.

South Carolina Court Addresses FMLA Claims with Mixed Result for Employers

On September 30, the U.S. District Court for the District of South Carolina addressed familiar Family and Medical Leave Act (“FMLA”) interference and retaliation claims: (1) what requests can a company make of an employee who is out on FMLA leave (“interference”)?; and (2) can a company terminate or deny a salary increase to an employee following FMLA leave for conduct purportedly unrelated to FMLA leave (“retaliation”)?

The Court addressed a number of allegations that the company interfered with plaintiff’s FMLA leave:

  1. The company’s request for weekly updates as to the plaintiff’s status did not interfere with her FMLA leave. FMLA regulations permit an employer to require an employee on FMLA to report periodically on the employee’s status and intent to return to work.
  2. Merely asking that the plaintiff help locate files for others while she was on leave did not constitute interference. The court explained that “fielding occasional calls about one’s job while on leave is a professional courtesy” that does not rise to the level of interference.
  3. Receipt of a negative performance evaluation days after taking leave did not interfere with the plaintiff’s FMLA rights where the record was clear that employer had been dissatisfied with the plaintiff’s job performance for at least eight months and the evaluation did not discourage the plaintiff from taking FMLA leave. Specifically, the company had encouraged the plaintiff to leave the company eight months earlier, had given her a low score on the interpersonal relationships section of her previous performance evaluation, and had met with her to discuss performance problems.
  4. While she was still on FMLA leave, the plaintiff was denied an annual salary increase and bonus similar to ones she had received in prior years. Because the company lacked policies to clarify how pay increases and bonuses were awarded, the court found there were genuine issues of material fact concerning the nature of the policies and whether denying the plaintiff a pay increase or bonus prevented her from being returned to a position of equivalent pay or interfered with her leave by discouraging her from taking leave.
  5. When the plaintiff returned to work, her supervisor criticized her for rescheduling a meeting without consulting with him (and rescheduling it for a day he had blocked for vacation), noting that she was “just returning from leave.” Prior to the plaintiff’s leave, she had authority to reschedule meetings. Therefore, the plaintiff was permitted to proceed in her claim that the company interfered with her FMLA rights by failing to “restore” her to the position she left pursuant to FMLA protections.

The plaintiff’s retaliation claim also survived summary judgment. The company gave the plaintiff a negative employment evaluation, threatening termination, and denied her an annual salary increase during FMLA leave, and then the company terminated the plaintiff within one month of returning from leave. The closeness in time between the adverse employment actions and FMLA leave (along with earlier satisfactory performance reviews) constituted “sufficient evidence to give rise to a genuine issue as to whether defendants’ non-discriminatory explanation is pretextual” for discrimination against the plaintiff for taking FMLA leave.

There are a number of lessons for employers in this case:

  • To the extent helpful or necessary, employers should create and follow leave policies requiring an employee on leave to periodically report status and intention to return to work.
  • Employers should resist most efforts to ask an employee to work during FMLA leave. Employers should train managers and supervisors that requests for assistance should be minimal and non-burdensome.
  • Employers should create and follow compensation policies that set forth factors considered in awarding a bonus or raise that are independent of FMLA leave.
  • Courts will scrutinize any adverse action taken (e.g., termination, discipline, demotion, or denial of a bonus or pay increase) during or shortly after FMLA leave. Proximity in time is a factor the court will strongly consider in a motion to dismiss an FMLA lawsuit.

Social Media and the Workplace Part I

As we promised last month, Wyche at Work is commencing a three-part series on social media in the workplace. This month, we will focus on the pitfalls of accessing your employees’ (or applicants’) social media accounts. We have discussed the merits and challenges of accessing, for example, an applicant’s Facebook account in previous Wyche at Work editions. While requesting or accessing an applicant’s or employee’s social media passwords has some appeal, there are many reasons for caution, and the costs may outweigh the benefits:

  • Several states have outlawed this activity and there are continuing legislative efforts to prohibit these requests. Such requests are not currently prohibited by statute here in South Carolina, but the South Carolina General Assembly and the U.S. Congress have considered legislation that would make it illegal to require or request that an employee or applicant provide email or social media account information and would punish adverse actions for refusal to provide a password.
  • Some types of access – especially surreptitious access without notice or express consent – can violate other laws that protect individual privacy, such as the Stored Communications Act.
  • The request could negatively impact employer/employee relations and/or repel qualified applicants from seeking employment.
  • An employer could obtain irrelevant nonpublic information (such as the applicant’s or employee’s religion, disability, marital status, sexual orientation, etc.) that could result in a discrimination charge. Far from helping an employer make good employment decisions, accessing social media accounts could inadvertently provide an employer with notice of information that is illegal to use in hiring/termination decisions!

Employers who access social media accounts should only do so in jurisdictions where it is permitted, pursuant to a written policy with a protocol that targets specific objectives, and only with the advance written consent of the employee. Furthermore, irrelevant and unwanted information gleaned from this search should be screened from the ultimate decision maker.

Future discussions on social media topics will focus on (i) regulating employee conduct on their social media accounts, and (ii) creating manageable bring-your-own-device policies and company social media ownership policies. Stay tuned to Wyche at Work for this exciting series!

OSHA Launches New Online Resources

On October 24, 2013, the Occupational Safety and Health Administration released two new resources for employers regarding hazardous chemicals. First, noting that thousands of workers encounter occupational exposure to hazardous chemicals, OSHA developed an online toolkit to aid in eliminating or reducing hazardous chemicals by providing safer alternatives. Second, OSHA published the Annotated Permissible Exposure Limits, or annotated PEL tables, which will enable employers to voluntarily adopt newer, more protective workplace exposure limits. Affected companies may want to peruse these resources, which provide efficient and effective ways to protect employees from hazardous chemicals.

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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