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An alcoholic employee is not entitled to Family and Medical Leave Act (FMLA) leave for absences related to his illness before starting treatment.
The FMLA does not protect absences caused by substance abuse unless the employee in question is actually in treatment, the Seventh Circuit held. This meant that an employee who missed several days of work because of his alcoholism and who was not in treatment at the time was properly fired under his employer’s attendance policy.
After the employee had a relapse of his alcoholism, he missed three days of work, during which time he tried calling a treatment program to see if it had any availability. On the fourth day, he finally began treatment. Upon his return to work, the employee attempted to claim that his entire absence was covered by the FMLA; he provided a doctor’s note stating that he had a serious health condition during that time. Upon investigation, the employer discovered that the employee did not begin treatment until four days into his absence. It fired him for exceeding the company’s absentee policy; the employee sued, arguing that his employer interfered with his right to take FMLA leave.
The court agreed with the employer that substance abuse is considered a serious health condition under FMLA regulations only during the time the employee is in treatment with a qualified healthcare provider. Absences caused by use of the substance itself are not protected. The court specifically rejected the employee’s argument that his treatment began on the first day of his absence as stated on the form his doctor submitted. Although the doctor’s form may have been correct for any other type of serious health condition, those related to substance abuse require time in treatment for FMLA protections to begin.
This case describes the special circumstances that arise when an employee seeks leave because of substance abuse. Just as the Americans with Disabilities Act does not protect employees currently using drugs or alcohol, the FMLA provides leave protection only for workers who are in treatment.
-- Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Darst v. Interstate Brands Corp., -- F.3d --, 2008 WL 108764 (7th Cir., January 11, 2008)].
An arbitration agreement that was “hidden” on the back of an employment application could not be enforced because it was both procedurally and substantively unconscionable.
A terminated vice president of a loan-services company could not be forced to arbitrate her wrongful termination claim, because the arbitration agreement she had signed was both procedurally and substantively unfair, a California state court recently ruled.
The worker had already interviewed for the position, been offered the job and accepted the employer’s terms when it first sent her a “standard” employment application to be completed. The company told her that the application was needed for “HR purposes” and had to be signed right away. The employee noticed the arbitration paragraph on the back of the application, but later argued that she should not be compelled to arbitrate her wrongful termination claim.
The court agreed. It explained that in California, an agreement to arbitrate must be both procedurally and substantively unfair for it to be unenforceable. Procedural unfairness concerns the way in which a provision is presented to the employee and whether there is equal bargaining power between the parties. The court found that the agreement was procedurally deficient, because it had been presented to the employee only after she had been hired and after all other terms and conditions of employment had been decided. The agreement was practically hidden in small print on the back of a lengthy employment application and there was no meaningful opportunity for the worker to negotiate its terms; she either had to sign or give up her new job.
The actual terms of the agreement were substantively unfair, because they were one-sided in favor of the employer. Although the employee was required to arbitrate any disputes she might have about her employment, compensation or other matters, nothing in the agreement bound the employer to arbitrate its disputes against the employee. Because the agreement was so procedurally unfair, the substantive unfairness did not need to be as strong. In this case, the fact that it was one-sided was enough to satisfy the court that the agreement should not be enforced.
This case provides a simple and clear explanation of the rules for finding an arbitration agreement to be unfair, or unconscionable.
-- Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Pronovost v. Aurora Loan Servs., 2008 WL 142583, (Cal. Ct. App., January 16, 2008) unpublished opinion)].
An employer was liable to pay a jury award of more than $500,000 to an African American employee who endured severe racial epithets by a supervisor and others and who was fired in retaliation for trying to pursue a discrimination charge.
Calling the defendant’s actions “exceedingly reprehensible,” a federal court upheld a jury award that included $500,000 in punitive damages against a Birmingham elevator manufacturer that ignored the fact that its managers and supervisors routinely made serious racial slurs and epithets about African American employees.
The plaintiff in this case filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that he and other employees were subjected to a hostile work environment that included being called “nigger,” “monkey” and “slave” and were being subjected to threats of violence by supervisors and managers. Several months later, the company asked all employees to sign arbitration agreements that would cover past, present and future employment claims. The plaintiff refused to sign the agreement to the extent that it would cover his previously filed charge, and he was fired.
The court first noted that the evidence presented at trial regarding the hostile work environment was substantial, and demonstrated that despite progress toward racial equality in Birmingham, prejudice and discrimination still existed. It then explained that, normally, the right to refuse to sign an arbitration agreement was not protected activity. In this case, however, the plaintiff’s refusal to sign was closely tied to his desire to protect the right to sue on his earlier EEOC charge. Therefore, when his employer fired him for refusing to sign, there was a strong inference that it was retaliating against him for exercising his right to complain about the racial harassment.
Finally, the court noted that the company was not protected from a large punitive damage award by the fact that its employee handbook contained a nondiscrimination provision. Several upper-level managers testified that they were not familiar with the terms of the policy and that they would not know what to do if faced with a complaint about racial harassment at work. Given the severity and pervasiveness of the harassment and the company’s completely absent response, the large punitive damages award against the company was proper, even though it amounted to nearly 10 times the compensatory damages award.
This case demonstrates that retaliation by an employer can take many forms and that the mere existence of an antiharassment or antidiscrimination policy in a handbook will not protect an employer if the policy is never followed.
-- Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Goldsmith v. Bagby Elevator Co. Inc., -- F.3d --, 2008 WL 150585 (11th Cir., January 17, 2008)].
Congress amends the FMLA to provide additional leave for family members of military personnel.
In 2007, Congress considered several bills to amend the FMLA. Although most remain pending, one bill, which was contained in the much larger National Defense Authorization Act for FY 2008, was signed into law by President Bush in January 2008. The bill amends the FMLA to provide two new types of leave that affect service members and their families.
The new leave provision has two parts. First, the “Servicemember Family Leave” provision gives an employee who is the spouse, child, parent or “next of kin” of a “covered servicemember” 26 weeks of leave during a single year. A covered service member is defined as someone who is “undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”
The second part of the provision provides up to 12 weeks of leave in a 12-month period due to any “qualifying exigency” arising from the active duty status of an employee’s family member or from the family member being notified of an impending call or order to active duty.
Although the precise meaning of a “qualifying exigency” has not been addressed in the law, the Department of Labor has indicated that it will soon issue regulations to flesh out the amendment. In fact, in an announcement that appeared on the Labor Department’s Web site shortly after the law went into effect, the department stated that this provision would not go into effect until final regulations defining “qualifying exigency” have been issued.
Under the new law, the maximum amount of leave in a 12-month period for employees who take any portion of their leave to care for an injured service member is 26 weeks. Thus, only those employees taking leave to care for an injured service member are entitled to an additional 14 weeks of leave during a 12-month period. The original entitlement of 12 workweeks of leave in a 12-month period still applies to the original bases (e.g., birth or placement of a child, employee’s or covered family member’s serious health condition) for taking protected leave under the FMLA, in addition to leave taken due to a family member’s active duty status (“qualifying exigency” scenario).
The new leave provisions also may be taken intermittently or on a reduced leave schedule, and substituting paid leave rules now in effect for other types of FMLA leave will also apply here. Similarly, spouses employed by the same employer may take an aggregate of 26 workweeks of leave for service-member family leave or a combination of leave.
-- Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Daily Labor Report #19, January 30, 2008].