In July 2017, a jury in Poweshiek County, Iowa returned a verdict against Grinnell Regional Medical Center (GRMC) for $4.5 million in an age and disability discrimination lawsuit.   The Grinnell Regional case was one of a trio of million dollar plus verdicts Iowa juries returned in the spring and summer of 2017 in employment discrimination cases.   In all three cases, the lion’s share of the damages awarded was attributable to the employee’s emotional distress.   In the GRMC case, 95% of the damage award ($4.28 million) was for emotional distress, with only 5% awarded for back pay.   Not included in these numbers were amounts the court awarded post-trial, including front pay ($241,746) and attorney’s fees ($615,208), which were added to the verdict in later court rulings.  In the end, the economic damages of the former employee constituted 10% of the total damages, with emotional distress constituting 90% of the award.

On June 7, 2019, the Iowa Supreme Court reversed the jury verdict and ordered a new trial (Hawkins. v. Grinnell Regional Medical Ctr. et al).   While the ruling was obviously a big win for GRMC, unfortunately, the reversal was based upon very narrow grounds relating to the admission of an exhibit that contained inadmissible hearsay.  The court chose not to address two issues GRMC raised that would have the most lasting impact on the employment litigation landscape. Those issues are:  1) whether the emotional distress award was excessive; and 2) whether plaintiff’s counsel’s use of the so-called “golden rule” argument during closing was improper because it provoked the jury to award damages based upon an emotional appeal rather than on the evidence.   These same issues will continue to arise in future cases; indeed, they are likely to arise in the re-trial of the GRMC case.   We can only speculate why the court ruled the way it did.  But, in our view, the court missed an opportunity to provide meaningful precedent on an important issue facing Iowa employers.

The prospect of a potentially ruinous jury verdict arising out of an employment discrimination claim is the result of an anomaly in Iowa Civil Rights Act jurisprudence.    It started in 1991 when Congress to amended Title VII and the ADA  to allow compensatory damages (i.e. emotional distress), punitive damages, and jury trials.   Before 1991, there was no right to a jury trial, and the only monetary relief available was back pay, front pay, and attorney’s fees.  One of the legislative compromises in the 1991 amendments was to include caps on compensatory and punitive damages, depending upon the size of the employer.   For small employers (less than 50 employees), the damages cap (which does not include back pay or front pay) is $50,000.   The maximum compensatory and punitive damage award for the largest employers (500 plus employees) is $300,000. Thus, in exchange for the probability of more and larger jury awards, employers received a certainty of avoiding runaway verdicts for non-economic damages and punitive damages.

In contrast, the ICRA has no damages caps.   But, for the first 14 years of the Title VII amendments it did not seem to matter very much because most discrimination cases alleged violations of federal law and were tried in federal court.   Plaintiffs typically avoided state court because the Iowa Supreme Court ruled twice (in 1990 and again in 1996) that no jury trial was available under the ICRA. Iowa employers received the benefit of the statutory caps and were protected for the most part from runaway verdicts consisting primarily of non-economic damages.

Everything changed in 2005.  In McElroy v. State the Iowa Supreme Court overruled its prior precedents, and held that a plaintiff alleging ICRA violations is entitled to a jury trial.  Ironically, one of the reasons the court so ruled was to make the ICRA more like Title VII and the ADA after the 1991 amendments.   But, in trying to level the playing field between the state and federal laws, the court actually made it uneven the other way, because the ICRA has no damages caps.   McElroy effectively gave discrimination plaintiffs in Iowa state court the benefit of the employee’s bargain contained in the Title VII Amendments, but neglected to provide employers with their side of the deal: caps on compensatory damages.  Iowa plaintiffs now had the best of both worlds:  a jury trial under the ICRA, with no damages caps.  Adding insult to injury, employers have a much lower probability of winning on summary judgment in state court.  The result, not surprisingly, is that the vast majority of employment discrimination cases since 2005 have been filed in state court alleging only ICRA violations.   It was only a matter of time before we ended up with runaway jury verdicts in which non-economic damages dwarfed any other relief

The most effective fix to this problem is a legislative one: amend the ICRA in a way that gives Iowa plaintiffs the same rights and remedies allowed under the federal anti-discrimination laws, including the caps on compensatory damages.   Unfortunately for employers, the legislature has apparently not had the appetite to make this change in the law.    The next best solution is for the Iowa Supreme Court to provide meaningful standards so as to prevent runaway emotional distress damages that dwarf a plaintiff’s economic harm. Since the court created this anomaly, it would have been fitting to use the GRMC case to impose some reasonable limits on emotional distress awards.   Who knows when, if ever, the Court will be presented another such opportunity.  Employers are trying fewer and fewer cases, perhaps paying more to settle because they don’t want to be the next victim of a runaway verdict.

Another excellent post from our colleague Brandon Underwood:

A good rule of thumb that trial and appellate lawyers learn early in their careers is that you generally forfeit arguments you don’t make. Suppose that a defendant takes a case to trial and loses, only to realize in briefing its appeal that the plaintiff’s lawsuit was untimely under the statute of limitations.  Too bad: the argument is too late, and so the appeals court will ignore it, even if the plaintiff’s lawsuit really was too late.  The defendant waived that argument.

