About a year-and-a-half into Sara Jaszczyszyn's employment with Advantage Health Physician Network ("Advantage"), she began taking intermittent FMLA leave for back pain that which she stated left her "completely incapacitated."
About five weeks into her leave, several of her coworkers saw pictures of her on Facebook consuming adult beverages at a local Polish beer festival. (Although she doesn't appear to be "completely incapacitated," she does appear to be having a good ol time, doesn't she?)
Yadda, yadda, yadda, Advantage fires Ms. Jaszczyszyn and she claims FMLA retaliation.
Who wins? That's easy. Remember folks. An honest belief is all it takes to fire a suspected FMLA abuser. That is, so long as the employer truly believes in its reason for terminating an employee on FMLA -- and that reason is not FMLA-motivated -- , the employer wins even if its reason is ultimately found to be mistaken, foolish, trivial, or baseless.
As the Court explained (in this opinion), Advantage wins:
Advantage "rightfully considered workplace [FMLA] fraud to be a serious issue," and its termination of Jaszczyszyn because of her alleged dishonesty constituted a non-retaliatory basis for her discharge. While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage's justification as pretextual, Advantage's investigation was adequate and turned in large part on Jaszczyszyn's own behavior at the termination interview, which she does not address at all. She did not refute Advantage's honest belief that her behavior in the photos was inconsistent with her claims of total disability. Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.
A word of caution to employers: Don't use the "honest belief" rule as a reason not to investigate suspected FMLA fraud. Advantage did the right thing. After it learned about the Facebook photos, it investigated by, among other things, allowing Jaszczyszyn to explain the discrepancy between her claims and the photos. But Jaszczyszyn repeatedly failed to respond at all, let alone offer such a justification. So Advantage fired her.
(h/t Chad Hatmaker)
"Uh, yeah, Eric. I just learned that we've got facilities managers who have been working overtime 'off the clock' and...."
"Off the clock, you said?"
"Yeah, and instead of paying time-and-a-half---"
"We've been giving them banana boxes."
"Did you say, banana boxes?"
[Chuckles. Calls in five colleagues. Puts phone on speaker]
"Say that again. Sloooooooowly."
"Yeah, we've been giving banana boxes of food to employees who work off-the-clock overtime. Is that, uh, ok?"
"You're f***ing with us, uh, me, right?
"I'm going to email you this case I read yesterday from the Northern District of Mississippi. Wouldn't you believe that these two facilities managers were working 'off the clock' OT and getting paid with banana boxes of food. Yadda yadda yadda. You're screwed."
Folks, don't monkey around -- couldn't resist again, could I -- with OT. Non-exempt hourly employees work over 40 hours in a workweek; it's generally best to pay them time-and-a-half...in money.
Notwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco's social media policy, you'd think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.
Well, not so much.
Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It's worth a read. Click through...
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Monty Brewster may be telling your co-workers to vote "None of the Above", but, chances are, you have no clue who they are voting for tomorrow in the Presidential election.
According to this CareerBuilder.com survey released today, although four out of five employees intend to vote on Tuesday, only one-third share their political affiliation at work. That number drops to one in five Gen-Y employees.
Nearly three in ten employees said they feel like they need to keep their affiliation secret around the office. Indeed, for every 100 employees, only 2 will display U.S. Presidential campaign items or decorations on display in their office. I refuse to hang out with either of them.
Who will I be voting for tomorrow? I'm going to vote early and often for
William Wengert is HIV-positive. He worked as a certified nursing assistant for Phoebe Ministries, until he was terminated last year following an incident in which a resident suffered a broken leg. The company claimed that the incident with the resident precipitated the firing. Conversely, Wengert alleged that the company violated the Americans with Disabilities Act by terminating him because of his HIV-positive status.
Now, let's pause there for a second. I think we can all agree that just because a disabled employee -- unquestionably, being HIV-positive is an ADA-disability -- is fired, does not mean that the employer has violated the ADA. There could be many legitimate business reasons that could trigger an adverse employment actions (e.g., $$$, performance, discipline, etc.).
