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Plaintiff who was placed on paid administrative leave after taking Family and Medical Leave Act (FMLA) leave was retaliated against, even though he retained all compensation and benefits.
An employee who had a promotion taken away and was then placed on involuntary administrative leave after he took an FMLA leave of absence demonstrated that his employer retaliated against him, a court recently found, upholding a jury’s verdict.
Prior to taking FMLA leave, the employee had received a new job title and increased job responsibilities, along with the promise of a 10 percent raise. After taking leave, the employee’s new job was taken away from him, and he was eventually placed on paid administrative leave, which eliminated all of his job duties, barred him from coming into work and eliminated all interaction with his coworkers. The defendant argued that neither action could be considered retaliation, because:
1. the employee’s job change was not a promotion, and
2. he continued to be paid while on leave.
The jury and court disagreed with the employer. Although the worker’s job classification did not change, he reasonably considered the new job a promotion, because it involved more responsibility and a pay increase, and the company president sent him a written note congratulating him. As for the administrative leave, the court explained that any employment action that might discourage a reasonable employee from exercising his rights under the law is sufficient to show retaliation. In this case, the fear of having one’s job taken away, being barred from coming into work and losing all contact with coworkers is enough of a deterrent that a reasonable employee could be dissuaded from either taking leave or filing a complaint about his employer’s actions. It did not matter that the employee continued to receive his salary and benefits. He missed out on training and advancement opportunities, as well as performance reviews and other chances for growth at the company.
This case demonstrates the way that courts are interpreting the notion of “adverse action” for retaliation purposes. Since the Supreme Court’s decision in the Burlington Northern case in June 2006, more lower courts have found retaliation, even where the employee did not lose any monetary benefits.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Foraker v. Apollo Group Inc. d/b/a Univ. of Phoenix, 2006 WL 390306 (D. Ariz. November 22, 2006)].
Employee who was fired for attempted theft but later ordered reinstated by an arbitrator was properly fired again, days after reinstatement, for attacking a security guard at the time of his first termination.
When employee Jose Diaz was suspended and then fired two days after attempting to steal meat from his employer, he angrily attacked a security guard and then filed a grievance with his union about the termination. During the arbitration over the firing, the employer argued that even if it was wrong to fire Diaz for attempting to steal, he would have been fired anyway for attacking the guard. The arbitrator specifically declined to consider the attack and ordered the employer to reinstate Diaz with back pay as a remedy for the unlawful termination. The employer paid Diaz back pay for the two days between his suspension and first termination but informed him he was being fired a second time for attacking the guard. The union filed a lawsuit seeking to enforce the arbitration award and have the worker reinstated.
The court upheld the second termination. Although it was a new issue for that jurisdiction, other courts have upheld successive terminations based on independent grounds. In this case, the arbitrator had the opportunity to consider the employee’s violence when making his determination and specifically decided not to do so. Instead, he only considered the reason for the first termination: The attempted theft. That left the employer free to argue that the later attack justified the second firing.
The court noted that if the arbitrator had considered and rejected the alternate ground for the firing, then the employer would have been obligated to reinstate Diaz despite the attack. But because the arbitrator refused to consider the attack on the security guard as a motivation for the company’s actions, the employer was free to terminate the worker again, subject only to paying him two days of back pay for the time he was off work between his suspension for attempted theft and his attack on the guard.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see United Food & Commercial Workers Union Local 1776 v. Excel Corp., -- F.3d --, 2006 WL 3456611 (3rd Cir., December 1, 2006)].
Airline pilot could not count “reserve time” spent waiting to be called into work as compensable hours for the purposes of calculating whether she had worked enough hours in the previous year to qualify for FMLA leave.
An airline pilot who quit her job after her company denied her FMLA leave to care for her sick son sued the company for a violation of the law, but a court found she had not worked enough hours to qualify for FMLA protection.
The employee had used FMLA time in the past, and the employer’s reason for denying her more leave to seek treatment for her son was that she did not provide a sufficient medical justification. After the worker quit her job and sued her employer, the court noted that the employee did not qualify for FMLA protection anyway, because she had not worked 1,250 hours in the 12 months prior to her request for leave. In calculating the hours the pilot had worked, the court took into account the hours she spent in active duty, training or on layover between flights when she was required to rest for at least eight hours. However, the court did not count on-call time, during which the plaintiff could not drink and had to be available to be at the airport, in uniform, within one hour of receiving a call to come to work. Absent on-call time, the plaintiff had only worked about 760 hours in the preceding year.
The court used the same standard for calculating hours worked as is used under the Fair Labor Standards Act and explained that when deciding whether on-call time counts as hours worked, it needed to look at the extent of the employee’s freedom to pursue her own activities while on-call. Although the plaintiff argued that she was not able to undertake activities such as attending her children’s field trips, getting a manicure or grocery shopping, the court found the limitation on her activities was not so severe as to require the time to count as hours worked. The fact that the plaintiff received a nominal hourly wage for her on-call time was not enough to convert those hours to formal working hours. Additionally, the court explained that although it had ruled differently for on-call employees in other professions, those employees had shown that their employer actually called them into work frequently during their on-call time. In this case, the pilot presented no evidence regarding how often, if ever, she had been called.
This case shows that the question of whether on-call time counts as working hours depends on the specific facts and circumstances of each case. If you have a question about your company’s particular on-call policy, consult an experienced employment attorney.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Knapp v. Am. W. Airlines., 2006 WL 3387853 (10th Cir., November 24, 2006)].
Requirement that Parks Department employees tuck in their shirts at work does not violate their First Amendment rights.
The Kentucky Department of Parks did not violate the rights of several seasonal parks employees when it instituted a dress code requiring all workers to keep their shirts tucked in while at work.
The shirt requirement was part of a broader dress code that banned visible tattoos and body piercings and applied to all parks employees. The plaintiffs were outdoor laborers who argued that the requirement was arbitrary and unreasonable and that tucking in their shirts made them hot in the summer. They refused to tuck in their shirts in protest of the policy, and all were fired after being warned that failing to tuck in their shirts would result in termination.
The court explained that government workers do have the right to free speech or expression on matters of public concern. In this case, the shirt issue was not one of public concern but a personal comfort issue related only to the policies of the Parks Department. Therefore, the workers’ protest and refusal to tuck in their shirts was not protected speech, and their firings were lawful.
This case explains some of the limits government workers have on their right to free speech. The court explained that protests about a private personnel policy do not fall into the same category as complaints about things like a political issue. Only issues that are matters of importance to the public are entitled to free speech protection for government workers.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Roberts v. Ward, -- F.3d --, 2006 WL 3392620 (6th Cir., November 27, 2006)].