But the rule has at least one exception: arguments about a court’s jurisdiction. Unlike most other arguments, a party may challenge a court’s jurisdiction to hear a case for the first time at any stage in the case—even in front of the Supreme Court.  In other words, challenges to a court’s subject-matter jurisdiction can’t be waived, unlike the ill-fated statute-of-limitations challenge.  (As a corollary, courts in our adversarial system don’t typically raise arguments on their own.  Except subject-matter jurisdiction, which courts must raise on their own.)

On June 3, 2019, the Supreme Court resolved a conflict in lower courts about whether a requirement in Title VII of the Civil Rights Act of 1964 is jurisdictional. Under Title VII, before a plaintiff may sue in court, she must first file a charge complaining of an unlawful act with an administrative agency—for instance, the Iowa Civil Rights Commission.  This is part of what’s known as exhausting administrative remedies, and federal courts have long held that a plaintiff who fails to exhaust administrative remedies can’t sue in court.  But courts disagreed about whether this charge requirement was jurisdictional, leading to conflict about whether the requirement may be waived or not.

Fort Bend County, Texas v. Davis (No. 18-525) unanimously holds that Title VII’s charge-filing requirement is not jurisdictional and thus may be waived if not raised.  Lois Davis filed a charge of sexual harassment and retaliation with the agency, and later tried to supplement her charge with a complaint of religious discrimination.  The district court granted summary judgment for Davis’s employer on all these claims.

On appeal, the appellate court remanded the religious-discrimination claim only for trial. Back in front of the district court, the employer argued for the first time that Davis hadn’t raised the religious-discrimination claim in her charge.  The district court agreed, ruling that it accordingly lacked jurisdiction.  The appeals court then reinstated Davis’s claim, holding that Title VII’s charge-filing requirement is not jurisdictional and had been forfeited when Davis’s employer failed to raise it earlier.  The Supreme Court agreed with the appellate court.

In a short opinion, the Supreme Court reasoned that Title VII’s charge-filing provisions read like a party’s non-jurisdictional procedural obligations, not like jurisdictional obligations. These procedural obligations compel a plaintiff to submit information to the agency and wait a specified amount of time before filing a lawsuit.  The provisions do not say they are jurisdictional.  And although courts must enforce the charge-filing requirement if it is properly raised, a party forfeits the challenge by waiting too long.

The day-to-day effects of Davis are, to be sure, pretty limited, as the Supreme Court noted.  Defendants have good reason to promptly raise the objection: to rid themselves of lawsuits.  On the other hand, plaintiffs, the Supreme Court observed, “would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”

In other words, plaintiffs in most cases will continue to file administrative charges as required by law. And in those cases where the plaintiff doesn’t, defendants in most cases will not waive the challenge by failing to bring it up. Davis will figure in only unusual cases, like Davis itself.

 

My Fredrikson & Byron colleague Brandon Underwood is the author of today’s guest-post:

On May 31, 2019, in Webb v. Farmers of North America, Inc. (No. 17-3456), the Eighth Circuit dismissed an employer’s appeal challenging how the lower court had read an arbitration agreement.  The employer, citing the agreement with its employee, had actually persuaded the lower court to require the employee to arbitrate his case.  So why the employer’s appeal?

After the district court ordered him to arbitrate his case, the employee challenged who would arbitrate it, and the court sided with him.  The Eighth Circuit then tossed the employer’s appeal, holding that it lacked jurisdiction, primarily because the case wasn’t yet final.  Federal appellate courts don’t ordinarily review non-final—or, “interlocutory”—orders.

But this is an employment law blog, and those are procedural points. Webb contains a lesson for employment lawyers (any lawyer who reads or writes contracts, really) because its underlying dispute was about an arbitration agreement’s wording.

Under the agreement, the parties agreed to arbitrate their claims under “the rules” of the American Arbitration Association, a well-known arbitral body.  Even so, the plaintiff contended this provision didn’t require the AAA to be the arbitrator; a non-AAA arbitrator could preside, as long as it applied the AAA’s rules.  The district court agreed, finding that if the employer had meant for all the parties’ disputes to be submitted to the AAA, it could have said so.  So the dispute would be arbitrated—just not necessarily before the AAA.

It’s worth emphasizing that the Eighth Circuit’s opinion in Webb doesn’t address the merits of the district court’s ruling.  Its correctness will have to be reviewed, if ever, in a later appeal.

But the case highlights the importance of specifically designating who will arbitrate employee disputes, rather than assuming that a reference to a particular body’s rules is enough.  If the arbitration agreement in Webb had specified that the arbitration would be administered by the AAA (or another body) under its rules, the district court would have lacked grounds to find the agreement ambiguous.  Indeed, construction-industry contracts between contractors often contain this term or one similar to it.  These contracts may supply useful models for designating an arbitral body.  By specifying a particular arbitrator, parties can avoid having to reach agreement on mutually acceptable arbitrator, as the district court in Webb directed.

