Sixth Circuit Affirms Employer's Summary Judgment When Plaintiff's Behavior Justified Request for Fitness for Duty Exam and Refusal Was Not Protected Conduct

Last week, the Sixth Circuit affirmed an employer’s summary judgment dismissing claims of retaliation and violations of the ADA when the hospital employer required a physician to submit to a forensic psychiatric exam and drug test as a condition of reinstatement from a suspension.   Robitaille v. Trinity Health Grand Rapids,  No. 25-2154 (6^th Cir. July 20, 2026).  The Court agreed that the numerous reports of the physician’s unprofessional, erratic and paranoid behavior and his safety-sensitive job duties justified the suspension and fitness-for-duty request and the subsequent refusal to renew his employment agreement when he refused to submit to the exam.  It also rejected his argument that his previously stated objections to the employer’s data safety protocols actually motivated the request and non-renewal of this agreement and that his refusal to submit was protected conduct.

According to the Court’s opinion, the plaintiff anesthesiologist was hired in 2022 on a three-year contract.  In December 2023, the computer system experienced an outage and he expressed concerns and agitation about the need for additional safety protocols.    Thus began repeated concerns being expressed to the chain of command about his unprofessional and erratic behavior.  The Practitioners Committee eventual sent him “letters requesting explanations for certain patient-care choices, including multiple instances in which he refused to provide care.”  He summarily referred to patient files after the first few inquiries, but then stopped responding.  “Based on this pattern of conduct, and after an unsuccessful meeting with [him], [the Department Chair] summarily suspended [his] clinical privileges in February 2024.”  The following month, the Executive Committee reviewed the suspension and the Chair’s report, “based on his “disruptive behavior adversely affecting the effective operation of the Hospital.”  . . .  The Executive Committee conditioned any reconsideration of the suspension on [the plaintiff] completing a fitness-for-duty examination that included both drug testing and a forensic psychiatric evaluation.”  The plaintiff submitted to and passed the drug test, but refused to submit to the psychiatric examination.   When his contract expired, the employer decided to not renew it.  Litigation ensued.

Under the ADA, a covered employer may not “require a medical examination” of an employee unless it is both “job-related and consistent with business necessity.” . . .

The statutory standard authorizing medical examinations can be met by performance- or safety-based issues. On the performance side, an examination is proper if an employer has “a reasonable basis” to believe that the employee is “unable to perform the essential functions of [his] job . . . . Thus, when an employee’s “aberrant behavior” affects his “job performance,” an employer may be justified in “ordering a mental examination.”  . . . . On the safety side, requests are proper if the employer has a “reasonable basis” to believe that the employee “pose[s] a direct threat to [his] own safety or the safety of others.”  . . . . Safety-based concerns carry particular weight in high-stress environments—like hospitals—where “employees are in positions where they can do tremendous harm if they act irrationally.”  . . .  In such settings, employers “may be justified in requesting a psychological exam on slighter evidence than in other types of workplaces.”

 . . .

The clinical shortcomings [the Department Chair] presented—[the plaintiff’s] hesitation to perform routine tasks, avoidance of higher-risk patients, and inability to handle the standard caseload—could all cause a reasonable person to question whether [he] was “still capable of performing his job.”  . . .  Likewise, [his] reported “aberrant behavior”—including paranoid ideation and excessive risk-aversion—noticeably impaired his job performance by causing inefficiencies and delays.  . . . . Because [he] practiced anesthesiology, these performance concerns were inextricably linked with patient safety. Administering life-threatening anesthetic agents is inherently high-stakes work where a single careless or “irrational[]” decision by [him] could “do tremendous harm” to patients in his care. . . .

The combination of documented performance shortfalls and behavioral red flags thus gave the Executive Committee reasonable grounds to question both whether [the plaintiff] was “still capable of performing his job,”  . . . , and whether he “posed a direct threat” to patient safety,  . . . . Given the nature of these concerns, the Executive Committee reasonably sought to rule out underlying impairments related to substance abuse or mental health that could be hindering [his] fitness to practice. The decision to require the medical examination was therefore both “job-related and consistent with business necessity.” . . .

The Court rejected the plaintiff’s argument that the district court had inappropriately believed the truth of the allegations against him.” Rather, it correctly identified that “the relevant question is whether the [Executive Committee] had a ‘reasonable belief’ that a medical exam was warranted.”  . . .  And it explained that “the underlying truth of [the Chair’s] claim does not impact whether the [Executive Committee] was reasonable in relying on it.””

The Court also rejected the plaintiff’s argument that the report and examination request was pretext for discrimination or retaliation.  “For starters, our decision in Sullivan adopted the objective-evidence standard for ADA medical-examination claims and held that “there is no need to assess an employer’s intent in ordering a fitness-for-duty examination.””

The Court also rejected the plaintiff’s argument that all of this was pretext as retaliation for his concerns with the computer safety protocols because he failed to address the subsequent months of multiple reports about his behavior and performance issues and his refusal to respond to them or to cooperate with the investigation by the Practitioners Committee. “Those issues, as mentioned, provided an intervening, non-retaliatory basis for the Executive Committee to order the medical examination.”

The plaintiff also argued that his refusal to submit to the fitness-for-duty examination was protected conduct under the ADA.  The Court rejected that argument as well.  The employer’s “request did not violate the ADA, and [he] offers no other arguments that his opposition was reasonable and grounded in good faith.  . . .  [His] argument that he engaged in protected activity therefore fails.”

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.

DOL Addresses Compensable Travel/Commuting Time and Continuous Workday Doctrine in Two Opinion Letters

Last week, the federal Department of Labor Wage and Hour Administrator issued two opinion letters concerning the compensability of time spent travelling from home to work or one’s first client assignment.  Ohio law generally follows the FLSA and employers can rely on opinion letters for a good faith defense, although these letters are not binding on courts.   The DOL explains that time spent commuting from home to work generally benefits the employee more than the employer (because the employee chose where to live) and is generally not compensable because, unless the employee is performing work during the commute, the time is spent mostly for the benefit of the employee (like lunch breaks).  “[A]s a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday.”   Thus, employers who permit employees to work remotely from home need not compensate employees who (i) only work, or start working, from home in the morning before then commuting to the office or (ii) perform some work from home after travelling home in the evening as a convenience.  However,  in the next letter, the DOL found that an employee who did not have a regular work office and always commuted to directly to his first client assignment and was required to spend almost an hour before leaving each day scheduling client appointments (sometimes while driving), then the drive time and scheduling time was compensable, but not the time spent receiving pages with such assignments. 

In the first letter, FLSA2026-9,  the Administrator addressed an employer which generally required employees to spend the entire day working from home or working in the office to avoid having to pay for mid-day commuting time even though (i) some employees preferred to work from home during rush hour in order to reduce their commuting time, (ii) some employees needed to leave early because of bus schedules, but were otherwise willing to work more hours and overtime and (iii) some employees wanted to work half days from home and half days in the office.   In none of these scenarios were the employees performing any work during their travel to or from the office (which would, of course, be compensable).  Because scheduling the commute was for the convenience of the employee and benefitted the employee (who chose where to live) more than the employer, the DOL explained that the time was no more compensable than a lunch or other rest break. 

