Posted on March 4, 2013 by Mitchell Boyarsky

Employee's Facebook Posting Sinks Her FMLA Discrimination and Retaliation Claims

A Family and Medical Leave Act (“FMLA”) plaintiff’s leave was proven fraudulent through her Facebook postings, resulting in summary judgment for her employer, dismissing her complaint. The Federal District Court for the Eastern District of Michigan concluded that the employer’s reason for her termination was legitimate and unrelated to her exercise of FMLA rights.

In Lineberry v. Richards, Plaintiff took a leave of absence based on excruciating pain she experienced in her lower back as certified by her physician. She applied for, and received approval from her employer to take, leave under the FMLA. During her leave, she went on vacation to Mexico. Plaintiff later posted on Facebook pictures of her vacation, including photographs showing her riding in a motorboat, lying on her side on a bed holding two bottles of beer in one hand, and holding her infant grandchildren, one in each arm, as she stood. She also posted details regarding certain activities she engaged in during her leave, including trips to Home Depot, watching her grandchildren and taking online classes. After Plaintiff’s co-workers revealed the Facebook postings to their employer, the employer questioned her in an investigation. The employer concluded that Plaintiff lied during the investigation about her use of a wheelchair while on leave.

Plaintiff sued her employer claiming its decision to terminate her employment interfered with her FMLA rights and retaliated against her for taking leave. On summary judgment, the Court reasoned that an employer’s interference with an employee’s FMLA rights does not violate the FMLA if it was motivated by a legitimate reason unrelated to the exercise of FMLA rights. In addition, the FMLA does not provide greater rights to an FMLA-eligible employee than to a non-FMLA-eligible employee. Here, Plaintiff was dishonest, and the employer terminated her employment after it uncovered the dishonesty. Accordingly, Plaintiff was not insulated from termination simply because she was on an FMLA-approved leave at the time.

This case is just another example of social media pervading the workplace and its utility in presenting the facts. It is noteworthy that the Court did not question the appropriateness of the disclosure of plaintiff’s Facebook postings to the employer by plaintiff’s co-workers, which led to plaintiff’s discharge. In a case where an employer is provided with social media postings – rather than surreptitiously obtaining them without authorized access – they may be used for employment decision-making.

For answers to questions regarding employer use of employee social media or the FMLA, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.


Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.
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Posted on November 21, 2012 by Gibbons P.C.

John C. Romeo and Kelly Ann Bird to Speak at Upcoming NJBIA Employment Seminars

John C. Romeo and Kelly Ann Bird, Directors in the Gibbons Employment & Labor Law Department, will be speaking at upcoming programs that are part of the New Jersey Business & Industry Association's Employment Seminar Series. John C. Romeo, will speak at the event, "HR101: An Employment Law and HR Primer," on the "Review of Key Employment Laws," on Wednesday, November 28, 2012, at Forsgate Country Club. On Friday, November 30, 2012, Kelly Ann Bird will speak at the "How to Comply with State & Federal Family & Disability Leave Laws" program at the Wilshire Grand Hotel.

Mr. Romeo, along with other professionals, will provide practical advice on how to effectively manage employee complaints along with other internal issues including properly identifying exempt vs. non-exempt employees, wage and hour rules, and appropriate hiring and firing procedures. Helpful information and updates on HR topics such as discrimination, leaves of absence, nepotism, and reasonable accommodations will also be discussed during the various panels throughout the day. For more information or to register for the this program, please click here.

Ms. Bird, and other panelists, will help layout a road map for employers who are navigating the complex New Jersey laws governing employee leave. The panel will provide in-depth guidance on how to comply with the numerous overlapping, and sometimes conflicting, federal and state laws.  Relevant cases as well as practical examples to ensure a sound understanding of the current leave laws and laws that may be on the horizon will also be discussed. For more information or to register for this program, please click here.
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Posted on August 9, 2012 by Michael J. Riccobono

Third Circuit Rules That Employers Need Not Accommodate Work Restrictions at End of FMLA Leave

Are employers required to provide reasonable accommodations to an employee to facilitate his or her return to the same or equivalent position at the conclusion of an FMLA leave? According to a recent decision from the Third Circuit Court of Appeals, the answer is no, provided the employee is unable to perform the essential functions of his job position. The case, Macfarlan v. Ivy Hill, provides important guidance for employers who must make such determinations upon an employee's return from FMLA-protected leave.

Factual Background

Plaintiff Alan Macfarlan worked as a maintenance director at Defendant Ivy Hill Rehabilitation and Nursing Care. On January 24, 2008, Macfarlan had a stroke, and on January 29, began a 12-week leave under the FMLA, which was set to expire on April 22. Beginning in February 2008, and continuing until August 2008, Macfarlan received short-term disability benefits from his insurer, Unum. On April 16, Macfarlan’s treating physician cleared him to return to work starting on May 1, but with the conditions that he not work more than four hours per day and that he not lift or otherwise move loads in excess of twenty pounds. After being notified by Ivy Hill’s administrator that part-time work was not available, on April 17, Macfarlan’s doctor cleared him to work full-time, but did not change the lifting restriction. On or about April 20, Ivy Hill terminated Macfarlan’s employment and notified him that he would not be hired back with any lifting restrictions. Macfarlan thereafter initiated suit, alleging that Ivy Hill violated the FMLA by refusing to allow him to return to work on April 17, once his doctor cleared him to work full-time, albeit with restrictions.