Sometimes employers become conditioned to believing that an employee who has recently used FMLA leave is effectively immune from discipline or discharge.   It is no doubt true this employee presents a heightened litigation risk, but when the adverse action is handled properly the employer can mitigate that risk or at least make the potential claim more defensible.  A recent opinion from the Eighth Circuit shows the importance of creating a discipline record that will negate any inference the discipline was motivated by an employee’s FMLA usage.

The case is Beckley v. St. Luke’s Episcopal-Presbyterian Hospitals (8th Cir. 5/16/2019).  The plaintiff, Karen Beckley, worked as a surgical technician in the operating room of a hospital.   She was promoted to the position in 2012 while using intermittent FMLA leave.   Beckley continued to be approved and used intermittent FMLA for the next year, until August 2013.   She again qualified for FMLA intermittent leave starting in April 2014 and continued to use the leave until her termination on March 20, 2015.

Starting in March 2014, Beckley started having performance problems. She received a “Level 1” warning on March 10, 2014; a “Level 2” warning on August 12, 2014, and a “final” warning on August 25, 2014.  All of these warnings related to Beckley’s failure to respond appropriately to emergency requests while on call.

In addition to the formal warnings, Beckley also received counseling for performance issues.   On March 13, 2014 she was counseled for being inattentive to details.  During a March 30, 2014 performance review Beckley’s supervisor recommended she take specific steps to help her focus on her role as a technician and decrease the amount of time taking and repetitive questioning during a procedure.  On April 7, 2014 the Hospital against counseled Beckley about the need to focus on the task at hand.

The event precipitating the termination occurred March 9, 2015.   During a complicated surgical procedure, Beckley became contaminated in the operating room when she touched a non-sterile object.  She also left the operating room to use the bathroom without telling the surgeon, and was gone for 10-15 minutes.   Someone else entered the operating room during her absence to assist with the procedure.  Beckley denied she entered a sterile field while contaminated.  She admitted she left the operating room for 15 minutes, but seemed to think it was not a big deal, as she denied it was necessary for anyone to cover for her.   She was terminated about ten days later.

Beckley sued the Hospital for FMLA retaliation, alleging she routinely suffered adverse employment actions following the exercise of FMLA leave.   The key fact Beckley relied upon to support her FMLA retaliation claim was the temporal proximity between her FMLA use, discipline, and ultimately, her termination.  Beckley also claimed she was treated differently than employees not on FMLA leave for what she considered to be minor infractions.  Lastly, she pointed to other evidence of the Hospital’s animus toward FMLA, including a statement from another employee that she needed to “watch herself” with regard to FMLA usage, and a supervisor’s question whether she could schedule doctor appointments outside of work hours,

In affirming the grant of summary judgment to the Hospital, the court found that Beckley’s use of FMLA leave without adverse consequences for nearly 18 months between October 2012 and March 2014 negated any inference that FMLA usage motivated the three warnings she received starting in March 2014. The court found persuasive the consistent record of discipline arising out of failure to abide by the on-call policy as well as other performance issues.   There was little doubt Beckley was on notice of her performance problems before she was terminated. The court found Beckley’s claims of different treatment were only her subjective belief, and the adverse comments about FMLA use were mere “stray remarks” that did not result in tangible injury or harm.

The Beckley opinion is an important reminder that an employer’s hands are not tied because an employee has recently exercised rights under FMLA.    Consistent and documented discipline of bad performance or behavior, especially when combined with evidence that of FMLA usage without consequence before the performance or behavior issues, will provide a persuasive defense.

Stress [stres] (noun): a state of mental or emotional strain or tension resulting from adverse or very demanding circumstances.

Almost all types of work is stressful at least some of the time. Some jobs are inherently stressful.  So, how does an employer navigate an employee’s request for accommodation that is based upon a medical condition, like post-traumatic stress disorder, that often manifests in stressful work situations?   A recent ruling from the U.S. Court of Appeals for the Sixth Circuit shows there are limits to an employer’s obligation to accommodate conditions like PTSD that are triggered by particular work circumstances.

The case is Tinsley v. Caterpillar Financial Services (6th Cir. 3/20/2019).    The source of Tinsley’s work stress was her supervisor.  She claimed her supervisor’s management style and decisions were so distasteful that it triggered her PTSD.   Tinsley asked her employer to accommodate her PTSD condition by assigning her to a new supervisor or permitting her to take medical leave.   The company allowed 18 weeks of intermittent leave, but denied the request for a new supervisor.   Tinsley ultimately resigned, and then sued, claiming the employer’s refusal to allow her to work under a different supervisor was an unlawful failure to accommodate under the ADA.

Tinsley worked for Caterpillar Financial for almost 20 years, starting as a paralegal but eventually moving to the business side of the company. In 2013, she was promoted to the position of Business Analyst III.  She worked on a team of employees and reported to a team leader.   It was not the team leader, but the team leader’s supervisor, Paul Kaikaris, that was apparently the cause of Tinley’s stress.