Under the Portal Act, “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform” are not compensable activities. 29 U.S.C. § 254(a)(1). However, both before and after the Portal Act, WHD and courts have long confirmed that “[n]ormal travel from home to work is not worktime.” 29 C.F.R. § 785.35;  . . .  even in its pre-Portal Act decisions, the Court never held that time an employee spent traveling from his or her home to an employer’s worksite was generally compensable. This is because normal commuting travel between home and work is a “normal incident of employment” that may take more or less time depending on where an employee lives—i.e., it predominantly benefits employees by allowing them to live where they choose.  . . . Ordinary commuter travel is excludable whether an employee “works at a fixed location or at different job sites.” 29 C.F.R. § 785.35.

 . . .

 . . . though ordinary commuting is not compensable work—as explained above— travel from home to work can constitute work in some instances, such as “if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers.” 29 C.F.R. § 785.36; see also id. § 790.7(c). Similarly, “home to work [travel] on [a] special one-day assignment in another city” is compensable worktime, though an employer may deduct the time that an employee would have otherwise spent commuting to his or her “regular work site.” Id. § 785.37;  . . .  Finally, if an employee performs any work during home-to-work travel, it would “of course be counted as hours worked.” 29 C.F.R. § 785.41; see also id. § 790.7(d). These types of travel are not considered “ordinary” commuting because they are not normal incidents of employment and primarily benefit the employer as opposed to the employee.

The Continuous Workday Doctrine.  The “continuous workday” doctrine or rule establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” . . . For example, “a messenger who works a crossword puzzle while awaiting assignments” or “a factory worker who talks to his fellow employees while waiting for machinery to be repaired” is considered to be working, even if the employee is “allowed to leave the premises or the job site during such periods of inactivity.” 29 C.F.R. § 785.15. Similarly, a waiter who must wait during his shift for customers to come in is working. . . .

The continuous workday doctrine reflects a general presumption that an employee’s time within the workday predominantly benefits the employer—and that time outside the workday mainly benefits the employee. It thus historically benefits both employers and employees. Generally, an employee’s time during the workday is compensable, even though it may provide employees with some benefits, whereas outside the continuous workday time is generally not compensable even though it may provide employers with some benefits. . . .

Like many general principles, there are recognized exceptions to the continuous workday doctrine—both for time spent at an employer’s worksite that clearly benefits the employee more than the employer and, concomitantly, time spent away from an employer’s worksite (e.g., at a worker’s home) that benefits the employer more than the employee. The former is, therefore, excludable from compensable worktime and the latter properly counted as hours worked. Specifically, the Department has recognized off-duty time, defined as “periods during which an employee is completely relieved from duty and which are long enough to enable [an employee] to use the time effectively for his own purposes,” and bona fide meal periods as time during the workday that is nonetheless not worktime and thus need not be compensated. 29 C.F.R. §§ 785.16, 785.19. And, of course, any hours worked before or after an employee’s regular working hours constitute worktime, even if the work is performed away from the worksite, including at home. 29 C.F.R. § 785.12.

 . . . , as a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday. . . .

 .. .

 . . . ,” otherwise-ordinary travel between home and work does not become worktime simply because it occurs during the workday—that is, at some point in between an employee’s first and last “principal activities.”  . . .

Rather, when an employee engages in an “ordinary” commute, the commute is simply a “normal incident of employment,” and thus is not “work.” 29 C.F.R. § 785.35.22.   We therefore confirm here that if home-to-work travel is “ordinary,” it need not be paid or recorded as worktime, and we clarify that ordinary home-to-work travel that occurs during the workday constitutes a third category of time during the workday, in addition to bona fide meal breaks and off-duty time, that is not considered “hours worked” under the FLSA.

 . . . .

 . . .  the timing of such commuter travel is genuinely voluntary, as employees might have any number of reasons to adjust the timing of their daily commutes. For example, an employee might need to remain at home for part of his or her workday due to a sick child or a visit from a maintenance worker during a scheduled appointment window. Because optional mid-day commuter travel allows employees to accommodate such personal needs, it can benefit employees as much or more than commuter travel which occurs at the beginning or end of the workday. Accordingly, voluntary commuter travel which occurs in the middle of the workday remains an ordinary commute and does not qualify as work.

In the second letter, FLSA2026-10, the employee did not have a regular office, but rather, performed maintenance and repair work on hospital MRI machines throughout the region where he lived.  He would receive pages each morning with an assignment and then would spend roughly 45 minutes before his paid shift began at 8 am calling those hospitals and scheduling appointments.  Sometimes, he would have to leave well before his 8 a.m. shift and schedule appointments on the way.  Thus, he had no “normal” commute because each day he was sent to a different location. 

The DOL found that the pages (which took approximately 15 seconds each to receive) did not constitute work time.  It also did not matter that his employer provided him with a vehicle in which to travel.   However, the time he spent scheduling appointments, consulting with engineers, and driving to appointments did constitute compensable work time.  “The “continuous workday” doctrine establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” . . .

Compensable Travel Time. Unlike ordinary commuting time or travel time excepted by the Portal Act or ECFA, any travel that is part of an employee’s principal activity, such as travel between different worksites during the workday, is considered part of the day’s work and therefore compensable hours worked.  . . .  Additionally, because an employee must be paid for all hours worked, courts and the Division have long recognized that time spent during an otherwise non-compensable ordinary home-to-work or work-to-home commute becomes compensable hours worked when the employee is working during the commute time.  . . .  Thus, if, during a commute, an employee performs activities that are integral and indispensable to the principal activities he or she is employed to perform, or said principal activities themselves, and not incidental to the use of an employer-provided vehicle for commuting, then the time spent on those activities constitutes compensable hours worked even though the activities occur during an otherwise non-compensable commute.

 . . . .

Receiving assignments remotely is a minor consequence of driving an employer-provided vehicle to and from home. Otherwise, an employee would have to report to a central work location to receive assignments, which would frustrate the convenience of a program allowing employees who work at multiple job sites per day to drive an employer-provided vehicle directly to and from home. . . . .

On the other hand, time spent calling clients to schedule and arrange the details of appointments, including scheduling other field service engineers, constitutes compensable hours worked. These activities are required by, and primarily benefit, your employer; therefore, they constitute work. Furthermore, they are a critical element of your primary responsibilities, and consequently are not incidental to your commute or otherwise preliminary but rather integral and indispensable to your principal activity of installing and servicing medical equipment at your employer’s clients’ locations. Unlike simply receiving pages, communicating with clients to schedule appointments is a necessary step to performing the services requested by them.  . . .  The same is true of calling other field service engineers to ensure that clients’ service requests are fulfilled. Similarly, unlike receiving pages, which is specifically necessary for you to receive assignments from home, one must call clients to schedule appointments in any event if clients’ requests are to be fulfilled. This activity is thus intrinsic to the services you perform for clients, and you cannot dispense with such work.  . . . .

 . . . .

Under the facts described above, we conclude that this travel is not an ordinary commute, but rather compensable travel. We reach this conclusion based on the application of longstanding FLSA principles to the totality of the circumstances. Here, not only are both the time and manner of the travel based primarily on the employer’s needs rather than the employee’s choice, but your employer is also requiring you to engage in substantial work both immediately before the travel, when you spend most of an hour engaged in phone calls, and immediately after your travel, when you work at your first worksite of the day. This bears few, if any, of the hallmarks of an ordinary commute between an employee’s home and worksite. Indeed, under the circumstances described, you lack virtually any of the types of freedom and flexibility that typically accompany an ordinary home-to-work commute time, such as the choice of the mode of transportation, the choice of departure time, and the ability to spend time on personal tasks before or during breaks in the travel. For these reasons, we conclude that your travel is not, in fact, an “ordinary” commute that is non compensable regardless of when it occurs. To be clear, the Division would consider this sort of travel to work to be explicitly excluded from compensability under the Portal Act if it were to occur before or after the workday. . . .

