Monday, November 28, 2022

Ohio Supreme Court Finds Arbitration Clause Did Not Clearly Cover Intentional Tort Claim Without Specific Reference

Last week, the Ohio Supreme Court affirmed the denial of a motion to compel arbitration of an employee’s intentional tort workplace injury claim based on the arbitration clause of a collective bargaining agreement which did not specifically mention intentional tort claims or the intentional tort statute in the list of employment statutory claims which were covered.   Sinley v. Safety Controls Technology, Inc., Slip Opinion No. 2022-Ohio-4153.  The Court concluded that “while arbitration is generally favored in most contracts, there is no presumption of arbitrability of an individual employee’s claims under an arbitration clause contained in a collective-bargaining agreement.”  It also held that “[t]o compel arbitration against a union employee, the claim at issue must have been clearly and unmistakably waived in the arbitration provisions in the collective-bargaining agreement governing the parties” and to “be clear and unmistakable, the claim must be included either by statute or specific cause of action in the arbitration provision of the collective-bargaining agreement.”  It was insufficient that the clause explicitly applied “to any alleged violation of laws or statutes by the  . . . Company, as alleged by an employee, including without limitation” a list of particular statutes when the intentional tort statute was not one of those listed.

According to the Court’s opinion, the plaintiff employee claimed to have been intentionally injured with the removal of certain safety precautions and his supervisor’s testing the equipment while he was working on it.  When he filed suit against the employer, manufacturer, safety consultant and others, the employer moved to compel arbitration based on the applicable collective bargaining agreement whose arbitration clause covered a number of individual statutory claims, including employment discrimination and workers compensation retaliation, etc.  However, the clause did not specifically mention general torts or the intentional tort statute.

The Court agreed that such claims could be arbitrable if they were covered by the relevant arbitration clause.  While it would be better to cite the specific statute, it is sufficient to describe the types of claims which are covered.

In this case, the arbitration clause explicitly provided that it would apply to all statutory claims against the employer, “including without limitation” a list of various employment-related statutes.  However, the Court’s majority rejected that this could be interpreted to include intentional tort claims:

[I]f the parties intended for the nonexhaustive list to be taken to include all statutory causes of actions generally, then the provision becomes just that, a general clause requiring arbitration of all possible violations of laws or statutes. . . . .

We do not find that an arbitration provision in a collective[1]bargaining agreement must cover every possible, conceivable federal and state law claim in order for the language to constitute a clear and unmistakable waiver. But the body of case law presented by the parties and amici curiae on both sides demonstrates that some specific reference to the claim at issue is required. And while expressly including the specific statute when a right or claim is created by one leaves no question as to whether the parties intended to waive such a claim, doing so may not always be practical or necessary. But for a waiver to be clear and unmistakable, it must identify the claim either by statute or cause of action. Having no reference whatsoever to intentional-tort claims, the CBA here cannot be used to compel Sinley to arbitrate such claims.

The dissent focused on an earlier party of the arbitration clause which further clarified that the scope was to cover all employment-related claims, except for workers’ compensation: ““any employment-related controversy or dispute arising between the parties to [the] Agreement, or between an employee and the parties to [the] Agreement as to the interpretation or application of the terms and provisions of [the] Agreement, or as to the violation of any employment-related laws or statutes (except workers’ compensation matters).”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Thursday, November 17, 2022

Sixth Circuit Reinstates FMLA Claims Where Employee Called Off for Vague "Flare-ups" and Manager Knew of FMLA Requests.

Yesterday, the Sixth Circuit reversed an employer’s summary judgment on FMLA retaliation and interference claims.  Render v. FCA US LLC, No. 21-2851 (6th Cir. 11-16-22).   The plaintiff had been tentatively approved for intermittent FMLA leave for his depression and anxiety.  However, when he called off on multiple days, he only once referred to the FMLA (when asked) and usually just said he was unwell or was having a “flare-up” (the term his physician used to describe his need for FMLA).  The Court found that this otherwise vague reference to his FMLA Medical Certification was sufficient to put the employer on notice of the need to inquire further and that he did not need to specially refer to the FMLA or to his anxiety or depression.  The Court also found sufficient evidence of retaliation in light of the temporal proximity of his protected activity of requesting FMLA leave and the termination decision. “It is the request that is protected activity,” not whether the leave is qualified or not.  The Court rejected the employer’s honest believe defense because the decisionmaker was aware that he had requested FMLA leave, was seeking to use it on the days in question, and had disputed the mis-coding of his absences as non-FMLA (i.e., that she had been provided with mistaken information which she had the authority and power to correct herself).   Finally, the Court agreed that the employee had sufficiently complied with the employer’s customary call off procedures when the information he had been provided was confusing and contradictory.