The problems started when Tinsley asked to be removed from her team because the combination of her family and work responsibilities caused more stress than she could handle.   Kaikaris responded by offering to work with Tinley to reduce her workload by reassigning some projects.  However, about two months later, Kaikaris expressed concerning about Tinsley’s work performance.   In her performance review Tinley received a “did not meet expectations” rating, which resulted in a performance improvement plan.  Tinsley refused to sign the PIP because she disagreed with it and believed it was not accurate.   She claimed Kaikaris provided a poor rating because she had complained to him that she did not approve of her co-workers bouncing stress balls off the ground.

Tinsley then began a practice of submitting doctor’s notes and successive requests for medical leave based upon “mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment, and a manager’s reckless indifference to my mental and emotional well-being.”     After another five weeks of medical leave, Tinsley’s doctor allowed her to return to work with no restrictions.   But, the doctor qualified the “no restrictions” with a strong recommendation that she work in a different environment and under a different manager.  Otherwise, the doctor warned, Tinsley would be at “significantly increased risk for another exacerbation [of PTSD].”

Tinsley continued to request additional medical leave and a new supervisor. Eventually, the employer had enough and told Tinsley it could no longer accommodate her requests for leave, and did not believe her request for a transfer to a different supervisor was necessary or a reasonable accommodation. She resigned and filed a charge of discrimination, which ended up in a lawsuit.

The key question the Court of Appeals addressed was whether Tinsley’s PTSD that was triggered by work stress qualified as a “disability” under the law.   To qualify as a disability, the condition must substantially limit a major life activity.   In Tinsley’s case, she claimed her PTSD impacted only the major life activity of working.  Even with the 2009 ADA Amendments that made it easier to prove a condition is a disability, the court ruled Tinsley could not prove her PTSD substantially limited her in the major life activity of working.  The evidence showed that Tinsley did not have a limitation on performing a class of jobs or a broad range of jobs.  Rather, she could not work in her particular job, under her particular supervisor, because the supervisor’s management style triggered the PTSD.    Tinsley admitted she had no problem with her work generally, just under the particular manager.

Tinsley provides some important lessons to employers responding to accommodation requests from employees suffering from a stress related condition:

First, you should presume at the outset, as Caterpillar did in this case, that the employee’s condition qualifies as a disability, and work with the employee to find a reasonable accommodation.   Even if it is unclear whether accommodation is legally required, making the effort is the right thing to do.  Plus, if the situation ends up in a legal claim, such efforts will always make the claim more defensible.

Second, it is important to remember the Tinsley court ruled on the basis that the employee’s PTSD was not a disability.   The court did not address whether assigning the employee to a different supervisor would have been a reasonable accommodation.   So, employers should be careful about relying on this case to conclude that such a reassignment would never be reasonable.  It may not be, and with the facts of the Tinsley case, probably would have not have been.  But, it is a question that should be carefully considered based upon the employer’s circumstances, the job in question, and the medical evidence.

On the other hand, it may very well be unreasonable to move the employee to a different department or assign a different supervisor if the cause of the employee’s stress is a specific person or a situation associated with a particular job.    But, even when you are right to refuse the requested accommodation, seldom does it go well with the employee thereafter.    These employees present significant litigation risks.  If the refusal to accommodate means the employee resigns or is terminated, it is never a bad idea to offer severance in exchange for a release.

Iowa employers should pay attention to a recent ruling from a New Jersey Appellate Court , Wild v. Carriage Funeral Holdings, Inc. 3/27/2019.   The Wild opinion is the most recent case addressing the rights of employees who use medical marijuana.  Although the Court was addressing the question under New Jersey law, an Iowa court may it find it persuasive when the issue comes up here, because of important similarities between the Iowa and New Jersey medical marijuana laws.

The New Jersey Compassionate Use Medical Marijuana Act, like the Iowa medical marijuana law, allows a person to use medical marijuana to treat certain debilitating medical conditions. Like the Iowa law, the New Jersey law requires a physician to certify a person has a medical condition for which medical marijuana use is allowed.  Most important, similar to the Iowa statute, the New Jersey medical marijuana law provides no employment protections for medical marijuana users. In fact, the New Jersey law states that “nothing” in the statute requires an employer to accommodate a medical marijuana user.

The plaintiff in the New Jersey case was employed as a funeral director for a chain of funeral homes.   In 2015 he was diagnosed with cancer.  His physician provided a certification that allowed the plaintiff to use medical marijuana under the Compassionate Use Act.

In May 2016, the plaintiff was involved in a car accident while driving for his job. He was taken to the emergency room by ambulance, where he told the treating physician he was a medical marijuana user. The opinion does not say why the plaintiff disclosed this information, but presumably it was because New Jersey law allows employers to conduct post-accident drug testing if there is a reasonable suspicion drug or alcohol use was a cause of the accident. But, in this case, the ER physician did not order a drug test because he did not believe the plaintiff was impaired at the time of the accident.

After the plaintiff was released from the ER, his father told the employer that plaintiff was a licensed medical marijuana user.   Again, it’s not entirely clear from the ruling why this disclosure occurred, but it was probably because the employee expected to be drug tested when he returned to work.   Indeed, that is exactly what the employer required.

