TIP OF THE DAY – WEED OUT OLD POLICIES

The start of a new year is an excellent time to pull your employee handbook off the shelf and make sure the policies are up to date legally, and that they accurately reflect your practices in the workplace.

Potential problems include:

• Policies that violate state or federal law (like a rule against bringing firearms on company property that runs afoul of Florida’s 2008 Right to Keep and Bear Arms in Motor Vehicles Act, a smoking policy that violates the Florida Clean Indoor Air Act, or a rule that violates the Fair Labor Standards Act by declaring that employees don’t receive overtime pay unless the extra work hours were approved in advance);
• Policies that are rarely enforced (lack of uniformity in enforcement can lead to claims that you discriminated or retaliated against a particular employee by selectively enforcing a rule);
• Policies that are outdated (does your handbook include a dress code that looks like it was written in 1980?);
• Policies that are ambiguous (leading to misunderstandings, morale issues, and disgruntled former employees who are more likely to file a legal action against the company); and
• Policies that are simply missing (often-overlooked policies include legal rights of reservists and employees returning from active duty in the military, job protection during jury duty, and mandatory reporting procedures to be followed if an employee witnesses the sexual harassment of another employee or observes an illegal practice).

Make sure all employees have signed an acknowledgment that they have read, understand, and agree to follow the rules in your employee handbook. And make sure any third parties dealing with employee issues have been given instructions that are consistent with the policies in your handbook (for example, if you use an outside payroll company, make sure they know if any portion of PTO should be carried over from last year, or if all balances are cleared effective January 1).

Don’t wait until a problem arises. Take time now to review your employee handbook. It’s your best defense against misunderstandings and claims of unfair treatment that often lead to costly litigation.

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EMPLOYER ALERT – SOME FMLA RIGHTS ACCRUE PRIOR TO ELIGIBILITY FOR LEAVE

Can an employee who has worked for a company less than one year sue the company for violating the Family and Medical Leave Act (“FMLA”)? The answer, according to January 10, 2012 decision of the federal Eleventh Circuit Court of Appeals, is yes.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, had been employed by Brookdale for eight months when she told her employer that she was pregnant and would be requesting FMLA leave upon the birth of her child. By the time of her expected delivery date, she would have been employed by the company for 13 months, thereby satisfying the one-year of employment requirement for leave eligibility under the FMLA.

After 11 months of employment, however, she was terminated, allegedly to prevent her from becoming eligible for leave. She sued in federal district court in Miami, claiming that her employer violated the FMLA by interfering with her right to leave and by retaliating against her for requesting FMLA leave. The district court dismissed the case, stating that she had no right to bring a suit under the FMLA because at the time the events occurred, she was not an eligible employee under the FMLA since: (1) she had not worked for the company for more than one year; and (2) the triggering event that would entitle her to leave – the birth of her child – had not yet occurred.

On appeal, the Eleventh Circuit reversed that decision and remanded the case to the trial court for further proceedings. Recognizing that Pereda had a right to file a lawsuit under the FMLA even though she was not yet eligible to take leave on the date she was fired, the court stated as follows: “We are simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

In the underlying case, the plaintiff claimed that prior to advising her employer that she was pregnant and would be requesting FMLA leave, Pereda was considered “a top employee.” Afterward, according to the allegations in the lawsuit, her employer began harassing her “and denigrating her job performance and placed her on a performance improvement plan with unattainable goals.” She was then written up for excessive absenteeism (absences for medical appointments that she claimed had been authorized by her supervisor), and was fired during her 11^th month of employment. Based upon the Eleventh Circuit’s ruling, this case will now proceed to trial, and a jury will determine whether or not the employer in fact did interfere with Pereda’s FMLA rights, and fired her in retaliation for her intention to take leave.

The best approach for employers is to review carefully any sudden change in performance evaluations for an employee who has provided notice of intent to take leave under the FMLA, regardless of whether the employee is eligible for FMLA at the time the request is made. If there has been a decline in performance, make sure it is objectively documented, and be certain that the supervisor is not biased by the fact that an employee who has been with the company less than one year is planning to take up to 12 weeks leave as soon as they become FMLA-eligible.

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IN THE NEWS - CHURCH SCHOOL’S RIGHT TO FIRE “CALLED” TEACHER UPHELD OVER CLAIMS OF DISCRIMINATION UNDER ADA

In a January 11, 2012 ruling, the U.S. Supreme Court held that under the “ministerial exception” to employment discrimination laws, grounded in the First Amendment, a “called” teacher fired by a Lutheran school could not challenge her termination as a violation of the American With Disabilities Act (“the ADA”).