 . . .

 . . . . you are sometimes required (and accordingly must regularly plan) to spend the substantial majority of the hour before your travel making calls to clients, and to other engineers as necessary, to fulfill clients’ service requests, with any personal activities you undertake limited to those you can perform simultaneously with (or in very short breaks between) your work duties, before you immediately travel to your first worksite at the time and in the manner directed by your employer. . . .

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.

EEOC Proposes Regulation to Rescind Employer Demographic Recordkeeping Requirements for EEO-1

 Yesterday, the EEOC announced that it was proposing to rescind the regulations which require many employers (with over 100 employees or with a certain federal contract, etc. ) to maintain and file demographic information on an annual basis.  In short, the EEOC proposes to abolish the EEO-1 and EEO-2, etc. requirements because they are burdensome to employers and the government and are contrary to goal of a color-blind society when most employers are not accused of unlawful discrimination.   It also contended that it encouraged stereotyping and impermissible preferences.   This action would remove the requirement to request such information from newly hired employees, etc. "Because the Commission is proposing to rescind the EEO reporting requirements, it is also proposing to rescind the recordkeeping and record preservation requirements associated with the EEO Reports." The proposal has not yet been published in the Federal Register, but once it is, the EEOC will accept comments on its proposal for 30 days under the Administrative Procedures Act. 

As stated in the proposed Notice:

    Removal of EEO-1 Reporting Requirements and Conforming Amendments.   The proposed rule would remove current § 1602.7, which contains the EEO-1 reporting requirement. The proposed rule also removes § 1602.8, which contains a penalty for making false statements on the EEO-1 report; § 1602.9, which contains the Commission’s remedy for a regulated entity’s failure to file an EEO-1 report; and § 1602.10, which is currently reserved and therefore unnecessary. It also removes §§ 1602.11 and 1602.12, which reserve to the Commission the right to impose additional reporting or recordkeeping requirements; these sections are unnecessary to retain because section 709(c) of Title VII authorizes the Commission to establish such requirements in the future. The proposed rule removes § 1602.13 because it contains requirements related to the EEO-1 report that are not necessary in the absence of the reporting requirement. The Commission restates its proposal to amend § 1602.14 to add a reference to the PWFA, as first proposed in the Commission’s November 21, 2024 NPRM.

 . . . . 

Amendment and Removal of Sections Pertaining to Investigations The Commission proposes to amend § 1602.56 to remove a reference to the EEO reporting requirements and to clarify that the section applies to record preservation in addition to recordkeeping. The Commission further proposes to remove §§ 1602.57 and 1602.58 because they concern requests for exemption from reporting and would be unnecessary in the absence of the reporting requirements.  

 . . . . 

    EEO-1 annual reporting requirements apply to private employers with 100 or more employees and to federal contractors that have 50 or more employees and meet certain criteria. 

 . . . 

§ 1602.14 Preservation of records made or kept. Any personnel or employment record made or kept by an employer (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records 54 of the individual terminated shall be kept for a period of one year from the date of termination. Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the ADA, GINA, or the PWFA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The term “personnel records relevant to the charge,” for example, would include personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of “final disposition of the charge or the action” means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action is brought against an employer either by the aggrieved person, the Commission, or by the Attorney General, the date on which such litigation is terminated. (Approved by the Office of Management and Budget under control number 3046-0040)  

 

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.

Sixth Circuit Affirms Dismissal of Retaliation Claim because Employee's Protected Conduct is Not Outweighed by Unprotected Misconduct.

 On Friday, the Sixth Circuit affirmed an employer’s summary judgment on a retaliation claim.  Crisp v. Scioto Ambulance District, No. 25-3885 (6^th Cir. 2026).  The plaintiff had reported to a supervisor an incident of sexual harassment several years earlier, but never filed a Charge or lawsuit even though the alleged harasser suffered no disciplinary action after being scheduled on separate shifts.  More recently, she showed at work pornographic pictures of the alleged harasser and his wife to new female co-workers which were online and was promptly fired for creating a hostile work environment.  “If [she] had a legal claim based on [his] alleged misconduct, she should have pursued it. [His] alleged wrongs at work did not give [her] the right to show alleged pornography while on the job.”  In other words, “ [w]hen an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.”

According to the Court’s opinion, the plaintiff and alleged harasser worked together as EMTs for the City ambulance department and he frequently sexually harassed her with lewd comments.  She learned that he had posted pornographic images of himself on a public website profile seeking partners outside of marriage.  They later come to work together again at the County ambulance district.  Again, he engaged in horseplay and once groped her.   After she reported it to a supervisor, he suffered no disciplinary action, but was scheduled on different shifts from her thereafter.   She let anyone who would listen know that she found him to be a pervert, etc., but pursued no legal or administrative action.  Several years later, after some new female EMTs were hired (including his wife), she felt compelled to warn them about him by showing them the pornographic images he had posted (and possibly some that included his wife).  The employees complained and, following an investigation, the plaintiff was fired for creating a hostile work environment for showing pornographic images in the workplace when simply providing a verbal warning would have been sufficient.   She filed suit for retaliation. 

Federal and state law ban retaliation against an employee for opposing an employer’s discriminatory practices.  . . .  So an employer cannot fire an employee for simply telling her co-workers that she is being sexually harassed at work. . . .

 . . . .

Displaying the [his] alleged Fetlife profiles to other co-workers while at work was not protected activity. True, [the plaintiff] complained that [he] had made inappropriate comments and had touched her inappropriately while on their shift. If that happened, [his] conduct was deplorable and sanctionable. See, e.g., Ohio Rev. Code § 2907.06(A) (sexual imposition); Ohio Admin. Code § 4765-9-01(B) (EMTs must “exhibit respect for the medical needs and personal values of . . . other EMS and healthcare practitioners”). But that would not excuse how [she] responded.  

Instead of seeking redress in a lawful way, [the plaintiff] took matters two steps further by showing nude and perhaps also sexually explicit images of both [the alleged harasser] and his wife (who had nothing to do with [his] alleged workplace misconduct) to other co-workers while at work. [She] did not need to share those images to make her point, nor can she justify showing the images of [his] wife, given that [the plaintiff’s] complaints of workplace harassment pertained only to [him] himself. Even if the[y] posted these images online and publicly shared some of this information, that does not mean that their co-workers had to be subjected to seeing or hearing about it while on the job. In the workplace, the law requires that some things be left unseen. The[ir] alleged Fetlife profiles are two of them.

[Plaintiff] argues that Title VII protects at least some of what she said and did at the meeting  . . . . We agree, see,  . . . . but that is not enough for her claim to survive. When an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.  . . . .  Put more concretely, the mere fact that [she] was complaining about [his] behavior did not give her the right to also show the nude and possibly sexually explicit pictures of him and his wife. For good reason, [she] does not argue that displaying these images while at work is protected activity. So the fact that she may have been allowed to tell her co-workers about [his] alleged workplace misconduct does not excuse her own misconduct.