So, the plaintiff went to an urgent care clinic the same evening to be tested.   The clinic doctor told plaintiff the drug test would be positive because of marijuana as well as prescription pain killers; the doctor also expressed that testing under these circumstances was illegal, and he refused to draw blood for the test.  But, for some reason, the clinic still administered a urine and breathalyzer test.   No one told the plaintiff the results of these tests, and there was no evidence any test results were given to the employer.

Several days later, the plaintiff’s boss told him “corporate” was unable to handle his marijuana use, and he was being terminated because “they found drugs in your system.” However, in the official termination letter from the corporate office, it stated plaintiff was terminated not because of his drug use, but because he failed to comply with a company policy that required employees to disclose use of medication that may adversely affect their ability to perform assigned job duties safely.

The plaintiff sued under the New Jersey law that prohibits discrimination on the basis of disability. He claimed the funeral home could not lawfully terminate his employment, despite any drug test results, because his cancer was a qualifying disability, and he was legally treating the cancer in accordance with his physician’s directions and in compliance with the Compassionate Use Act. The trial court dismissed the lawsuit because the Compassionate Use Act does not contain employment-related protections for licensed users of medical marijuana, and, in accepting the plaintiff’s own allegations as true, the termination occurred because of a positive drug test and in violation of the funeral home’s drug use policy.

The Court of Appeals reversed the trial court, and reinstated the lawsuit.   The Court was not persuaded the lack of express employment protections in the law carried the day.   The language of the statute states, “[n]othing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.”  What that means, the Court reasoned, is that the Compassionate Use Act “intended to cause no impact on existing employment rights…it neither created new employment rights nor destroyed existing employment rights.”   Just as the law imposes no burden on employers, the Court concluded,“it negates no rights or claims available to plaintiff that emanate from the [Law against Discrimination].”

In short, the medical marijuana law did not change the existing law that bars disability discrimination against employees.   The plaintiff alleged he suffered from cancer, and for that reason, used medical marijuana.    The Court concluded the plaintiff should have the opportunity to prove he was fired because of his cancer, and that the employer’s stated reliance on his drug use was a pretext for disability discrimination.

In another post on medical marijuana, we warned that this very situation could occur under Iowa’s medical marijuana law. Even though a confirmed test for marijuana does not itself qualify as a disability, the underlying medical condition for which medical marijuana is used very well might.   The employer’s problem in Wild is that it appeared to act too fast based upon partial information.  Employers should move slowly and seek advice from counsel when they know an employee with a positive marijuana test has certification to use medical marijuana.

Because so few employees are represented by a union (just over 6 percent of private sector employees in the U.S.) most employers don’t have to deal with the National Labor Relations Act (NLRA) on a regular basis, if ever.   But, it’s important to remember that employees who are not represented by unions also have NLRA rights, and most employers are also subject to the law.   An employer in New York recently found that out the hard way when an employee it terminated for misconduct was reinstated by the National Labor Relations Board, a decision which was then affirmed by an appellate court.

The case is Meyer Tool, Inc. v. NLRB (2nd Cir., 2/26/2019).   The events leading to the employee termination began at a department meeting, where a manager announced the company was creating a new night-shift supervisor position.    The reason for the new position was that employees on the night shift were underperforming and took excessive breaks.   Three employees questioned the need for a night supervisor and the qualifications for the position.   One of the questioning employees, Cannon-El, also raised a question about the poor air quality in the plant, seemingly justifying the frequent breaks of night shift employees.  To address the employee complaints, the manager running the meeting summoned a company vice-president. When the vice-president arrived, he apparently got into an argument with Cannon-El.  The court stated he “began to yell at Cannon-EL while standing over him, ‘their faces inches apart.’”

The next day, Cannon-El and the other two employees who raised concerns about the new night supervisor position went to HR to complain about the vice-president’s conduct the night before. As he was giving his written statement to the HR representative, Cannon-El got into a “heated verbal exchange” with her.  The HR representative said she would give Cannon-El “to the count of three” to leave the premises, or she would call the police.    The HR representative said “one”, and Cannon-El finished by saying “two, three,” and “I have done nothing wrong.”   The police were called; Cannon El briefly remained in the hallway near the HR Department and then went to the lobby to wait for the police.  Meyer tool suspended and later terminated Cannon-El for refusing to immediately leave the premises when asked.

Cannon-El filed an unfair labor practice charge with the National Labor Relations Board arising out of his suspension and termination.   The NLRB ruled Cannon-El was terminated because he engaged in protected, concerned activity, and ordered him to be reinstated, with back pay.

On appeal to the Second Circuit, Meyer Tool argued that Cannon-El had not engaged in concerted activity because he was pursuing his individual, personal concerns when he went to HR to complain about the vice-president’s yelling at him the night before.   The court disagreed, because the other two employees who complained to HR at the same time raised similar concerns, transforming a single employee’s complaint into group activity.

Meyer Tool also contended that, even if Cannon-El engaged in concerted activity, he lost his legal protection by acting in an intimidating and abusive way to the HR representative.   Although there are circumstances in which an abusive employee forfeits protection for what is otherwise concerted activity, the court ruled that, in this case, Cannon-El was not sufficiently abusive.  His conversation with the HR representative, “while heated, did not disrupt any other employee’s work or even cause those nearby to close their office doors.”  The argument involved raised voices, but Cannon-El did not use obscenities, engage in physically intimidating conduct, make threats, or disturb customers.

