Workers May Choose Vacation or FMLA Leave 2014-02-28T08:14:31-07:00

Posted on February 28, 2014

In 2007, Maria Escriba requested and received two weeks of vacation from her employer to travel to Guatemala to care for her ailing father. When Escriba did not return to work at the end of her leave, the employer discharged her. Escriba sued, alleging that her employer unlawfully interfered with her right to take FMLA leave because her reason for taking a vacation – to care for her father – automatically entitled her to the FMLA’s protection. The employer argued that although Escriba provided an FMLA-qualifying reason for her vacation request, she specifically declined to have her vacation count as FMLA leave. Consequently, she could not assert a claim under the FMLA.

The Ninth Circuit Court of Appeals recently disagreed with Escriba. Escriba v. Foster Poultry Farms, Inc., No. 09-CV-01878 (9th Cir. Feb. 25, 2014). It held that Escriba could decline FMLA leave and rely only on her vacation leave when taking time off to care for her father, thus preserving all twelve weeks of her FMLA leave for future use.

Many employers require available paid leave to be used at the outset of any unpaid FMLA leave, with the paid leave running concurrently with the unpaid FMLA leave. For example, an employer might require an employee who takes twelve weeks of unpaid FMLA leave to use three weeks of available vacation leave at the outset the time off, resulting in three weeks of paid leave and nine weeks of unpaid leave. Does the Ninth Circuit’s decision mean that an employee can refuse to take paid leave and FMLA leave concurrently, even when an employer requires it? Probably not, but expect to see this argument crop up in future cases.

Grievance Process Killed Retaliation Claim 2014-02-25T08:11:14-07:00

Posted on February 25, 2014

A recent decision on a Workers Compensation retaliation claim shows a hidden value for employer-union grievance processes. In Macon v. UPS, No. 12-3080 (10^th Cir. February 19, 2014), the plaintiff claimed that when he returned from a Workers’ Comp. leave, his supervisors began to scrutinize his work, wrote him up repeatedly, and repeatedly attempted to fire him. The employer’s grievance process thwarted at least two termination attempts. Employees could protest any discipline and a local panel of employer and union representatives would review the decision. Appeals from the local panel went to a regional panel of employer and union representatives. Twice, after the plaintiff’s Workers’ Comp. leave, panels reduced termination decisions to suspensions. The third time, however, the supervisor recommended termination for an infraction of policy having to do with recording the number of stops the plaintiff had made on a delivery route. A grievance panel had previously warned the employee directly about the correct way to record this information, and when he made the same error again, a panel approved his termination. Although the plaintiff claimed the supervisor had a discriminatory animus against him, and acted on that animus, he had no evidence that the members of the panel held the Workers’ comp. leave against him or that the panel merely rubber stamped the supervisor’s decision. The court determined the grievance panel actually made the termination decision and threw the claim out on summary judgment.

Passing the buck can be an effective defense to discrimination and retaliation suits, when the decision-maker truly is independent.

It’s Never Too Late… To Take Corrective Action On A Discrimination Claim 2014-02-19T08:10:17-07:00

Posted on February 19, 2014

…To Take Corrective Action On A Discrimination Claim

By Ted Olsen

Have you ever thought to yourself when knee-deep in messy litigation, “Wow! If I could only roll back time and do things differently!”? Well, sometimes you can. A recent case illustrates this. In Reeves v. Tennessee Farmers Mut. Ins. Co., No. 13-5824 (6th Cir. Feb. 4, 2014), a Claims Assistant was denied a promotion to a vacant position, and was told by the regional claims manager that he would not select a woman for the job because of unspecified “safety” concerns. The manager then selected a male applicant who was working as a golf pro. Ms. Reeves immediately reported the manager’s statements to the Vice President of Claims. The Company immediately rescinded the offer of employment to the golf pro and reopened the selection process, this time with a new decision-maker. Ms. Reeves again applied, but was not selected. In the second selection process, a woman who had more relevant experience than Ms. Reeves, was promoted. When a sex discrimination suit was brought, the district court in Tennessee and the Sixth Circuit Court of Appeals ruled that Ms. Reeves lacked a valid sex discrimination claim because the second selection process completely nullified the first one and was non-discriminatory (as exemplified by the selection of another woman).

This employer completely absolved itself of liability by catching and immediately correcting a serious mistake. Even had the courts allowed the case to go forward, the employer would have benefitted from its corrections by seriously limiting Ms. Reeves damages via the correction process. In other words, employers who own and correct their mistakes tend to fare better than those who ignore them until litigation ensues.

The NLRB Reissues “Ambush” Election Rules 2014-02-07T20:13:41-07:00

Posted on February 7, 2014

By Patrick Scully

On February 5, 2014, the National Labor Relations Board (“NLRB”), acting this time with a full quorum, reissued its highly controversial 2011 changes to representation election rules. The proposed changes are the same as those the NLRB presented in 2011. The rule changes would:

radically speed the pace of representation elections,
eliminate almost all pre-election challenges to voter eligibility, and
effectively eliminate the ability of employers to communicate with employees prior to voting.

The proposed rules will be subject to a 60 day comment period, followed by a public hearing in April. The NLRB majority did not revisit the now stale, purported factual findings that led to the original proposed rule changes. These factual findings were extensively questioned in the prior comment period. Much of the purported employer “misconduct” cited was based not on the NLRB’s own case handling statistics, but on the reports of union organizers.

The NLRB claims that the new rules will stream-line the election process. On the contrary, these radical and unnecessary alterations to a process that has stood for over 75 years will likely result in extensive and costly litigation.

To arbitrate arbitrability or not to arbitrate arbitrability? That is the question! 2014-02-06T23:08:14-07:00

Posted on February 6, 2014

By Lori Phillips

Whether the parties to a collective bargaining agreement (“CBA”) agreed to arbitrate arbitrability (i.e. whether an issue is subject to arbitration at all) was the key issue ConocoPhillips, Inc. v. Local 13-0555 United Steelworkers In’tl Union, No. 12-31225 (5th Cir. Jan. 30, 2014). After an employee tested positive for drugs, the employer terminated him pursuant to its zero tolerance drug policy. The union filed a grievance, alleging wrongful discharge. The CBA specifically excluded from arbitration an employee’s discharge for a positive drug test, but it allowed related issues to go forward. Despite the CBA language, the arbitrator decided he had the authority to decide arbitrability and that wrongful discharge for a positive drug test was subject to arbitration. Ultimately, he ruled against the employer. The employer appealed to federal court, seeking to vacate the arbitral award. The court held that the union failed to meet its burden by clear and convincing evidence that the parties agreed to have an arbitrator, and not a court, decide the threshold question of arbitrability.

The presumption is that parties have not agreed to submit arbitrability to an arbitrator, and an agreement’s silence or ambiguity on the issue is not enough to rebut the presumption. The takeaway is that employers can carve out issues they do not want to submit to arbitration, including whether a court or an arbitrator gets to decide which issues are subject to arbitration. As a best practice, an arbitration agreement should expressly state the terms of the parties’ agreement on the threshold issue of arbitrability.

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