 . . . First, to the extent that Title VII provides a remedy for employees in a sexually charged workplace, that remedy lies in a hostile-work-environment claim,  . . .  and [she] dropped that claim in her summary judgment papers. Second, [she] does not bring a disparate-treatment claim, nor does she argue that similarly situated EMTs at Scioto shared nude or sexually explicit images without being fired . . .  Thus, to win relief from our court, Crisp is essentially left to persuade us that a jury could find her employer violated Title VII when it fired her for sharing nude images of a co-worker while on the clock. That she has not done.

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.

Unanimous Sixth Circuit Rejects Retaliation Claims That Lacked Protected Activity When Plaintiff Never Retained Law Firm or Joined Lawsuit

Yesterday, a unanimous Sixth Circuit Court of  Appeals affirmed a healthcare employer’s summary judgment on retaliation claims brought by a terminated physician who opposed the employer’s COVID vaccination policy and shared internal communications about the policy with a class action law firm without retaining the law firm, joining the class action or even filing an EEOC Charge.  DiChiara v. Summitt Medical Group, Inc, No. 25-5396 (6^th Cir. 2026).   The Court found that the conduct which caused her termination was not protected participation because she never joined or commenced an official proceeding before her termination or misconduct.  Her misconduct could have been protected opposition except that she did not have an objectively reasonable belief at the time of her misconduct that the employer was violating the law since its policy was facially valid and she was unaware of how it had been addressing requests for religious and medical exemptions. 

According to the Court’s opinion, on August 1, the employer adopted a COVID vaccination policy which provided that all employees must be vaccinated by October 1 or seek a medical or religious exemption by September 15.  The plaintiff physician opposed the employer’s COVID vaccination policy on scientific, medical and religious grounds.  However, she initially only publicly opposed it on scientific grounds.   

After seeing a Facebook post from a disbarred attorney who was working to fight similar vaccination policies at various regional hospitals, she contacted him for advice about contesting the policy on medical, scientific and religious grounds, although she did not intend to assert religious grounds until seeking her own exemption.  However, she declined to sign a letter of representation or to join a class action lawsuit that was then filed against her employer.  Instead, she met with her employer and presented her scientific and medical concerns.  

When her employer did not rescind its policy after her meeting, she arranged for a petition by similarly minded co-workers and shared information about the petition and other internal emails with the law firm, asking that it not be made public and that she assumed that her religious exemption would be granted when she sought it.  The petition was submitted to her employer with 47 signatures on August 31.  The law firm then included the information about her emails and the petition in its lawsuit, which embarrassed her, and caused her to demand that the information be removed and to apologize to her employer and colleagues because she never intended to seek litigation, had never retained the Deters law firm and never signed an affidavit.

She formally sought her religious exemption on September 13 and it was granted on September 17.   By October 1, all employees had been vaccinated or received an exemption.  The plaintiff was fired on October 4 for, among other things, misappropriation of company property, disloyalty, unprofessional behavior, etc.  and subjected to a non-compete clause.   She then filed an EEOC Charge and initiated litigation. 

The Court affirmed dismissal of the lawsuit.  Of interest, was its clear bright-line guidance concerning her federal retaliation claims.

To establish a prima facie case of retaliation, [the plaintiff] must show that she (1) “engaged in protected activity,” (2) her “employer knew of the exercise of the protected right,” (3) her employer took an “adverse employment action” against her, and (4) “there was a causal connection between protected activity and the adverse employment action.” . . .

We start and end by analyzing protected activity. Title VII and the ADA provide two distinct ways that an employee can engage in protected activity. First, an employee could “participate[] in any manner” in a Title VII or ADA investigation, proceeding, or hearing. 42 U.S.C. § 2000e-3(a); id. § 12203(a). Second, an employee could “oppose[]” unlawful discrimination. Id. The distinction between the opposition clause and the participation clause “is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.”  . . . .. But neither clause covers [her] conduct in this case.

Participation. [She] argues that she participated in a Title VII proceeding because she “confidentially gave employer documents to a law firm . . . to help build Title VII and ADA claims.”  . . .  This sort of indirect assistance does not qualify as protected conduct under the participation clause on the facts of this case. The participation clause “protect[s] the employee who utilizes the tools provided by Congress to protect his rights.”  . . .  “[O]nce activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.” . . . The protection persists even if “[an] employee is wrong on the merits of the charge” or “the contents of the charge are malicious or defamatory as well as wrong.”

Such broad protection necessitates a clear starting point. We have previously held that participation must be “direct”—it covers activities like being a party to a lawsuit, providing deposition testimony, or responding to a subpoena.  . . .  By contrast, we have held that “any activity by the employee prior to the instigation of statutory proceedings is to be considered pursuant to the opposition clause” rather than the participation clause.  . . .  To hold otherwise, we explained, “would blur the distinction between opposition to unlawful practices and participation in proceedings.”

[The plaintiff] was not a party to any lawsuit and her own statements show that she never intended to “seek litigation,” that she “never asked Deters Law to represent [her],” and that she never “sign[ed] any affidavits for Deters Law.”  . . .   . . .  Instead, she argues that her emails to Eric Deters were protected activity because she sent them as “ammunition” to help build Deters’s case.  . . .  But [her] pre-lawsuit emails constitute indirect assistance at best. That’s not enough.

 . . .

We ask simply whether an employee was directly involved in an ongoing proceeding.  . . . And here, the answer is no.   [The plaintiff] has presented no evidence of direct participation in a Title VII or ADA proceeding. No lawsuit was ongoing at the time she forwarded the emails. And, even with respect to the later-filed lawsuit, she was never a party. Nor did she participate in a deposition or subpoena. Indeed, she affirmatively renounced any involvement in the relevant lawsuit as a party or witness. So her conduct doesn’t qualify.

Opposition. [The plaintiff] also argues that her forwarding of confidential internal emails to Deters constituted protected opposition. For the opposition clause to apply, an employee must “challenge[] an employment practice that [s]he reasonably believe[s] was unlawful.”  . . .  That requires the plaintiff to make two showings: (1) that she actually, subjectively believed that her employer was engaging in discriminatory activity and (2) that such a belief was objectively reasonable in light of the facts.

The Court accepted that she may have subjectively believed at the time of her misconduct that the policy was unlawful and was concerned that it would ultimately deny her religious exemption request.  However, there was no evidence that this belief was objectively reasonable based on the facts that she knew at the time or as they eventually developed.

 . . .  Objective reasonableness requires a finding that “a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee would believe that the conduct complained of was unlawful.”  . . .  This inquiry is a matter of law “when no reasonable person could have believed that the facts known to the employee amounted to a violation or otherwise justified the employee’s belief that illegal conduct was occurring.”  . . .  

That’s the case here. No reasonable person could have believed that the facts known to [the plaintiff] amounted to a violation of Title VII or the ADA. [She] offers no evidence known to her at the time that would support a reasonable belief that [her employer] engaged in “any practice made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). [Its] vaccine policy, which promised religious and medical accommodation, was facially legal. And [she] does not claim that she thought otherwise. So [she] needed some additional basis to think that [it] would act unlawfully.

