Labor Relations & Wages Hours Update August 2013

Reviewing the employee’s claim, the Sixth Circuit considered whether her employment agreement operated as a waiver of her rights under the FLSA. Clearly, she filed suit more than six months after her last allegedly illegal paycheck; thus, if the agreement served as a valid waiver, her claims would be time-barred. If not, her claims were timely, as they were filed within the FLSA’s statute of limitations.

In an effort to support its position, FedEx improperly extrapolated from another Sixth Circuit decision that employees could waive their procedural rights under the FLSA even if they could not waive their substantive rights, the court explained. Case law does not recognize that distinction. The case the employer cited said only that an employee “can waive his right to a judicial forum only if the alternative forum ‘allow[s] for the effective vindication of [the employee’s claim,’” wrote the court, citing to Floss v Ryan’s Family Steak Houses, Inc. Having rejected each of the employer’s arguments, the Sixth Circuit concluded that the limitations period in the employee’s agreement served as a waiver of her FLSA claims; accordingly, that provision was invalid as to that claim.

FedEx advanced two more arguments to counter the EPA claim, which the Sixth Circuit rejected. First, the employer argued that the employee did not have evidence that the company “paid different wages to an employee of the opposite sex for substantially equal work.” To the contrary, the employer did not dispute that it paid the employee’s male coworker more than it paid her; moreover, there was evidence demonstrating that they performed jobs that were substantially similar. Second, FedEx did not establish an affirmative defense to the employee’s EPA claim. FedEx agreed that it paid the employee less than her male coworker, but claimed that when the male coworker left, it reclassified his position to a lower pay grade. However, there were genuine issues of material fact as to this issue; the employee presented evidence to the contrary.

Having decided that the limitations provision in the employment agreement acted as a waiver, that it was therefore invalid, and that FedEx’ other arguments fell short, the Sixth Circuit reversed the district court’s decision and remanded the case.

The case number is 12-5319.

Attorneys: Adam W. Hansen (Nichols Kaster), Stephen H. Biller (The Biller Law Firm) for Margaret Boaz. M. Kimberly Hodges, Federal Express Corporation, for FedEx Customer Information Services, Inc., and Federal Express Corp

6th Cir.: Revised FMLA regs support employer requirement that employee comply with stringent attendance policy

By Sheryl C. Allenson, J.D.

Relying on revised FMLA regulations, the Sixth Circuit ruled that an employer could enforce its usual and customary notice and procedural requirements against an employee seeking FMLA-protected leave, absent unusual circumstances that would justify the employee's failure to comply (White v Dana Light Axle Manufacturing, LLC, August 7, 2013, Batchelder, A). The employee, who filed suit alleging FMLA interference after he was terminated for failing to follow his employer’s call-in requirements, did not present any evidence demonstrating the type of “unusual circumstances” that would justify his conduct, ruled the appeals court, affirming the district court’s decision granting summary judgment in favor of the employer.

As an assembly worker for Dana Light Axle Manufacturing, the employee had to lift parts that weighed between 20 and 75 pounds for at least half of each shift. Although he performed well when he was at work, the employee had consistent attendance problems. Between January 26, 2009 and September 24, 2009 the employee called in about 19 times. The days off included emergency vacation, vacation, unpaid leave and FMLA leave. During that time, he took FMLA leave multiple times due to gout and “perhaps other unrelated back and foot pain as well.”

In her affidavit, the HR manager acknowledged that the employee did submit a new medical certification dated September 28, covering his late September absences and restricting him from lifting more than 20 pounds. However, the HR manager said that the employee never used the word “hernia” during the September 30 meeting. Instead, she claimed that he said he had a “hole in his stomach and “might be having surgery soon.” In contrast, the employee claimed that he told the group that he was having surgery the following week and that on October 2, he had to go to the anesthesiologist for surgery prep. He stated that he explained to the group about his hernia, the danger it presented at work, and asserted that he specifically used the word “hernia” during the meeting. His medical certification stated that his condition “may be hernia” and that he was referred to a surgeon “for evaluation of possible hernia.”

During the meeting, the HR manager told the employee that he could not return to the plant due to his weight-lifting restriction. According to the HR manager’s own affidavit, she understood at the end of the meeting that the employee planned to have his doctor remove that restriction and that he would return to work the next day. The employee testified that he believed that his paperwork was fine at that point, but that he could not return to work because no light duty was available. Thus, he said he would try to get the restriction lifted, so that he could return to work for a few days before his surgery. However, that did not work out, because his doctor would not agree to the modification. As a result, the employee contacted another HR rep, who claimed that she did not recall that communication. She did, however, remember providing the employee with a short-term disability application, just as the employee claimed.