Family Medical and Leave Act

The FMLA makes it unlawful for an employer, among other things, “to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under this [statute].” The FMLA further provides that any employee who takes FMLA leave “shall be entitled, on return from such leave . . . to be restored by the employer to the position of employment [previously] held by the employee . . . or . . . to an equivalent position.” Notably, however, the FMLA does not require “an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of his medical leave.”

District Court Decision

The District Court concluded that Macfarlan was precluded from arguing that, at the time he sought restoration, he was able “to perform the essential functions” of his job, as required by the FMLA, despite his physician’s restrictions. The District Court concluded as much based upon the doctrine of judicial estoppel, which prevents a litigant from asserting a position inconsistent with one that he has previously asserted in the same or in a previous proceeding. The inconsistent position referenced by the District Court pertained to Macfarlan’s representations to Unum in connection with his application for short-term disability benefits. There, Macfarlan submitted documentation from his physicians that stated “he was unable to perform the material duties of his regular occupation.” The issue on appeal was whether (a) Macfarlan in fact made inconsistent representations, and (b) if he did so, whether he could nonetheless provide an adequate explanation for the inconsistency.

Third Circuit Decision

The Third Circuit determined based on the documentation Macfarlan submitted to Unum and Unum policy that disability benefits are provided “while you are unable to perform the material duties of your regular occupation” that there was no question that Macfarlan did in fact take the position vis-à-vis his insurer that he was medically unable to perform his occupation’s material duties. The Appellate Panel quickly dismissed Macfarlan’s attempts to explain this inconsistency, stating that his two claims “crash face first against one another, and the first estops the second.” As a result, the Court affirmed the District Court’s denial of Macfarlan’s FMLA claim.

Conclusion

Although largely fact-sensitive, the Macfarlan opinion is a noteworthy victory for employers as it reaffirms an employer’s right to refuse reinstatement under the FMLA to an employee who cannot otherwise perform the essential functions of the job. The Court’s decision reflects the fact that employers are not legally obligated by the FMLA to provide reasonable accommodations to employees to facilitate their return to work at the conclusion of their FMLA leave. It is also worth noting that Macfarlan apparently did not request an accommodation for his weight-lifting restriction. Employers remain obligated by the Americans with Disabilities Act and the laws of a number of states to assess whether requests for accommodation by disabled employees returning from leave are reasonable and should thus be granted.

In light of the Macfarlan case, employers should review their internal leave policies to ensure that they comply with the requirements of the FMLA and other applicable laws. Employers are also reminded to regularly update their job descriptions and requirements, so as to place themselves in the best possible position to withstand lawsuits such as the instant case. As always, before taking employment action against an employee on or returning from job-protected leave, employers should consult with legal counsel to ensure they have complied with legal obligations under the FMLA, ADA and other applicable laws. The attorneys in the Gibbons Employment & Labor Law Department regularly assist employers in these reviews and other employment and labor matters.


Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.
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Posted on May 7, 2012 by Mitchell Boyarsky

New Updated FMLA Forms Issued by DOL

Without any substantive changes, new updated model Family and Medical Leave Act (FMLA) forms have been issued by the United States Department of Labor (DOL) website and are available on the DOL website (in the section for Wage and Hour Division Forms). Employers using the former model FMLA forms on the DOL website should replace their prior versions, which expired on December 31, 2011, with the new versions. Employers using their own FMLA forms should include appropriate language to prevent employee disclosure of genetic information prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Such language should generally be included in the employer’s FMLA policies and other employee communications. The Equal Employment Opportunity Commission regulations suggest a "safe harbor” notice to include in such communications to effectively lessen the chance of an inappropriate disclosure of genetic information. The notice, set forth in Section 1635.8(b)(1)(i)(B) of the Regulations, provides:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that neither you nor your physician (or your family member’s physician) provide any genetic information when responding to any requests for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

We recommend employers include this language in its Certification of Health Care Provider and its Notice of Eligibility and Rights and Responsibilities, even though the model forms do not contain the “safe harbor” notice.

Certain states provide for a state-equivalent to FMLA leave for serious health conditions of employees and their immediate family members or for other forms of leave for medical reasons. If a state requires additional or different leave notification and forms, an employer should continue to comply with those state requirements. However, it also should consider including the GINA “safe harbor” notice in its employee communications and notices.

For templates of these updated forms including the GINA notice, please contact an attorney in the Gibbons Employment & Labor Law Department.


Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.
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Posted on June 17, 2011 by Gibbons P.C.