According to the Court’s opinion, the plaintiff had been terminated for poor attendance, but was reinstated following a grievance and subject to a conditional reinstatement letter that he would be fired again if he had more than two attendance infractions in the next year’s probationary period.  Within six months, he missed or was tardy at least four times and was fired.  Thing is, he applied for and was conditionally approved for four days per month of intermittent FMLA leave for his depression and anxiety.  The FMLA administrator sent him inconsistent and contradictory information about how he was to report his FMLA absences and the recordkeeping of the employer and FMLA Administrator was also inconsistent and contradictory.   Although he was given confirmation numbers when he called, he generally failed to indicate that he was using or had been approved for FMLA leave and would only refer vaguely to “flare-ups” and not being well enough to work.  The decisionmaking HR manager checked with other HR and the FMLA Administrators, but was given incorrect and/or misinterpreted the information.   Because she could not confirm that he had called in as required on all of the dates and the FMLA administrator had failed to record them as FMLA absences, the HR manager decided to terminate him even though he told her that he had attempted to use his approved FMLA leave. 

The Court’s majority found that there was sufficient evidence to prove that the employer may have interfered with his right to take FMLA leave.  While employees who have been approved for FMLA leave are required when calling off work to refer to the FMLA or to their FMLA approved condition and say more than that they are “sick,” the Court found that the employer is bound by the employee’s prior notice requesting FMLA leave and the supporting medical statement describing his medical condition.   

Either way, an employee “[c]alling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act,” though an “employer will be expected to obtain any additional required information through informal means.”

 In this case, the plaintiff had requested and been approved for intermittent FMLA leave for “flare-ups” of his chronic depression and anxiety.  So, when he called off due to “flare ups,” the employer was on notice to inquire further if it questioned whether this was covered by the FMLA:

With less context, some of [the plaintiff’s] four call-ins could be viewed as providing insufficient notice. Although [he] referenced the FMLA during his December 7, 2017 call-in, he did not do so during his call-ins on December 6, 2017 and January 5, 2018, opting instead to say that he was suffering from “flare ups.” . . . .  As the district court noted, a “flare up” just means “a sudden appearance or worsening of the symptoms of a disease or condition.” . . . .The term does not by itself indicate what these symptoms or the underlying disease or condition are. Standing alone, an employee reporting that they were having a “flare up” could be the equivalent of calling in “sick,” which 29 C.F.R. § 825.303(b) explicitly provides “will not be considered sufficient notice to trigger an employer’s obligations under the Act.” The same is true of [his] call from December 8, 2017, during which he merely reported having been “sick the last few days,” referencing his calls from December 6 and 7.

But there is more to this story. Nothing in 29 C.F.R. § 825.303(b) commands that we overlook pertinent background. . . . Given that employers are under a duty to inquire further about the nature of the leave requested, a previously submitted medical certification listing symptoms is relevant to evaluating what can be reasonably gleaned from an employee’s call-in. See 29 C.F.R. §§ 825.301(a), 825.303(b).

Before making any of his calls, [he] provided [the employer] with such a certificate.  . . . This document informed the company that [he] would be unable to work when the symptoms of his depression and anxiety were acute. . . . . More importantly, the certificate alerted [the employer] that [he] would be unable to work when these symptoms “flare[d] up.” Id. It also noted that these flare ups could occur three-to-four times a month. Id. Therefore, when [he] called in on three consecutive days in December 2017 specifically referencing either his symptoms flaring up, or the FMLA, or, by the last day, his previous two days out and his subsequent need to be late to work, it would be reasonable to conclude that he put [the employer] on notice that he was referring to his FMLA-qualifying condition. . . . . The same is true for the January 5, 2018 call, during which [he] also identified a flare up of his symptoms as the reason for his tardiness. . . . .. At the very least, [the employer] knew that [he] had been requesting FMLA leave during the December call-ins by the day of the last leave request because he reinformed the company that he had been doing so.  . . . . On this record, we hold that a reasonable jury could conclude that [he] provided adequate notice of his need for unforeseeable FMLA leave each time that he called in.

The minority opinion also concluded that he had complied with the employer’s customary call-off policies and the majority opinion agreed: “For the reasons stated in the lead opinion, a reasonable jury could find that [the plaintiff] provided sufficient notice of his intent to take FMLA leave under [the employer’s] internal leave policies.”

In general, employers can establish call-in procedures, and they may deny FMLA leave if an employee fails to follow those instructions. . . . Accordingly, [the employer] could adopt a policy requiring employees to call both Sedgwick and the [the employer’s] call-in line to report an FMLA absence. But an employee cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy.