[She] fails to provide that crucial evidence. [She] had not yet applied for a religious exemption and didn’t have any information about how [her employer] would process her request—especially because she intentionally avoided discussing her religious objections with [its] leadership. In fact, when [she] told Deters that she planned to “apply[] for a religious exemption,” she “assume[d] [she] w[ould] get it granted.”  . . .  And she expressed no qualms with any additional preventative requirements (like masking) that she would face as an unvaccinated employee if [her employer] did grant her exemption. Neither does [she] claim that she knew of anyone who had been denied an exemption or fired for religious beliefs.

[The plaintiff] points to the fact that, as of September 13, [her employer] had granted only 10% of the total number of religious exemption requests it eventually approved (76 out of 760). She frames this as evidence that [it] intended to withhold accommodations. But [she] presents no evidence of the percentage of requests made by September 13 that [it] had granted (or failed to grant). And [the employer] offered uncontested testimony that “[they] weren’t holding exemptions”; instead, “a whole bunch of these [requests] came in at . . . or immediately prior to the deadline” on September 15.  . . .  What’s more, [the plaintiff] does not allege that she knew about this data at the time of her alleged opposition, so it couldn’t have formed the basis of any reasonable belief.  . . .  Without some objective basis to ground her subjective fear of unlawful activity, [her] conduct did not amount to protected opposition.

Because the plaintiff failed to identify any protected activity which could support an actionable retaliation claim, the Court did not address the remaining elements of a retaliation claim or engage in any burden shifting or discussion of pretext.  It also dismissed her state law claims. 

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.

Sixth Circuit Affirms Dismissal of Lawyer's Complaint that His ADHD Should Excuse Submitting Law Firm Time Sheets For Failure to Allege Reasonable Alternative

 Last week, the Sixth Circuit affirmed a law firm employer’s judgment on the pleadings on claims by a former associate lawyer who alleged that his ADHD prevented him from submitting timely and accurate time sheets so that the law firm could bill its clients for his time and services.  Longergan v. Gallagher Sharp LLP, No. 25-3808 (6^th Cir. May 29, 2026).  As a former law firm associate, I of course found this fascinating.  The Court agreed that failing to allege any details about proposed accommodations was fatal to his failure to accommodate claim because bare legal assertions that a reasonable accommodation and job modifications had been made were insufficient to state a viable claim. “Plaintiff did not create the plausible inference that he is qualified to perform his job with or without a reasonable accommodation because he did not adequately plead the fact that he proposed any accommodation to Defendant, let alone a reasonable one.”    Although he could have moved to amend his complaint to provide details about his proposed job modifications, he failed to do so.   Finally, the employer was not required to engage in the interactive process until he proposed a reasonable accommodation, which his complaint failed to sufficiently allege that he had done. 

According to the Court’s opinion, the plaintiff suffered from ADHD and had trouble submitting time sheets.  (Law firms bill clients based on the time sheets submitted by their attorneys and is how the firms pay their employees and rent, etc.) While the plaintiff alleged in his complaint that he suggested modifications and accommodations, he did not describe what they were in his complaint.  Instead, he argued that his suggestions were flatly rejected as unworkable.   In later briefing, these suggestions turned out to be (1) having a legal assistant identify the projects on which he worked each day so that he could then insert the amount of time spent on each; (2) assigning him only flat rate projects or (3) giving clients a discount for his work.   After he was put on probation, he managed to comply for a few weeks, but then realized within two months that he had failed to submit some weekend hours.    He then became hopeless, “checked out” and was terminated three months later.    He filed a pro se lawsuit that Fall.   

After answering the complaint, the law firm then moved for judgment on the pleadings on the basis that the plaintiff was not a qualified individual with a disability because his complaint failed to factually describe any reasonable accommodations that he had proposed.   The plaintiff responded that he only needed to satisfy notice pleading – that he had generally alleged his proposal of an unidentified reasonable accommodation and the law firm’s failure to engage in the interactive process.  Although the plaintiff indicated that he could amend his complaint, he never submitted a proposed amended complaint to fix the problems with his pleading or a formal motion.  Moreover, the alleged accommodations he indicated that he had requested failed to satisfy the requirement that they be reasonable or effective to solve the problems.

While a complaint

need not include “detailed factual allegations,” but it must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation[,] . . . a formulaic recitation of the elements of a cause of action[, or] . . . ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”  . . . . “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”  . . . . Although we “‘construe the complaint in the light most favorable to the plaintiff,’ . . . [m]ere labels and conclusions are not enough; the allegations must contain ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”  . . .  Those “rules . . . exist to keep litigants from sandbagging their opponents until they are on notice of what their allegations lack.”  . . .

Although a plaintiff bringing an employment discrimination suit need not establish a prima facie case at the pleading stage, he still must plead facts showing that he is entitled to relief.   . . . The ADA “prohibits ‘discriminat[ion] against a qualified individual on the basis of disability’ as it applies to aspects of employment including hiring, advancement, and firing.”  . . . The statute includes in the definition of disability-based discrimination “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability . . . , unless . . . the accommodation would impose an undue hardship on the operation of the business . . . .” 42 U.S.C. § 12112(b)(5)(A). A qualified employee is one “who can perform the ‘essential functions’ of his job ‘with or without reasonable accommodation.’”  . . . . Thus to state a claim, Plaintiff had to “plead facts that make plausible the inference that (1) []he is disabled, (2) []he is qualified to perform [his] job requirements with or without reasonable accommodation, and (3) []he would not have been discharged but for the disability . . .  With respect to the second element, Plaintiff would ultimately have to show that he “propose[d] a reasonable accommodation” to Defendant. . . .

 . . . Plaintiff’s complaint failed to adequately state a failure-to-accommodate claim. Plaintiff did not create the plausible inference that he is qualified to perform his job with or without a reasonable accommodation because he did not adequately plead the fact that he proposed any accommodation to Defendant, let alone a reasonable one. The complaint merely stated that Plaintiff had requested “a modification to job requirements” and “repeatedly approached partners at the firm and suggested accommodations . . . .”  . . . . Those allegations are conclusory recitations of the reasonable accommodation element, devoid of any factual substance. Plaintiff failed to provide notice to both Defendant and the district court about what he believes would have constituted a reasonable accommodation that would have qualified him for the job. They were left to fill in the blanks. Even accepting all of Plaintiff’s well-pleaded material allegations as true, the district court did not have a basis to infer that Defendant could be liable for disability discrimination by failing to accommodate Plaintiff’s requests. . . . .

Plaintiff’s claim that Defendant failed to engage in the mandatory interactive process suffers from the same infirmity. The regulations under the ADA state, in relevant part, that “it may be necessary for the [employer] to initiate an informal, interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”  . . . . That process is mandatory, id., “[b]ut an employer’s failure to engage in the interactive process is actionable only if the employee can demonstrate that she was qualified for the position[,]”  . . .  Without pleading facts to support that he proposed any accommodation, Plaintiff failed to plead that he was in fact qualified, as defined by the statute.

The Court also found that the district court had not abused its discretion in denying leave to amend the complaint when the plaintiff had 5 months in which to submit a formal motion and failed to do so.  Mentioning in a memorandum in opposition that he could  amend his complaint to address its deficiencies is not a proper motion and need not be considered or granted by a trial court. 

As for the time sheets, all private practice attorneys hate doing them, but they are not generally required when working for corporations, non-profits or government agencies. 

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.