Recent New Jersey Appellate Division Case Reminds Employers to Carefully Draft Written Communications to Employees Regarding Leaves of Absence

The New Jersey Appellate Division’s recent decision in Lapidoth v. Telcordia Techs., Inc., 2011 N.J. Super. LEXIS 103 (App. Div. June 9, 2011) serves as an important reminder that an employer must exercise care in communications with employees regarding leaves of absence to avoid unintended contractual obligations, even when the employer has complied with its statutory obligations.

Plaintiff had worked for Telcordia Technologies, Inc. (“Telcordia”) for a number of years as a part-time manager, and during the course of her employment had taken nine separate maternity leaves. When Plaintiff became pregnant with her 10th child, she requested a six-month maternity leave (a longer leave than is protected by the federal Family and Medical Leave Act or the New Jersey Family Leave Act). A short time after Plaintiff gave birth to her son, Telcordia sent Plaintiff a letter notifying her that it had approved her six-month leave of absence and that the leave would count towards her Family and Medical Leave Act (“FMLA”) entitlement. The letter also stated that the “leave was granted with a guarantee of reinstatement up to 12 months to the same or comparable job,” but that if Plaintiff’s job was “declared surplus” or if Plaintiff requested to work a different number of hours than she had worked before going out on leave, reinstatement would not be guaranteed. While out on leave, Plaintiff requested an additional six-month leave, which Telcordia granted. Telcordia again notified Plaintiff in writing that reinstatement following her leave was guaranteed so long as her position was not declared surplus and she did not request a change in her hours. As her one-year leave was about to end, Plaintiff informed her supervisor that she intended to come back to work on the same part-time schedule she had prior to her maternity leave. At her supervisor’s request, however, Plaintiff agreed to return to work as a full-time manager. Due to budgetary constraints, Telcordia could only maintain one full-time manager. Telcordia decided to terminate Plaintiff’s employment and retain the manager who had been acting as the manager during Plaintiff’s maternity leave, and who had better performance evaluations than Plaintiff.

Plaintiff filed a complaint against Telcordia for discrimination and retaliation under the FMLA and the New Jersey Family Leave Act (“NJFLA”) and for breach of contract to reinstate her employment at the conclusion of her leave. In granting Telcordia’s summary judgment motion, the trial court found that Telcordia’s Code of Business Ethics (“Code”) contained a clear statement that all employment was at-will and that the FMLA/NJFLA did not require reinstatement because Plaintiff took a one-year leave of absence.

The Appellate Division affirmed the lower court’s decision as to Plaintiff’s FMLA/NJFLA claim, but reversed as to the breach of contract claim. Relying on the United States Supreme Court decision Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the Court ruled that Plaintiff was not entitled to reinstatement after taking a one-year leave because the FMLA guarantees reinstatement only for leaves of 12 weeks or less. The Court then turned to the breach of contract claim and held that in this case, “the evidence could support a finding that defendant had promised to reinstate plaintiff’s position at the end of her leave.” The court noted “[w]hile defendant’s Code and employment application provided that employment was at-will and that nothing in the Code or any of defendant’s other policies, practices, and procedures created any contractual rights, defendant’s letters relating to its policy on maternity leave seemed to contradict those general provisions.”

This case serves as a critical reminder that employers must exercise care in their written communications with employees to avoid unintentionally creating a contract. When granting leaves of absence under the FMLA/NJFLA, employers should make it perfectly clear that reinstatement is not guaranteed if the employee takes more leave than is protected by the FMLA/NJFLA. If you have questions regarding employer obligations under the FMLA and/or NJFLA, please feel free to contact any of the attorneys in the Gibbons Employment Law Department.
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Posted on October 29, 2010 by Gibbons P.C.

Bereavement Leave Obligations Extended to Same-Sex Partners in New York

New York State employers who extend funeral or bereavement leave to employees after the death of a relative must, effective October 29, 2010, provide the same leave after the death of a same-sex committed partner. Although this amendment to the New York Civil Rights Law creates no obligation for employers who do not offer funeral or bereavement leave to any employees, it does require a change for the many New York employers who currently provide such leave to various groups of defined relatives, but not to same-sex committed partners. Those policies and related practices should be revised promptly to comply with the new law. Additionally, while the new law does not apply to employers outside New York State, they may want to consider similar revisions for business reasons.

The new law’s definition of a committed relationship as “a long-term relationship characterized by emotional and financial commitment and independence” arguably lacks clear boundaries. How long is long-term? How much proof can or should employers require to verify that every element of the definition has been met? These questions remain to be answered.

The exact revisions to funeral or bereavement leave policies likely will differ employer to employer. For example, some employers may decide to extend funeral or bereavement leave to all committed partners, not just same-sex ones. Other employers may prefer to extend funeral or bereavement leave as narrowly as possible to comply with the new law. Regardless of how employers amend their policies, however, all affected employers should do so immediately.

The end of a calendar year is often a good time for employers to focus on potential revisions to employee handbooks and other employment-related policies and procedures, in part because organizational changes are often implemented around the beginning of a calendar year. Thus, this is a good time to modify funeral or bereavement leave policies as mandated, as well as to consider revisions to other employment policies and practices.

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