Off work. Because the employee was not released from the lifting restriction, the employee did not report to work on October 1, 2, 5 or 6; it was also undisputed that he failed to call in as required by the employer’s attendance policy. Under that policy, every absence had to be called in to a number provided on a daily basis. If an individual fails to report for work for two days and has not called in, he is deemed to have voluntarily quit. The company’s FMLA policy required an employee to provide both advance leave notice and medical certification.

Termination letter. Although the employee thought the medical certification he submitted on September 30 was in order, the employer disagreed. On October 1 the HR manager sent the employee a memo identifying several deficiencies in that certification relating to his late September absences; she gave him until October 7 to rectify the documentation. However, in the interim, the employee had not returned to work; thus, pursuant to the attendance policy the HR manager sent him a termination letter dated October 6. As the reason for termination, the employer cited the employee’s failure to notify his supervisor, noted that the company’s records would indicate that he voluntarily resigned, and stated that he should contact his supervisor with any extenuating circumstances that should be considered.

Apparently after he received the October 1 memo but before he received the termination letter, the employee obtained a revised medical certification from one of his doctors. On October 7, he dropped it off on the HR manager’s desk before he went to have his surgery. Though he received the termination notice the following day, he apparently disregarded it, and started calling in absent on October 9, and did so until October 15, stating that he taking FMLA leave. The employee claimed that his union steward advised him to do this after he received his termination notice.

After he was terminated, the employee filed suit alleging that his employer interfered with his FMLA rights. The lower court granted the employer’s motion for summary judgment. Although an employee asserting an FMLA interference claim has the burden of establishing five elements, only one was at issue on appeal. An employee has to demonstrate that he gave the employer notice of his intention to take leave. Here, the employer’s notice requirements were more burdensome than those sufficient under the FMLA; thus, the question before the Sixth Circuit was whether an employer could impose and enforce its own internal notice requirements.

In 2003, the Sixth Circuit ruled in Cavin v Honda of America Manufacturing, Inc, that the FMLA did not allow employers to limit an employee’s FMLA rights if an employee failed to comply with internal procedural requirements that were more stringent than the statute. That decision drew on 29 CFR Sec. 825.302, which limited an employer’s rights in that regard. Subsequently, there were material revisions to the regulations. Effective January, 16, 2009, Sec. 825.302(d) provides in part that “an employer many require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. . . .Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. . . .”

Thus, the revised regulation expressly allows an employer to condition FMLA-protected leave upon that employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. Finding that Cavin decision was abrogated, the Sixth Circuit applied the revised regulation here and determined that the employer was entitled to enforce its usual and customary notice and procedural requirements against the employee. Moreover, the employee failed to produce any evidence demonstrating the type of “unusual circumstances” contemplated by the regulation, such that would justify his failure to follow the call-in requirements under the attendance policy. Therefore, regardless of whether the employee provided sufficient FMLA notice on September 30, the employer was entitled to terminate him for his failure to follow the attendance policy. Thus, the district court properly granted the employer’s motion for summary judgment.

The case number is 12-5835.

Attorneys: James Y. Moore (Eric C. Deters & Partners) for Matt White. Marjorie A. Farris (Stites & Harbison) for Dana Light Axle Manufacturing, LLC

By Marjorie Johnson, J.D.

An employee who was transferred to a different position four weeks after she returned from medical leave presented sufficient evidence to defeat summary judgment on her FMLA interference and reprisal claims, ruled a divided Sixth Circuit in an unpublished decision, reversing the district court’s dismissal of her claims (Crawford v JP Morgan Chase & Co, August 6, 2013, Donald, B). The position arguably involved more clerical duties and required less legal expertise, and therefore may have been non-equivalent even if her salary, grade level, work hours and work location did not change. Moreover, a chain of emails between upper-level supervisors provided evidence suggesting pretext. Judge Clay dissented.

The employee, who worked for JP Morgan Chase & Co, was diagnosed with post-traumatic stress disorder (PTSD), anxiety, and depression in the spring of 2005, following an incident in which she was held hostage at gunpoint. Later that year, she was promoted to a project manager position and she remained stationed at a Chase office in Columbus, Ohio. This position allowed her to apply legal knowledge that she acquired during her studies in law school.