DOL Issues Several Interesting Opinion Letters

Last week, the federal Department of Labor issued several Opinion Letters concerning the FLSA, regular rate and bonuses, meal breaks, time clock rounding and extra pay for exempt employees.  Such letters indicate the DOL’s official position, but it is not binding on courts.  In the first, Op. FLSA2026-5, the DOL explained that an exempt nurse trainers could be paid an hourly rate for picking up staff nurse shifts outside their regular working hours without destroying their exempt status when their primary duties remained their exempt work and the extra non-exempt shifts constituted less than 50% of the hours worked that week. In the next Opinion Letter FLSA2026-6, the DOL explained that employers need not recalculate the regular rate each quarter when providing non-discretionary bonuses that are based on the employee’s total earnings (i.e., straight and overtime) in a way that does not dilute their overtime earnings.  In another Opinion Letter FLSA2026-7, the DOL explained that an employer need not pay its employees for 30 minute meal breaks during which the employee is relieved of work responsibilities even if that is insufficient time to depart a corporate campus to travel off-site for more than 15 minutes.    In the final Letter FLSA2026-8, the DOL questioned the employer’s practice of rounding employees’ work time to the beginning or end of their scheduled shift, whether it might not be compensating all employees for certain “integral and indispensable” pre-shift activities, and whether the founding was neutral de minimis, but agreed that the employer need not compensate employees for waiting to clock in and out as long as it was before or after their principal work activity.

In the first opinion, exempt Nursing Professional Development Specialists are involved in the professional development and training of staff.  While they may assist in their discretion patients and staff nurses, they are never the patient’s primary nurse.   Some of these exempt employees sometimes pick up one or two non-exempt Staff Nurse shifts outside their normal working hours (i.e., on weekends).  Staff Nurses are paid on a hourly basis and the Specialists are  paid this same hourly rate when they pick up Staff Nurse shifts.   The DOL observed that the FLSA regulations permit employers to pay exempt employees an extra hourly rate when they work extra hours outside their normal work schedule without losing the exemption.  Further, the DOL also observed that the FLSA regulations also permit exempt employees to perform some non-exempt work as long as their exempt duties remain their primary duties, or most important part of their job.  Typically, if the employees spends at least 50% of their time on their primary exempt duties, the position will remain exempt, but it remains possible that an employee will remain exempt even if their exempt duties take less than 50% of their time.  Thus, in this case, the Specialists still spent more than 50% of their time performing exempt work and were permitted to receive additional hourly compensation for their extra work. 

In the next Opinion, the DOL addressed a quarterly profit bonus paid to non-exempt employees that was based solely on their respective percentage of straight and overtime hours worked.  In other words, the $100K, was divided among the employees at the end of the quarter based on their respective, comparative percentage of hours worked (both straight time and overtime). Their overtime hours were not diluted by other types of compensation (such as discretionary bonuses, expenses, gifts, benefits, etc.). 

Nevertheless, recomputation of an employee’s regular rate and the resulting additional overtime pay are unnecessary for a “percentage of total earnings” bonus, although they may be required for other types of bonuses. Assuming “total earnings” is the sum of an employee’s total straight-time earnings and total overtime earnings, a percentage of total earnings bonus is a bonus payment that provides for “the simultaneous payment of overtime compensation due on the bonus” (i.e., its own required overtime compensation). 29 C.F.R. § 778.210; see also id. § 778.503. This is not an exception to the FLSA’s overtime pay requirement, but the Division’s longstanding recognition that a bonus that increases an employee’s total earnings by a fixed percentage “increases both straight time and overtime wages by the same percentage, and thereby includes proper overtime compensation as an arithmetic fact.” Id. § 778.503; see also id. § 778.210 (explaining that such percentage of total earnings bonuses “satisfy in full the overtime provisions of the Act and no recomputation will be required”); Brock v. Two R Drilling Co., 789 F.2d 1177, 1179 (5th Cir. 1986). Requiring additional overtime pay for such bonuses “would be to impose overtime upon overtime,” and, therefore, be inconsistent with the Act. Siomkin v. Fairchild Camera & Instrument Corp., 174 F.2d 289, 294 (2d Cir. 1949).

Employers generally calculate total earnings bonuses in one of two ways. The first, as described in 29 C.F.R. § 778.210, occurs when an employer applies a percentage to an employee’s total straight-time and overtime earnings directly without regard to how the employee’s earnings or hours compare to those of other employees. The second takes place when an employer uses earnings or hours to compare each employee participating in a bonus pool to all the employees participating in the bonus pool. . . . an employer may divide each employee’s total earnings by the total earnings of all employees participating in the bonus pool and then multiply that percentage by the bonus pool amount to determine each employee’s share.  Or, as provided in FOH 32c05a, an employer may divide the bonus pool amount by the participating employees’ total earnings and then multiply that percentage by each employee’s total earnings to determine his or her bonus payout. Either approach is acceptable.

Generally, an employer may consider additional factors (such as seniority, work location, job title, base pay, performance, or conduct) to determine the magnitude of an employee’s percentage increase. As long as the resulting percentage increase to each employee’s pre-bonus overtime earnings is no less than the percentage increase to their pre-bonus straight-time earnings, then the principle set forth in sections 778.210 and 778.503 applies even though different employees might receive different percentages. However, an employer may not use the percentage of total earnings bonuses “to evade the overtime requirements of the Act[,]” 29 C.F.R. § 778.210, such as where the percentage bonus “decrease[s] . . . in direct proportion to increases in the number of hours worked in a week in excess of 40.” See id. § 778.503.4 An employer also may not dilute an employee’s overtime earnings by either: (1) applying a higher percentage increase to the straight time earnings than the overtime earnings5 or (2) including items within an employee’s earnings that were previously excluded from the employee’s regular rate of pay, such as gifts, discretionary bonuses, expense reimbursements, or employer contributions to employee benefit plans.

In another opinion, the employees are given 30-minute unpaid lunch breaks where they are relieved of their job duties.  They apparently have a break room which they may use for such purpose.  However, it takes at least 5-10 minutes to get through security to leave the building and walk to the parking lot, and then another 10 minutes to get back through security and return from the parking lot, leaving little, if any time, to travel to nearby restaurants for lunch.   The DOL first observed that employers are not required by the FLSA to provide meal or rest breaks to adults.   Meal breaks need not be compensated, but they must be bona fide breaks from work. Typically, thirty minutes or more is sufficient to constitute a bona fide meal break.  The DOL has since at least 2004 indicated that employers can prohibit employees from leaving the premises during their meal breaks without having to compensate employees for the meal breaks. 

The Act does not require absolute freedom for a break to be bona fide and non-compensable. An employer may place certain limitations or conditions upon a bona fide meal period without having to compensate employees for such time, and courts have agreed that employees need not be permitted to leave the premises to receive a bona fide meal period. For example, in Ruffin v. MotorCity Casino, 775 F.3d 807 (6th Cir. 2015), the Sixth Circuit ruled that meal breaks for casino security guards were not compensable under the FLSA because even though they were not permitted to leave the premises and were required to monitor their radios, they were otherwise free to eat and socialize.