The Plaintiff, Cheryl Perich, was employed as a teacher at a school run by Hosanna-Tabor Evangelical Lutheran Church and School, a member of the Lutheran Church Missouri Synod. Under the Synod’s rules, there are two types of teachers: “called” teachers and “lay” teachers. Although both types of teachers perform basically the same duties, called teachers must complete a course of theoretical study at a Lutheran college, pass an oral examination by a faculty committee, and be accepted by the church’s congregation as a called teacher. The teacher then receives the formal title “Minister of Religion, Commissioned.” Lay teachers are only hired by schools in the Synod when called teachers are not available.

Perich became a called teacher, and was employed by Hosanna-Tabor for a number of years. She then was diagnosed with narcolepsy, and took a medical leave of absence. When her physician cleared her to return to work, however, her employer advised her that a lay teacher had already been hired to finish out the year, and that she could not return at this time. The congregation of the church voted to offer her a “peaceful release” from her call, which included paying a portion of her health insurance premiums in return for her resignation. Perich refused to resign. She hired an attorney and demanded that she be reinstated in her position. Hosanna-Tabor responded by telling her she would likely be fired if she wouldn’t resign. She said she intended to “assert her legal rights,” and was terminated immediately thereafter.

The EEOC filed a lawsuit on behalf of Perich claiming that she had been wrongly terminated in violation of the ADA based on her disability, and in retaliation for exercising her rights under the ADA. Hosanna-Tabor argued that under the First Amendment the courts could not interfere with the employment relationship between a religious institution and one of its ministers.

The First Amendment provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” According to Hosanna-Tabor, Perich had been fired for a religious reason – namely, her threat to sue the church, which was inconsistent with the Synod’s belief that disputes between Christians should be resolved internally.

In its ruling, the Supreme Court did not focus on whether the decision to terminate Perich was based on the purported violation of the Synod’s alleged religious tenet of resolving disputes internally, or whether she was terminated due to her disability. Rather, the Court held that analysis irrelevant, because “[r]equring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By employing an unwanted minister, the state infringes the Free Exercise Clause [of the First Amendment], which protects a religious group’s right to shape it’s own faith and mission through it’s appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause [of the First Amendment], which prohibits government involvement in such ecclesiastical decisions.”

The Supreme Court concluded: “The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministe­rial exception bars such a suit.” In reaching it’s decision, the Court rejected arguments that term “minister” should be more narrowly defined to include only the head of a religious organization.

The interesting thing about this case is that it did not involve a direct conflict between discrimination law and church doctrine. It was not, for example, a challenge to the right of the Catholic church or an Orthodox Jewish seminary to ordain only men as priests and rabbis, respectively. Nor did it involve the right of a religious school to hire only individuals of the same faith. Rather, the factual circumstances in this case centered on whether a disabled employee could be refused reinstatement and ultimately fired under circumstances which, in the secular world, would constitute a violation of the ADA.

Indeed, the EEOC argued in this case that such a decision would open to door to widespread employment discrimination, including possible violations of everything from Whistleblower statutes protecting those who expose illegal activity, to child labor laws.

The Court dismissed those arguments as unduly alarmist, noting “[w]e express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tor­tious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

TIP OF THE DAY – RECENT COLLEGE GRADS ATTRACTED TO SOCIAL MEDIA AND OTHER WORKPLACE BENEFITS

A recent survey of college students and recent college graduates conducted by Cisco, concluded that young professionals are looking beyond salary when they enter the workforce. See Cisco news release at: http://www.cisco.com/en/US/solutions/ns341/ns525/ns537/ns705/ns1120/cisco_connected_world_technology_report_chapter2_press_release.pdf

This is good news for companies that are not in a position to offer top salaries to recruit new talent. According to the Cisco study, other factors that heavily influence whether young professionals accept a position with a company – and choose to remain there – include:

• The ability to use social media in the workplace
• Flexibility in choosing mobile devices (iPhone, Blackberry, etc.) to use for work
• Opportunity to work remotely some of the time, accessing work computers from their mobile device or home computer
• Ability to blend business use and personal use of company-issued devices like smartphones, iPad, etc.

Make sure, however, that use of increased flexibility in these areas to recruit and retain employees is still tempered by reasonable policies governing the use of social media and mobile devices.