This type of ruling can be very frustrating for employers.   Most agree that employers should not be expected tolerate insubordination, arguments, and verbal abuse from employees.   The takeaway from this decision, however, is not that employers have to tolerate such conduct.  Rather, it is important to understand the big picture of what happened before making the decision to terminate.   There are two important facts that probably led to the result here.  First, Cannon-El was not the only employee involved; the two other employees who participated in complaining is what made the activity “concerted.”   Second, although not a stated basis for the decision, the implication of the court’s opinion is that the company may bear some of the fault because of the bad-conduct of the vice-president yelling at Cannon-El may have contributed to the conditions that led to Cannon-El losing his temper the next day.    Even if you think the law is on your side, bad facts make for bad rulings. Terminating an employee for abusive behavior while tolerating similar behavior in management will sometimes cause a judge or jury to give the employee the benefit of the doubt.

On March 14, the Department of Labor issued an opinion letter to answer the following two questions about FMLA leave:  1) may an employer delay designating leave as FMLA covered, even if the leave is for a FMLA qualifying reason, to allow the employee to exhaust paid leave first;   2) may an employer expand an employee’s FMLA leave beyond the statutory 12 week entitlement.    In the DOL’s opinion, the answer to both questions is “no.”

The situation the opinion letter addresses is quite common: an employee wants to use available paid leave before starting the clock ticking on the 12 weeks of FMLA leave. By delaying the designation of the leave as FMLA covered until after the paid leave is exhausted, the employer has effectively granted the employee additional weeks of protected leave.

I have always thought the FMLA regulations on this point are fairly clear: the employer is required to designate FMLA qualifying leave as covered by FMLA; to the extent an employee has accrued paid time off, the employer can require it to run concurrently with FMLA. This rule is a great benefit to employers in managing employee leave by ensuring that the FMLA job protected leave lasts no longer than 12 weeks, regardless of how much paid time off the employee has accrued.

Despite the seeming clarity of the regulation, the DOL issued two prior opinion letters (in 1995 and 1996), that took the position that an employer had the right, but was not required, to designate FMLA qualifying leave as FMLA covered (so long as it did not deny employees their rights under FMLA).   The Department reasoned that this permissive approach was consistent with FMLA’s provision that allows employers to extend more leave than FMLA requires.   However, in the March 14 letter, the DOL emphasized that the designation of FMLA qualifying leave as covered leave is mandatory, and the maximum number of weeks of FMLA leave to which an employee is entitled in a year is 12 (or 26 is the case of military caregiver leave).  An employer remains free to grant leave beyond the 12 week requirement, but it cannot be considered FMLA leave.    The March 14 letter expressly withdrew these prior opinion letters.

DOL may have taken a more permissive approach in the past because the practice of allowing an employee to use paid leave before starting the FMLA clock typically causes no harm to the employee.  In fact, it is usually a great benefit to the employee who gets the extra leave.   From that perspective, it’s difficult to discern what harm the Department is trying to remedy with this new opinion.

The answer may be a 2014 ruling on this subject from the Ninth Circuit, Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1246, 1244 (9th Cir. 2014).    The plaintiff in that case, Maria Escriba, sought two weeks of leave to care for her ill father in Guatamala.    She informed her supervisors of the FMLA qualifying reason for the leave, but expressly requested the time be deemed as vacation leave, so she could save FMLA leave for future use.  When Escriba failed to return to work after two weeks, she was terminated.  Escriba filed suit, alleging her termination interfered with her FMLA rights.  She claimed, based upon the regulations, the employer was required to designate her leave as FMLA leave.  Escriba argued she was not allowed to waive her FMLA rights by electing to use vacation leave before FMLA leave commenced, despite the fact that is what she specifically requested.

On appeal, the Ninth Circuit rejected Escriba’s arguments, ruling that the two weeks of vacation leave she requested were not FMLA protected, even though she was on leave for an FMLA qualifying reason.   The court held that, “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”   Because Escriba’s two weeks of leave was not FMLA protected, the court concluded the employer did not interfere with her FMLA rights by terminating her employment.

Escriba was a win for that particular employer, but ironically was a loss for employers generally.    What was previously a employer granted discretionary benefit (allowing exhaustion of paid leave before starting the FMLA) was transformed into an employee right (entitlement to exhaust paid leave before starting FMLA).   Once the employee has the right to determine when the FMLA clock starts, the employee potentially gains the opportunity of extra leave beyond the 12 week statutory entitlement.   The employer’s ability to effectively manage FMLA leave, granted to it by regulation, was out the window.

The DOL specifically mentioned in footnote 3 of the March 14 letter its disagreement with the holding  Escriba.   While the Department’s opinion letter is not binding authority, courts often defer to the agency’s interpretation of the law.   Perhaps the Department issued this letter as part of an effort to confine to the Ninth Circuit the transformation of an employer managed benefit into an employee entitlement.