Legitimate business reasons aside, the Wengert Court (opinion here) highlighted that "disabilities are often unknown to the employer." Therefore, "the requirement that plaintiff show he is disabled implies a requirement that the plaintiff show employer knew of employee's disability." In Wengert, the plaintiff could not demonstrate that anyone involved in his firing knew that he was HIV-positive. Therefore, Wengert's disability could not have motivated his termination. Thus, no disability discrimination.
Knowledge is power, except when it's not.
And if you don't know, now you know...
Just Google it.
The National Labor Relations Board has been drawing a lot of attention for its heightened scrutiny of at-will employment disclaimers. For example, in a case involving the American Red Cross, a Board ALJ found that the American Red Cross broke the law by having an employee handbook policy that stated, in part, "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way."
But new guidance from the NLRB's Acting General Counsel confirms what I've been saying: Don't even think about scrapping those employee handbook at-will employment disclaimers. (Maybe a small tweak may do the trick).
More after the jump...
Alright folks. Kindly remove your lawyer and HR hats for a moment and don the judicial robe and gavel.
Your Honor, what you must decide, based on the facts that I will lay out below for you after the jump, is whether the release that the Plaintiff-employee signed is enforceable, such that she is precluded from pursuing discrimination claims against her former employer, the Defendant.
Click through if you're up to the task...
Hurricane Sandy: Day 2
To my east-coasters, I hope this post finds you safe and dry.
Me? Hey, thanks for asking. Our Philly home kept power throughout and we otherwise made it through unscathed. Still, Philadelphia remains in a state of emergency. The City is essentially shut down. Most of the major surrounding highways have been off-limits. And, for a second day in a row, for the safety of the drivers and the riders, there is no public transportation in the City.
That means that local businesses too opted to close on Monday, and remain closed on Tuesday. Well, most of them.
To the chagrin of some employees affected by the Hurricane, they had to work. And they have vented on Twitter.
(Insert obligatory Hurricane #Sandy and/or "do I have to go to school or work today" status here).-- Chris Schurz (@ChrisSchurz) October 29, 2012
After the jump, what your employees tweeted about working (or, maybe, not so much) during Hurricane Sandy...
[Don't shoot the messenger]
I'm punching out this post on Sunday night, from my home in Philadelphia, before the brunt of Hurricane Sandy strikes. Like many of you, I'm locked, stocked, and ready to go, hoping that the impact is far less than is forecasted and the recovery is easy.
Inevitably, however, for you good folks -- especially if you have closed shop on Monday, employment issues are sure to arise. To help you out with some of them, read on past the jump...
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I'd better remember to post this now before I get bitten and turn into a zombie and munch on your face..
[Note to self: Less of "The Walking Dead," more sleep].
On November 19, 2012, this new law will take effect in NJ, which will require employers of 50 or more employees (zombies not included) to notify their workforce about "the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the 'Law Against Discrimination."
In addition to hanging a poster in a conspicuous location, employers must notify their employees in one of three ways:
- Via email;
- In print (e.g., paycheck insert, handout); or
- Through an internet or intranet website
The notification must contain an acknowledgement that the worker received the notification and has read and understood its terms. And, if a language, other than English, is the primary language spoken in your workplace, then the poster and notifications must be in that language.
Want a copy of the poster/handout? Me too. I suspect that you'll eventually find copies here. Fear not, the posting and distribution requirements contained in the law are not triggered until the Commissioner of Labor and Workforce Development issues the form of notification.
An employee is eligible for leave under the Family and Medical Leave Act if the employee has "a serious health condition that makes the employee unable to perform the functions of the position of such employee." An employee has a serious health condition if there is "an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider."
Treatments for cosmetic procedures are not serious health conditions unless complications develop from the procedure or inpatient hospital care is required. So, an employee who takes leave for a tummy-tuck procedure is not covered under the FMLA.
The answer to today's question is fiction.
For more on this, check out Dorsey v. Bellanger.
An employee getting fired for caustic social-media posts is so 2011. Having an application for unemployment-compensation benefits denied because of Twitter stupidity -- that's the new black.
Details of a recent Commonwealth of Pennsylvania decision -- don't tread on me, Idaho -- after the jump...