EMPLOYER ALERT – “CAT’S PAW” THEORY OF DISCRIMINTION CAN TAINT IMPARTIAL FIRING DECISION

The phrase ‘garbage in, garbage out’ doesn’t just apply to the computer business, where it’s long been recognized that if you input faulty data into a computer program, it will process that information and yield a predictably faulty result. Likewise, an impartial decision-maker can still subject your company to liability for violation of one of the federal employment discrimination laws if their hiring or firing decision was based on “facts” or “opinions” that were tainted by another employee’s discriminatory intent.

A March 2011 decision of the U.S. Supreme Court, Staub v. Proctor Hospital, describes this as the “cat’s paw” theory of discrimination, and in the nine months since that decision was rendered it has been relied upon by federal courts throughout the country in allowing discrimination clams to move forward even though the actual decision-maker was admittedly unbiased. In a nutshell, the “cat’s paw” theory allows a plaintiff to prove his or her case by demonstrating that the otherwise impartial decision was tainted by discriminatory animus on the part of the plaintiff’s supervisor. The name is derived from a fable in which a monkey persuades a cat to reach into the fire to retrieve chestnuts. The cat burns its paws, and the money makes off with the chestnuts, unscathed.

In Staub, a case arising under USERRA (the federal law that protects members of the armed forces from discrimination in employment based on their military service), a supervisor fabricated a disciplinary action, based on the supervisor’s animosity toward the military obligations of the employee, who was a member of the U.S. Army Reserve. The employee’s file was later reviewed by an HR manager, who made the decision to terminate the employee without researching the underlying merits of the disciplinary action. The employee, Straub, filed a grievance about the dismissal, claiming that his boss had fabricated the disciplinary action because he was angry that Straub’s military reservist obligations interfered with scheduling in the department. The HR manager, however, failed to investigate that allegation, and refused to reconsider the termination of employment. A jury found in favor of Straub, but the case was reversed on appeal due to the lack of any intentional discrimination by the HR manager who made the firing decision. Straub then appealed to the Supreme Court, and won.

The Supreme Court held that the HR manager’s lack of intent to discriminate – and lack of knowledge that the underlying disciplinary action was contrived – did not insulate the company from liability for wrongful termination in violation of USERRA.

The decision is Straub is not limited to USERRA cases. Rather, the “cat’s paw” approach it articulates has been used uniformly by federal courts in all types of employment discrimination cases.

The best approach for an employer is not to make a hasty termination decision. If you are the decision maker and you don’t have personal knowledge of the alleged misconduct by the employee, you should investigate the facts before making the decision to terminate. Make sure your disciplinary forms provide a space for employee comments on any write-up, and that there is an internal reporting procedure for employees to follow if they believe they are the victims of discrimination.

TIP OF THE DAY – THE DO’S AND DON’T’S OF PERFORMANCE REVIEWS

Effective performance reviews are an excellent tool in rewarding good performance, correcting problems, and shielding your business from potential liability. Unfortunately, if not done correctly, they can be your worst enemy in litigation with an employee who claims to have been wrongly discharged in violation of one of the federal, state or local employment discrimination laws.

Follow these tips to ensure that performance reviews are done properly:

DO conduct performance reviews on a regular basis.

DON’T wait until there is a problem with an employee before giving them their first performance review in five years.

DO include positive comments. Employees who feel they’ve been recognized and appreciated for their positive contributions to the workplace are more likely to be receptive to addressing areas that need improvement.

DON’T write a glowing review for an employee who is doing a bad job. If you later fire that employee for performance deficiencies, a performance review that said nothing but good things about their performance could be used against you if the employee claims the reason stated for termination was a “pretext” for unlawful discrimination or retaliation for protected activity.

DO counsel your employees on an ongoing basis about areas that need improvement.

DON’T make the performance review be the first time an employee has ever heard about an issue. For example, an employee who is habitually tardy should be counseled about that in between reviews. Then the performance review can point out that being on time is a continuing problem, despite previous warnings.

DO investigate any sudden radical change in an employee’s performance review prepared by their supervisor. Find out if the employee made an internal complaint or if any unusual incident occurred shortly before the performance review was conducted. Discuss the performance issues with the supervisor and the employee (separately), so you can be assured there is no claim of retaliation. Draft a memo to the file documenting the conversation.

DON’T just ignore a performance review that is completely inconsistent with all prior reviews for this employee.

DO stick to performance issues and avoid personal comments or any reference to health issues or personal problems outside the workplace when completing a review.

DON’T tie performance deficiencies to use of sick leave, FMLA, or membership in a protected class. For example, don’t criticize an employee for “being sick all the time” or “missing a deadline due to time off for surgery.” Don’t accuse an older employee of “slowing down” or use other phrases that might be construed as age bias.