What is the takeaway for employers?   First, if you want to protect your prerogative to manage FMLA leave, then you need to exercise it by following the DOL’s guidance in the March 14 opinion letter; namely, you should always designate as FMLA covered leave any leave that is FMLA qualifying.   If the employee has available paid leave, the two can run concurrently.     If you want to be more generous,  make it clear that additional leave is available only after FMLA leave has been exhausted, and does not necessarily come with FMLA protected rights.   Second, it may help employers reinforce the rule to supervisors and HR personnel who may not recognize the employee does not have a choice in determining when the designation of FMLA covered leave occurs.    Finally, while there is no ironclad guarantee that other circuits will follow the DOL’s opinion letter, relying on a DOL Guidance supports an employer’s good faith defense it was trying to comply with the law, even if a court later finds the conduct to violate FMLA.

In a widely publicized move, the U.S. Department of Labor on March 7 proposed an update to the Fair Labor Standards Act (FLSA) regulations governing employees who are exempt from overtime.   The most significant change in the proposal is to raise the minimum salary an employee must earn to qualify as exempt from overtime.  The existing minimum salary is $455 per week; the new proposed minimum salary is $679 per week, a 49 percent increase.    An employee must also satisfy one of the “duties” tests to be exempt from overtime (e.g., executive, administrative, professional), but the proposed rule does not change any of those tests.

Most employers probably remember, with some chagrin, the DOL’s 2016 rule that more than doubled the salary basis to $913 per week.   Businesses were scrambling to adjust their job descriptions and payrolls in anticipation of the new rule’s  December 1, 2016 effective date.   Then, eight days before, on November 22, 2016, a district court in Texas issued a surprise nationwide injunction preventing it from going into effect.   For a refresher on the injunction and its aftermath, see our posts here, here, and here.

On August 21, 2017, the same federal judge, Amos Mazzant, issued a final ruling invalidating the $913 per week salary basis.   Surprising to some, the Department, now with a Trump appointed Secretary, appealed the judge’s final ruling to the U.S. Court of Appeals for the Fifth Circuit.   But, the Court of Appeals agreed to hold the appeal in abeyance while the DOL undertook further rulemaking to consider adjusting the salary basis to something lower than $913 per week in the 2016 Rule, but more than the $455 per week that was previously in effect (and remains in effect today).  Perhaps not coincidentally, the proposed $679 per week proposed salary basis is almost exactly in the middle of $455 and $913.

So, what happens next?   On the rulemaking side, the public will have 60 days to comment on the proposed rule.  The Department will then consider those comments, and issue a final rule, probably sometime in 2020.   More importantly though, what will happen if, as is likely, the DOL’s final rule maintains the $679 per week salary basis?    If challenged, is a court more likely to find a 49 percent increase is valid because it is less of an increase than in the 2016 rule?   Does the validity of the DOL’s rule depend upon something so arbitrary as a federal judge’s opinion about what persons in certain occupations should earn?

Many employers and business advocacy groups agree $455 is probably too low a salary basis given inflation that has occurred since it was established. They can probably also live with the proposed $679 per week (indeed, this salary level was chosen after considerable input from interested parties).   But, despite the DOL’s effort to appease all interested stakeholders, there is a good chance some interest group will file suit to challenge the new rule.   The issue is not so much the amount of the salary threshold, but whether the DOL has the right in the first place to use a minimum salary as part of the test to determine whether an employee is exempt from overtime.    Commenting on Judge Mazzant’s ruling on the Obama era rule, I said in a September 12, 2017 post:

In the ruling on the preliminary injunction, Judge Mazzant questioned whether the DOL has the legal authority to establish a salary basis test.   He reasoned the FLSA itself defines Executive, Administrative, and Professional exemptions only with respect to duties, and says nothing about the employee’s salary.  Therefore, he ruled, Congress did not intend that the amount of an employee’s salary be a factor in determining whether the employee was exempt; only the duties are relevant.   By including a salary basis test in addition to a duties test, Judge Mazzant concluded, at least preliminarily, that the DOL likely exceeded its statutory authority.

It is important to note that, in the final ruling, Judge Mazzant backed away from his initial opinion that questioned the DOL’s authority to use the salary test at all. Instead, he concluded merely that $913 per week too high because it likely would have the effect in many cases of eclipsing the duties test, essentially rendering the duties irrelevant.   In other words, the salary was so high that many employees who satisfied the duties test for one of the executive, administrative, or professional exemptions would still be classified as non-exempt because their salary was less than $913 per week.

In addition to questioning the legal basis for the minimum salary, there are practical reasons the salary basis test should be abandoned.   First, the salary basis applies to the entire country, and does not take into account regional and local economic conditions.   A $679 per week salary means something different in Des Moines than it does in San Francisco or New York.    Second, in the modern era the salary basis has become a political weapon used to benefit favored constituencies, depending upon the party in power.   Third, the proposed rule contains a provision that allows the Department to change the salary basis every three years.   But, the rulemaking process is so slow that it takes at least two years for a rule to get from the proposal to the final stage.  Moreover, once the new salary basis is in place, it could once again be subject to legal challenge.    Lawyers and lobbyists love this process, but whether it actually benefits ordinary employees is questionable.  Finally, lawyer and blogger Jon Hyman makes an excellent point that I have not seen elsewhere, but is important:  that is, the salary basis test simply does not matter.   If an employer pays someone less than $679 per week, that person is probably not the sort of employee who exercises the type of discretion and judgment required to satisfy the duties part of the test.  It is the duties test that employers should really be worried about.

