In July, the Eleventh Circuit Court of Appeals, which covers Florida, ruled invalid the Family and Medical Leave Act ("FMLA") Regu-lation which provides that if an employer fails to specifically and prospectively inform an employee that the employee is using FMLA leave, then the employee's leave is not counted as FMLA leave. In McGregor v. Autozone, Inc., the court held that this Regulation extends the FMLA beyond what Congress intended when the law was passed and therefore it is invalid.
Specifically, the FMLA provides for 12 weeks of leave. The U.S. Department of Labor issued Regulations which require the employer to notify the employee that an absence is being counted as FMLA leave. If the employer fails to do so, the Regulations provide that the leave does not count against the employee's 12 week entitlement and the employer is required to give 12 weeks of FMLA leave in addition to any leave already taken but not designated as FMLA leave.
In the McGregor case, the employee took 15 weeks of leave following the birth of her child. The employee claimed she was entitled to 13 weeks of employer-provided paid disability leave and then 12 weeks of unpaid FMLA leave because her employer failed to notify her that the two leaves would run at the same time as required by the Regulations. In ruling these Regulations invalid, the court noted that Congress intended for employees to receive 12 weeks of leave and the Regulations extended that entitlement without authority. The employee, therefore, was not entitled to additional leave time. Based on this new case, under the FMLA, a Florida employer is still required to give notice that the leave is counted as FMLA leave, but a failure to do so is a technical violation and will not result in the employee receiving additional leave time.
In a related development, a different court recently held that an employer's required FMLA notice to an employee need not include specific details about reinstatement. In Sarno v. Douglas Elliman-Gibbons & Ives, Inc., an employee injured his back and went out on FMLA leave. He was out for the total 12 weeks. At the end of the 12 weeks, his employer spoke with him about whether he was able to return; the employee said he was not. The employer then terminated his employment.
The court held that this did not violate the FMLA because once the 12 weeks expired and the employee was not able to perform the essential functions of his job, his protection under the FMLA ceased, and thus the employer was not required to maintain his employment. The employee argued that under the FMLA, the employer was required to inform the employee that after the 12 weeks expired, the employer's obligations ended if the employee could not return to work. The court rejected this argument, noting that the FMLA notice requirements do not contain any such language and only require the posting of summary notices, and that the Regulations detailing the notice requirements are ambiguous. In reaching its decision, the court relied strongly on the fact that even if a duty existed under the FMLA to provide the notice, the employee could not prove that the employer's omission harmed him in any way because the employee was not able to return to work.
Even though this case indicates that the employer need not notify the employee of the consequences for failure to return at the end of a leave period, this case is not definitive and is not controlling in Florida. The best course of action is still to provide employees with complete notice as to the length of leave and the consequences for failing to return at the end of the leave period.
LEGISLATION PROTECTS EMPLOYERS
FROM NEGLIGENT HIRING
Beginning in October of this year, employers will have extra protection against negligent hiring claims -- as long as they take one of the precautionary steps outlined in the new law. This year, the Florida Legislature passed a tort reform bill that contains a provision giving employers a defense against negligent hiring lawsuits. An employer must take one of the following steps, however, prior to its hiring decision to receive the benefit of the new law:
(1) Conduct a criminal background check through the Florida Department of Law Enforcement;
(2) Make a "reasonable effort" to contact references and former employers;
(3) Use an employment application that asks for specific information about criminal con-victions, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for an intentional tort, including the nature of the intentional tort and the disposition of the action;
(4) Perform a motor vehicle check (if the applicant's driving record is relevant to the job applied for); or
(5) Interview the applicant. Employers should ask questions that may reveal an applicant's violent tendencies, e.g., questions about criminal convictions or acts of violence.
Employers are required to perform only one of the five checks to obtain the law's benefit; however, the more comprehensive the employer's investigation, the stronger the employer's defense and the safer the employer's workplace.
?QUARTERLY QUESTION?
CAN AN EMPLOYER'S ACTIONS WHICH ARE UNRELATED TO
AN EMPLOYEE'S JOB BE CONSIDERED RETALIATION?
Yes. The scope of possible actions constituting retaliation against employees continues to grow broader. Retaliation is defined as an adverse action taken by an employer against an employee because the employee has engaged in protected activity. In the past, this has been expanded to include actions against ex-employers who gave bad refer-ences or stated false or defamatory information about an ex-employee who had made a complaint of discrimination against the former employer.
Recently, a federal court interpreted the retaliation provisions of Title VII to include even employer actions that are not directly related to employment. In Aviles v. Cornell Forge Company, decided in July, 1999, the Seventh Circuit Court of Appeals held that an employer could be sued for retaliation when the employer told police that an employee (who had earlier filed an EEOC charge) was waiting outside the employee's location with a gun. The lower court had ruled in favor of the employer because the actions of the police against the employee had no adverse effect on the employee's conditions of employment. The Circuit Court, however, found that a lack of an adverse employment action against the employee did not eliminate the claim for retaliation and that filing a false police report, even if it had no impact on employment conditions, could be considered to be a retaliatory action meant to discourage employees from pursuing discrimination claims.
Employers must always carefully consider any action, whether work-related or not, that can have an adverse effect upon an employee or ex-employee who has filed a charge of discrimination or harassment, has participated in an investigation of allegedly unlawful employment acts, or has opposed an allegedly unlawful employment practice. Counsel should be consulted before any such action is taken, not after. Because retaliation charges are the hardest for an employer to defend, an abund-ance of caution should be exercised in those situations.