In the final letter, the employer had a practice of permitting employees to clock in or out up to seven minutes before or after their shift because of potential wait times at the time clock so that they would not be assessed with tardies or unauthorized overtime.  However, the employer also had a practice of rounding those employees’ work hours to the nearest shift.  For instance, if an employee clocked in at 6:53 for a 7:00 shift, he or she would only be credited with having worked at 7:00.     Similarly, if the employee clocked out at 7:07 when the shift ended at 7:00, the time would be rounded down to 7:00. However, and importantly, if an employee clocked in late or clocked out early, the employer did NOT indicate that it would round down to the nearest shift.  The employer admitted that some employees sometimes immediately began engaging in integral and indispensable pre-shift activities, even when they clocked in early.   The DOL did not think that the de minimis doctrine applied because the employer was capable of administratively capturing this pre-shift work and the rounding practice was not neutral (i.e., it always benefitted the employer).  “The de minimis doctrine “applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities.”  Further, “’[w]hether time is de minimis is a fact-specific analysis, considering the practical administrative difficulty of recording the time, the aggregate amount of compensable time involved, and the regularity with which the work occurs.”

The Department’s regulations explain that employers may practice time rounding, but only under specific conditions. Under 29 C.F.R. § 785.48, employers may round employee time to the nearest fraction of an hour (such as the nearest 5 minutes, 6 minutes, or quarter-hour). This practice, however, is only acceptable if it “will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” 29 C.F.R. § 785.48(b). This means a rounding practice must both be neutral on its face and average out over time so it does not consistently favor the employer. . . .

When evaluating rounding practices to apply these principles, courts examine the aggregate impact over a period of time. While fluctuation from pay period to pay period is to be expected, a neutral rounding practice must “average out in the long term.” Corbin, 821 F.3d at 1077. For example, an employer’s rounding practices were found to be permissible where the pay records showed that “sometimes [the employee] gained minutes and compensation, and sometimes [the employee] lost minutes and compensation,” and the net difference between hours worked and hours compensated amounted to only 3 minutes and $15 over about a year. Id. at 1079. In contrast, an appeals court reversed a lower court’s conclusion that an employer’s practice was neutrally applied when evidence showed that its practices cost roughly 13,000 employees approximately 74,000 hours of uncompensated time over a 6-year period. Houston, 76 F.4th at 1152. Similarly, another court found an employer’s rounding policy was likely not neutrally applied when evidence showed that it favored the employer 94 percent of the time. Aguilar, 948 F.3d at 1288.

 . . .

To the extent that each day, employees are performing compensable work prior to their paid shifts commencing, such work is unlikely to be de minimis. In general, as noted above, “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed  . . . .

Conversely, to the extent that pre-shift compensable work is irregular, the practical administrative difficulty of recording the time may justify treating it as de minimis. Although the employer has a timekeeping system that is capable of documenting the time of arrival and departure, we cannot definitively say, based on the information provided, whether it is administratively feasible for the employer to record the actual time each employee performs their first principal activity—thus beginning their compensable workday—as opposed to engaging in personal activities such as getting coffee, socializing, checking phones, storing personal belongings, or simply waiting for their shift to start. Given, as noted above, the large number of hospital employees and the likely differences between the extent to which they are, or are not, on a consistent basis performing principal activities between clocking in and the formal start to their shift, we are unable to conclude that the time is—or is not—de minimis. . . .

Employers, including the hospital at issue here, should nonetheless be particularly careful about how and to what extent they apply the de minimis doctrine. Particularly given the technological advances that have made it possible for employers to track employees’ work time with increasing precision, employers should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work with any degree of regularity.

In this case, the employer’s rounding always seemed to reduce the employees’ pay and was always in favor of the employer in rounding up or down. Thus, “the critical question under 29 C.F.R. § 785.48(b) is whether a rounding practice, evaluated over a period of time, is facially neutral and operates neutrally such that it does not systematically undercompensate employees for hours worked.”   The DOL could not definitely determine whether the employer was complying or not with the FLSA because of missing factual realities:

We note initially that a rounding policy for clock-in and clock-out time only affects the calculation of hours worked to the extent that employees are performing compensable work between the clock in/out time and the rounded time. As noted above, clocking in or out, by itself, is generally not considered compensable work. Likewise, the time between clocking in and beginning principal activities, and between completing principal activities and clocking out, is also not compensable. . . .

As to the beginning of the day, if employees are, in fact, performing compensable work—such as respiratory therapists receiving handoff reports—after clocking in but before their paid shifts, then based strictly on the information provided, the hospital’s rounding policy is not neutral pursuant to 29 C.F.R. § 785.48(b) because it both is not facially neutral and only ever benefits the employer without ever benefiting the employee. According to the facts presented, the employer’s only rounding practice is to round early check-ins to the scheduled shift time. As a result, employees  who perform compensable work during the up-to-7-minute early check-in period are always uncompensated for that time and are not afforded a chance for over-compensation to average that time. Accordingly, under these facts, the hospital’s rounding practice is inconsistent with section 785.48(b) and would result in a failure to properly record, as well as potentially to properly compensate for, all hours worked. If, however, the hospital’s rounding practice is facially neutral and operates such that employees can and actually do benefit from rounding in other circumstances—for example, if employees who clock in up to 7 minutes late are nonetheless credited with starting at their scheduled time and that practice averages out over time to offset any work time lost due to the rounding of early check-ins to the scheduled shift time—then the policy would likely comply with section 785.48(b).

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.

Supreme Court Reverses Decision Based on Arguments Never Raised or Briefed by the Parties as Inconsistent with the Adversarial System of Justice

This morning, the Supreme Court issued a per curiam decision of interest to mostly attorneys. Margolin v. Director of the Executive Office for Immigration Review, No. 25-2067 (5-26-26).    I bring it up because this has happened to most of us at one time or another and is extremely frustrating to explain to a client how we get ambushed by a court on issues never raised by our opponent.  The Court reversed the  Fourth Circuit (for the second time in a year) for reversing a judgment on grounds not raised or briefed by any of the parties in the case and not giving the parties an opportunity to file supplemental briefs on the issue.  “Federal courts adhere to the principle of party presentation.  . . .  That principle—the ‘rule that points not argued will not be considered’—distinguishes our adversarial system of justice from an inquisitorial one.  . . .  Because courts are ‘essentially passive instruments of government,’ we rely on the parties to ‘frame the issues for decision’ and decide ‘only the questions presented.’”  In other words, “[f]ederal courts are not ‘roving commissions,’  . . . licensed to ‘sally forth each day looking for wrongs to right. . . ’” 

The Fourth Circuit violated the party presentation principle when it decided “a case different from the one [respondent] advanced.”  . . .  As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB.  . . . . The parties thus confined their arguments to the narrow question whether respondent’s claims were, in fact, covered. Unsatisfied with rejecting respondent’s arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent’s argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.  . . .  That “‘drasti[c]’” departure from the principle of party presentation “‘constitute[d] an abuse of discretion.’”  . .  .

 Federal courts are not “roving commissions,”  . . . licensed to “‘sally forth each day looking for wrongs to right,’”  . . .

(bolding added for emphasis).

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.

Sixth Circuit Affirms Employer's Summary Judgment on FMLA Interference and Retaliation Claims Where Employee Was on Last Chance Agreement and Never Sought Medical Treatment

Last week, the Sixth Circuit affirmed an employer’s summary judgment on FMLA interference and retaliation claims.  Paris v. McAllister Machinery Co., Inc., No. 25-1726 (6^th Cir. 5-14-26).  The employee could not prevail on the FMLA interference claim because he could not show that he suffered a serious health condition with hospitalization or consulting with a medical provider about his mental distress.   While he could show that his inquiries about taking FMLA leave for his mental distress were protected activities, and were temporally proximate to his termination less than a month later, he could not show that his termination was pretextual when he was already on a Last Chance Agreement and his violation of any policies justified his termination.   Temporal proximity could not satisfy his need to prove the employer’s explanation was pretextual. 