In this case, Sedgwick’s letter was so confusing that even Mitchell, who worked in FCA’s human resources department, could not decipher what it was asking employees to do. . . .

Understandably, [the plaintiff] did not follow these confusing instructions to a tee. He believed that he simply had to call the 1-800 number and report his absence. He “didn’t realize there was a second number.” . . . .We cannot fault him for failing to call both [the employer] and Sedgwick when (1) the list of instructions only gave one phone number (the one he called), and (2) the letter did not clearly list a phone number for Sedgwick. Moreover, Render took other steps to ensure that he properly reported his FMLA days. In the days immediately following his absences, he told two different supervisors that his absences were FMLA days, and he followed up with [the HR Manager] to ensure that his absences were properly coded.

As for his retaliation claim, the Court had no trouble finding that the plaintiff had engaged in protected activity in requesting FMLA leave and that the employer knew about his requests before terminating him.  It was irrelevant whether the absences were in fact protected by the FMLA for purposes of deciding whether he had engaged in protected activities. 

Employers are charged with knowing about FMLA protected activity as soon as an employee requests leave, even if it turns out the employee was not entitled to benefits. It is the request that is protected activity. . . . . Even if [the employer] did not know that [the plaintiff] was using his intermittent FMLA leave at the time of his absences, the issue is whether it knew about his protected activity before it terminated him. In this case, even if [the manager] was unaware that [the plaintiff] asked to use his leave on December 6, she admitted that she knew he was claiming FMLA protection by December 8, over a month before she terminated him.

The Court’s majority also found that the plaintiff could satisfy his burden of showing that his protected activity motivated his termination because of the temporal proximity between his initial FMLA request in October, his first attempt to use it in December and his termination in January.  While the employer may rely on the violation of his probation terms as its legitimate and non-discriminatory reason, the prima facia causation element was satisfied by the temporal proximity of the events. 

The Court also found that the plaintiff could show pretext on the ground that the employer’s explanation had no basis in fact because his absences had been miscoded by the FMLA administrator as miscellaneous instead of as intermittent FMLA as he had been conditionally approved.  When the plaintiff discovered the mistake, he was told that he would have to request HR to re-code his absences as protected by the FMLA.  However, when he went to the HR manager about the problem, she admitted that she could re-code his absences, but terminated him instead.   

The Court rejected the employer’s argument that it could rely on the honest belief rule based on incorrect information given to it by the FMLA administrator and other HR employees because the HR Manager was aware that the plaintiff had been conditionally approved for FMLA leave, that he had attempted to use that FMLA leave on all but one of the absences in question and that she had the authority to re-code the absences as covered by the FMLA leave.

Viewing the facts in the light most favorable to [the plaintiff], [the HR Manager] failed to catch the many errors that were made in the process of marking [his] absences as “MISU.” Even though she had the power to fix those errors, [she] did not recode [his] absences. Instead, she terminated him. A jury could find that [her] errors were the only thing giving her a reason to terminate [him], given that his absences would have otherwise been excused. Indeed, the record shows that [she] terminated [him] even though she knew that he was trying to use his FMLA days and that he was already conditionally approved for intermittent FMLA leave. Still, she refused to recode the absences as FMLA. A jury could thus find that the proffered reason had no basis in fact.

. . . .At this point, [he] has provided ample evidence indicating that [the employer] wrongfully designated his absences as unexcused when they should have been coded as FMLA. And [she] admitted that she terminated [him] even knowing that he qualified for FMLA leave and that he was trying to use his approved leave to cover his absences and tardies in December and January. [He] thus raised sufficient facts showing that FCA’s nondiscriminatory reason was pretextual.

In short, the honest belief rule will not protect a manager from her own error when she was on notice that she may have been given incorrect information during her investigation. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Wednesday, November 16, 2022

Plaintiff's Belated Inaction Results in Affirmance of Summary Judgment on ADA Claim

Last week, the Sixth Circuit Court of Appeals affirmed the dismissal of an ADA claim where the plaintiff had been terminated because his use of Percocet was inconsistent with his job driving heavy equipment with a commercial drivers’ license.  Woodruff v. Ohio Dep’t of Transportation, No. 22-3316 (6th Cir. 11-8-22).  The plaintiff had the opportunity to present countervailing evidence and had two years to seek reinstatement, but failed to do so until after the litigation commenced. 

According to the Court’s opinion, the plaintiff began taking Percocet after a motorcycle accident and failed shoulder surgery. When his employer learned of it, they realized that it was inconsistent with his duties as a heavy vehicle operator as required by his commercia driving license.  Federal regulations provide:

No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non–Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.