So what’s the takeaway from all this?  Employers, get ready for the new salary basis in 2020, but don’t be surprised if it never goes into effect.

 


Claims of sexual harassment typically involve the behavior of fellow employees.   But, an employer’s potential liability for sexual harassment also extends to conduct by a non-employee, such as a customer, client, or patient, that creates a hostile work environment.

The principle of employer liability for harassment by a non-employee third-party presents particular challenges to the long term care industry.   The problem occurs when the harasser is a resident or patient with dementia or other diminished mental capacity.   Physical violence or sexually inappropriate is sometimes associated with Alzheimer’s or other forms of dementia.   In many cases, courts have recognized behavior that might qualify as sexual harassment in other contexts does not create a hostile work environment for care facility employees directly caring for such patients, because the employee should reasonably expect it to occur.  The unique circumstances involved in caring for dementia patients essentially makes tolerating at least a certain level of bad behavior part of the job.

However, a recent case from the Fifth Circuit (covering Texas, Louisiana, and Mississippi) shows that long term care employers do not always get the benefit of the doubt when it comes to a dementia patient’s alleged sexual harassment of a care center employee.   The case is Gardner v. CLC of Pascagoula, LLC, (5th Cir. 2-7-2019).  The plaintiff in Gardner was a Certified Nursing Assistant (CNA) at an assisted living facility.   She was experienced in working with mentally disabled patients, and was trained in de-escalation and defense tactics for aggressive patients.  Gardner often worked with patients who wither “either physically combative or sexually aggressive.”

The harasser was an elderly resident who lived at the facility for eight years.   Gardner worked with him for three of those years.  The resident had a reputation for groping female employees and becoming physically aggressive when reprimanded.   He was diagnosed with dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.   He was reported to have a “long history” of violent and sexual behavior toward both patients and staff.

Gardner alleged she experienced on a daily basis the resident physically grabbing her and repeatedly making sexual comments and requests.   She documented the resident’s behavior in his chart and routinely complained to supervisors about it. The resident was at one time transferred to a different wing of the facility because of his behavior, but the employer refused the Gardner’s request to be reassigned so she would not have to care for him.  When she attempted to discuss her concerns about the resident’s behavior with her supervisor, there was evidence Gardner’s supervisor laughed and told her to “put [her] big girl panties on and go back to work.”

The facility terminated Gardner after an incident that occurred while she was helping the resident in question attend a therapy session.   As Gardner was trying to help the resident out of bed, he tried to grope her, then punched and pushed her.  Although Gardner disputed it, the facility claimed she swung her fist over the resident’s head and her arm brushed the top of his head in the process.  As she left the resident’s room Gardner uttered an expletive about refusing to do anything else for the resident.  Gardner sustained serious enough injuries in the incident that she went to the ER and ended up missing three months of work. Shortly after returning from leave, the facility fired her for insubordination (refusing to work with the resident), attacking the resident, and violating his rights by swearing in front of him.

The trial court dismissed Gardner’s hostile work environment claims.  The court reasoned that the resident’s “harassing comments and attempts to grope and hit are [not] beyond what a person in Gardner’s position should expect of patients in a nursing home.”  However, the Court of Appeals reversed the grant of summary judgment, concluding that “the evidence of persistent and often physical harassment…is enough to allow a jury to decide whether a reasonable caregiver on the receiving end…would have viewed it as sufficiently severe or pervasive, even considering the medical condition of the harasser.”  The facts significant to the court of appeals seemed to be the frequency of the resident’s conduct (daily), its severity (physical sexual assault and violent outbursts), and its impact on Gardner’s employment (she was on medical leave for three months because of the injuries she sustained in the altercation).  It probably didn’t help that a supervisor was dismissive of Gardner’s concerns.

While the facts in Gardner may show extreme and unusual patient behavior, it nonetheless establishes a troubling precedent for long term care facilities where dementia patients live.   Unlike an employee who can be abruptly terminated, residents in care facilities, particularly those receiving Medicaid benefits, have rights that prevent them from being immediately discharged.   Sometimes such residents have the right to hearing before an administrative law judge, who may or may not agree the patient can be evicted, or who may delay the eviction.  In the meantime, these residents must be cared for.  Depending upon the size of the facility and the number of care giving employees, simply reassigning an employee away from the difficult resident on a permanent basis could be quite difficult.    Long term care facilities will have to be more attentive than ever to balancing the rights of caregiving employees to be free from harassing conduct while also providing adequate care for difficult residents whose bad behavior is often the result of their medical condition.

For an industry that already faces a challenging regulatory and legal environment, the prospect of more sexual harassment jury trials arising out of the behavior of dementia patients is not a welcome development.