Employers increasingly are finding federal courts to be receptive forums for the consideration of an employeeโs retaliation claim. In Burlington Northern v. White, for instance, the Supreme Court held that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions. Last year, in Crawford v. Metro Government of Nashville, the Court ruled that an employee who was terminated after she answered questions during an employerโs internal investigation was protected under the anti-retaliatory provisions of Title VII.
Conflicting Fitness for Duty Reports Preclude Retaliation Claim
What should an employer do when an employee’s doctor releases him to return to work, but its own doctor says that the employee cannot safely return? A federal district court in Kansas recently addressed this issue, holding that an employer’s reliance upon its own doctor’s opinion that an employee could not return to work was a legitimate basis for discharging the employee after he had exhausted all of his available FMLA leave.
Knowledge of Employee’s Cancer and Discussion of FMLA Enough to Support Discharge Claim.
According to a recent ruling by the 9th Circuit Court of Appeals, an employee may have a valid wrongful discharge claim under the FMLA even if she fails to actually request FMLA leave, based upon evidence that her employer was aware that she had cancer and discussed whether she had taken FMLA leave shortly before her termination.
FMLA FAQ – When does the 15-day period for returning a certification start?
Q: I know that I have to allow employees at least 15 days to return a medical certification, but when does the 15-day clock start running?
FMLA FAQ – Can an employee fill out his own medical certification?
An employee seeking FMLA leave just turned in a medical certification form with handwriting that looks suspiciously like her own. If the employee filled out this form, do we have to accept it?
Employee’s Failure To Call In Defeats FMLA Claim
Under the FMLA rules, an employer may require employees seeking FMLA leave to comply with its “usual and customary notice and procedural requirements for requesting leave,” except in “unusual circumstances” that prevent the employee from doing so. A recent decision by a federal district court in Tennessee demonstrates how this provision can be exceedingly useful to employers in managing FMLA leave. Ritenour v Tenn Dept of Human Services (.pdf).
Where, and Where Not To Get FMLA Information
Occasionally I spot a piece of FMLA “advice” on the Internet that just makes me chuckle – and that makes me confident that the FMLA will remain a terrific source of business for employment lawyers for a long time to come. Much of it isn’t outright wrong, but ends up being so superficial that it completely misses the mark. Take a recent post on ehow.com for example.
Successor Employers – Meet the New Boss, Same As The Old Boss
Suppose a retailer declares bankruptcy. Several of its leases are sold off to another retail chain, which then remodels the stores, stocks them with its own merchandise, and opens them under its own name. If this retailer hires some of the bankrupt company’s employees, are those employees new hires under the FMLA, or might they have the right to take FMLA leave immediately, without waiting 12 months or working 1250 hours for the new company?
Podcast No. 16: Can I Contact an Employee’s Doctor Directly?
What can you do when you receive a medical certification from an employee, but you think it might be fraudulent, or you just don’t understand what the doctor has written? In these instances, does the FMLA allow you to contact the employee’s health care provider directly to inquire? In this podcast, we explain the circumstances under which an employer may authenticate or clarify medical certification – without violating the rules.
Our Favorite FMLA Tweets (and What To Do About Them)
Have you ever searched Twitter for the term “FMLA”? I have. Some of what you find is insightful and informative information for employers, but you will also run across some interesting commentary from employees. Here are a few of my favorite employee FMLA tweets from the past few months:
Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim.
Employers frustrated with their employees’ lack of communication during FMLA leave have found a friend in the Seventh Circuit Court of Appeals. In what must be described as a solid win for employers, the appellate court (which covers IL, IN and WI) affirmed the dismissal of a former employee’s Family and Medical Leave Act claim against the company that fired her after she failed to provide proper notice under the company’s policies for an extension of leave.
FMLA FAQ – What’s the Deal With the Poster?
I know we have to post the DOL’s “general notice” poster somewhere, but what exactly are we required to do with it?