The plaintiff was requested to bring a note from his physician describing whether he could safely perform his job while taking Percocet.  Instead, the plaintiff returned with a letter from a CNP indicating that the plaintiff denied that Percocet impaired his cognitive functions and that he promised her in writing to not take any medication when operating heavy machinery.   Needless to say, the employer was underwhelmed and so arranged for an IME, which indicated that it was not safe for the plaintiff to drive while taking Percocet.   The plaintiff never submitted contrary information during his pre-termination hearing and never sought reinstatement during the two years after his disability separation (which is possible at the employer).   After his termination and commencing litigation, he obtained an affidavit from the IME physician indicating that he could safely perform his job duties.  The trial court granted the employer summary judgment.

The parties disputed whether the plaintiff was “otherwise qualified” to perform his duties in light of his Percocet prescription and the governing federal regulation.  The plaintiff argued that the CNP note should have satisfied the regulation. 

But this statement stops short of advising [the parties] that his Percocet use would not adversely affect his ability to safely operate a commercial motor vehicle. Rather, it tacitly concedes that [his] Percocet use could become a problem, but that he should be safe to continue working as long as he appropriately managed his medication.

The plaintiff then argued that the employer should have followed up with the IME physician, indicating that he would have provided the same information that he later provided to the plaintiff.  However, the Court found it was the plaintiff’s burden to show that he was qualified, not the employer’s.  Further, the physician did not provide the additional information until after he was fired, which is too late.   Employers are not liable for discriminatory decisions based on information that was not provided to them until after the termination decision.

The plaintiff then argued that the employer failed to make an individualized inquiry about his situation.  However, the Court concluded that the plaintiff was at fault for any breakdown in the interactive process.  The employer had requested him to provide information from his physician and the information provided was unsatisfactory.   The employer then arranged for an IME and the information provided did

not suggest that further inquiry would lead to a different conclusion. The Department also allowed [the plaintiff] to provide additional information before his termination. [The Plaintiff] did not take advantage of that opportunity, nor did he take advantage of the opportunity to seek reinstatement, even though he obtained Dr. Vogelstein’s affidavit within the two-year period in which he could seek reinstatement. Based on the record before us, the [employer] repeatedly sought to help [the plaintiff] fulfill subsection (b)’s requirements. In contrast, [the Plaintiff] took no action on his own until after filing this lawsuit.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Friday, November 4, 2022

EEOC Updates Mandatory Poster for Employee Breakrooms and Remote Distribution

 Just when you thought it was safe to walk back into an employee break room, the EEOC has updated its EEO is the Law poster for the first time in decades, retitling it Know Your Rights.  Its rollout of the poster was not without its hiccups because the link to the new poster did not work for the first 24 hours.  Because all employers with more than 15 employees are required to conspicuously post (or, remotely distribute, if applicable) the EEOC's poster, this will keep a lot of Human Resources professionals busy for a few hours. Employers who fail to post the mandatory poster can be fined. 

The new poster has revised the language used to discuss employees' rights under Title VII, the ADA and the ADEA to be free from discrimination and harassment and to file Charges of Discrimination.  It specifically notes that harassment is a prohibitted form of discrimination and that sex discrimination includes discrimination on the basis of pregnancy, sexual orientation and gender identity.  It also adds a QR code for digital access to the EEOC's webpage on how to file a Charge of Discrimination.  

The EEOC directs employers:

These posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post the notice digitally on their web sites in a conspicuous location. In most cases, electronic posting supplements the physical posting requirement. In some situations (for example, for employers without a physical location or for employees who telework or work remotely and do not visit the employer's workplace on a regular basis), it may be the only posting.

The EEOC also explains how to make them available to the visually impaired: 

Printed notices should also be made available in an accessible format, as needed, to persons with disabilities that limit the ability to see or read. Notices can be recorded on an audio file, provided in an electronic format that can be utilized by screen-reading technology or read to applicants or employees with disabilities that limit seeing or reading ability. A screen-readable electronic format is available below.

EEOC Prevails With Jury In ADA Perceived Disability Case

 On Tuesday, the EEOC announced that it had obtained a jury verdict in an ADA perceived disability discrimination case where the Sixth Circuit last year reversed the employer's summary judgment (as reported here).    According to the EEOC, the jury awarded the employee $6,000 in compensatory damages and the parties stipulated to a similar amount for back pay.  (The legal fees would clearly have dwarfed the verdict).      The employee had requested intermittent FMLA leave to deal with anxiety and there had been factual disputes about the existence, content and legitimacy of supporting medical documentation (all of which created issues for the parties' credibility).  The employee was terminated despite having no disciplinary history during her eight months of employment.  The employer contended that it had not regarded her as disabled because she had admitted being able to immediately return to work, but the legal standard is merely whether it perceived her as having a mental impairment.