Another high-level manager responded that the company could not justify eliminating the employee’s position, but rather needed to “realign her to change her responsibilities.” The manager further stated that if the employee refused to accept the responsibilities, such would be considered a resignation, “which we will accept.” From December 10, 2007 through February 19, 2008, the employee took another approved FMLA leave. A few weeks after her return, she was informed that her project manager position was transferred to Arizona and that she would be assigned to a quality analysis position based in Columbus, reporting to a former peer.

Her salary, grade level, work hours, work location, and bonus potential did not change. However, she believed the new position included more clerical duties and did not require the same level of legal expertise. She also felt that her opportunities for career advancement were diminished. She brought the instant action asserting, among other things, that Chase interfered with her FMLA rights and retaliated against her for using FMLA leave. The district court dismissed these claims on summary judgment, ruling that she had been reassigned to an equivalent position following her leave and did not suffer an adverse action.

FMLA interference. A triable fact issue existed as to whether the employee was transferred to an equivalent position after she returned from FMLA leave, and thus summary judgment was not warranted as to her FMLA interference claim, the Sixth Circuit ruled. Although the record did not include a great deal of evidence on this issue, viewing the facts in the light most favorable to the employee, the quality analyst position involved more clerical duties and did not require the same level of legal expertise as her prior program manager position. Moreover, she testified that her opportunities for career advancement were diminished in her new position. The appeals court concluded that if the quality analyst position did not require a similar level of training and education, then it was not equivalent in terms of status, and thus the positions would not be equivalent under the FMLA.

FMLA retaliation. The district court also erroneously granted summary judgment against the employee on her FMLA retaliation claim. As an initial matter, the Sixth Circuit ruled that the employee suffered an adverse action if a reasonable employee would have been dissuaded from exercising her FMLA rights, thus adopting the same standard set forth by the US Supreme Court for Title VII cases in Burlington Northern and Santa Fe Railway Co v White. Applying this standard, the appeals court held that the employee presented sufficient evidence that, upon returning from FMLA leave, she was transferred to a lesser position. She argued that her new position constituted a demotion because the position included more clerical duties, did not require the same level of expertise, and she was required to report to a former peer.

Even if she was transferred to a seemingly lateral position, the change in job responsibilities supported an inference of an adverse employment action. The email exchange among high-level supervisors demonstrated that there was a change in her responsibilities in the new role and that those changes might cause her to decline the new position and resign. Under these circumstances, the change in positions shortly after her return from FMLA leave could deter a reasonable employee from exercising her FMLA rights. Also, the close temporal proximity satisfied the causation element of her prima facie case at the summary judgment stage.

The case number is 12-3698.

Attorneys: Gary A. Reeve (Law Offices of Gary A. Reeve) for Paula Crawford. Angelique Paul Newcomb (Ice Miller) and Brooke Elizabeth Niedecken (Littler Mendelson) for JP Morgan Chase & Co.

6th Cir.: Volunteer firefighters received substantial compensation, so regarded as employees; enable police dispatcher to advance FMLA claims

By Sheryl C. Allenson, J.D.

In a 2-1 decision, the Sixth Circuit found that volunteer firefighters were employees within the meaning of the FMLA and FLSA, and therefore reversed a lower court’s decision granting a city’s motion for summary judgment (Mendel v City of Gibralter, August 15, 2013, Batchelder, A). Looking at the economic realities, the appeals court determined that the firefighters were paid compensation under the FLSA, and not a nominal fee for their work. As a consequence the city employed a sufficient number of employees so that a city police dispatcher could maintain a FMLA claim. Judge Kethledge wrote in dissent.

After a city police dispatcher was terminated, he filed suit alleging that the city violated his FMLA rights. In response, the city filed a motion for summary judgment; specifically, the city claimed that because volunteer firefighters were not employees for purposes of the FMLA it did not employ enough workers to invoke the FMLA. The district court agreed, and granted the city’s motion for summary judgment.

On appeal, the underlying facts of the employee’s claim were not at issue. Instead, the Sixth Circuit only had to consider whether the volunteer firefighters were employees for purposes of the FMLA, to decide whether the police dispatcher was an eligible employee under the Act. When the police dispatcher was terminated, the city had 41 employees, less its volunteer firefighters. At that time, the city had between 25 and 30 volunteer firefighters. The volunteer firefighters are not required to respond to any emergency calls, do not have set shifts, consistent scheduling, or do not staff a fire house. However, when they do respond to emergency calls, they are paid $15 per for the time they spend responding to the call and maintaining equipment. They do not receive health insurance, sick or vacation time, social security benefits or premium pay; however, the city does require the firefighters to complete an employment application and keeps a personnel file on each one. They typically receive a 1099 form from the city.