According to the Court’s opinion, the plaintiff employee had a long history of performance problems and was ultimately placed on a Last Chance Agreement in October 2018 to avoid being immediately terminated.  He was then told by his union steward in early December  that he was about to be fired.  His supervisor a few weeks later confronted him about not wearing steel-toes shoes during his shift. He denied the allegation, which prompted the supervisor to try and stomp on his foot to prove his point.  Upset, he called HR and said he needed time off for anxiety, anguish and mental distress.  They discussed him applying for FMLA and he asked for the forms so that he could do so.  However, despite the passage of a month between this event and his termination, he never sought medical care or treatment for his distress and he never submitted a formal request for FMLA leave after receiving the forms upon request.   He was then fired in mid-January 2019 for a variety of infractions over the last few months, including not wearing required protective clothing, overcharging customers,  and general inability to follow proper procedures.

The Court agreed that he could not prevail on an FMLA interference claim because he had never sought medical treatment of any kind for his mental anguish.   Without such treatment or medical consultation, he could not prove that he had a serious health condition and was entitled to take FMLA leave.  No jury could rule in his favor on such a claim, entitling the employer to summary judgment as a matter of law.

The Court also agreed that he could not prevail on his FMLA retaliation claim, but for different reasons than the trial court.  The Court agreed that his inquiries about taking FMLA leave and requesting the FMLA forms constituted protected conduct and that his termination approximately a month later could support a causal connection between the two (i.e., temporal proximity).  However, he could not show that the employer’s explanation for his termination – poor performance and violation of company policy in violation of his Last Chance Agreement – was pretextual.  He had been told by the union before his protected conduct that he was about to be fired for violating the Last Chance Agreement. The employer specified a number of incidents and violations which took place in the few months before his termination that violated his Last Chance Agreement.  “We agree with [the employer] that a single violation of [its] policies following [the plaintiff’s] entry into the LCA would have constituted a valid, nondiscriminatory reason for his termination.”

[He] then failed to carry the burden of showing that any of [the employer’s] reasons were “in reality a pretext to mask discrimination.”  . . . . He failed to do so because he provided no evidence that [its] termination was pretextual.  . . .  And temporal proximity alone cannot support a showing of pretext.  . . .  There is no genuine issue of material fact as to whether [its] termination of [his] employment was pretextual, and [it] was entitled to judgment as a matter of law on [his] FMLA retaliation claim.

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.

Sixth Circuit Does Not Require Clear and Convincing Evidence for Each Preliminary Injunction Element Unless Required by Statute

Yesterday, the Sixth Circuit reversed the denial of a preliminary injunction sought by an employer against a former employee who allegedly absconded with trade secret information for the benefit of his new employer, a competitor. PCC Airfoils LLC v. Daughterty, No. 25-3794 (6h Cir. 5-19-26).    The Court found that the employer need not prove each element of its claim by clear and convincing evidence in order to obtain preliminary injunctive relief.  “Rather than requiring clear and convincing evidence for each preliminary injunction factor, a court should consider all four factors to determine whether, taken together, they clearly weigh in favor of granting injunctive relief.”

According to the Court’s opinion,  a long time employee who had designed turbine airfoils was promoted to director in 2020 and then demoted a year later during a restructuring.  Frustrated, he later resigned to become a director at a competitor.  He did not have a non-compete agreement.  After his resignation, the employer discovered that he had prepared to print four confidential documents two days before leaving and that he had not left those documents in his office upon his departure.    The employer alleged that he “printed several documents containing trade secrets on his way out the door,”  but it could not prove that he actually printed them.   It sued him and his new employer to prevent him from disclosing trade secrets or working on similar products for the competitor.   The trial court denied the requested injunction on the grounds that the employer had failed to prove each element by clear and convincing evidence.

When faced with requests for a preliminary injunction, district courts consider four factors: (1) the plaintiff’s likelihood of success on the merits; (2) the risk of irreparable harm to the plaintiff in the absence of an injunction; (3) the risk that an injunction will harm others; and (4) the broader public interest. . . .

 . . . Courts, generally speaking, should engage with all four factors in a sliding-scale inquiry. A strong showing as to one factor may “outweigh[]” a weaker showing as to another factor. Winter, 555 U.S. at 23–24. After weighing the four factors against one another, a court may grant a preliminary injunction only if a plaintiff has made “a clear showing that [it] is entitled to such relief.” Id. at 22. All of this means that a movant does not need to establish a quantum of proof, whether a preponderance or clear and convincing evidence, with respect to each factor to be eligible for preliminary relief.

Two qualifications exist. If the plaintiff has “no likelihood of success on the merits,” there is nothing left to balance and the plaintiff’s request for a preliminary injunction must fail regardless of its showing on the other factors. Higuchi Int’l Corp. v. Autoliv ASP, Inc., 103 F.4th 400, 409 (6th Cir. 2024) (quotation omitted). Likewise, a court must reject a plaintiff’s request for a preliminary injunction if it fails to show any risk of irreparable injury.

Measured by these requirements, the district court erred in requiring [the employer] to establish “clear and convincing evidence” with respect to each of the four factors in order to be eligible for preliminary relief.  . . .  While a court should “consider” all four factors, it is a sliding-scale inquiry that turns “as much on the equities of a given case as the substance of the legal issues it presents.”  . . .  The necessary showing for any one factor turns on the strength of the plaintiff’s showings for the other factors. Because generalizations are dangerous when it comes to equity, and because the Supreme Court has cautioned that the clear and convincing evidence standard applies in only a few rare circumstances, . . .  a court may not require every plaintiff to meet a heightened standard of proof for every preliminary injunction factor to qualify for injunctive relief. The district court erred in reaching a contrary conclusion.

 . . . .

 . . . Requiring a “clear showing” to obtain a preliminary injunction—because it is an extraordinary form of relief—is not the same thing as requiring “clear and convincing evidence” to establish each of the four factors to establish eligibility for this relief.

Instead of creating a heightened standard of evidentiary proof for each factor individually, the “clear showing” phrase clarifies that, on balance, the four preliminary injunction factors must clearly weigh in the plaintiff’s favor to qualify for injunctive relief.

The Court agreed that an unpublished Sixth Circuit had applied the clear and convincing evidence standard to all four factors, but was not bound by that precedents or later decisions that relief on it.  The Court also agreed that Ohio state court apply the clear and convincing standard to all four elements, but the federal court procedural rules apply to claims brought in federal court, even if the substantive law is governed by Ohio law.  Further, there was no substantive statute requiring use of a higher standard of proof.

Ohio’s rules of equity generally apply the clear and convincing evidence standard to the four preliminary injunction factors.  . . .  Because one of his claims seeks relief under an Ohio statute, [the defendant employee] contends that Ohio’s preliminary injunction rules should apply. But a federal court applies federal procedural rules, even when deciding cases under state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The preliminary injunction inquiry falls on the procedural side of the line,  . . . requiring us to apply federal, not Ohio, rules. And we treat the preliminary injunction considerations as equitable factors to be weighed, not elements to be proved by clear and convincing evidence.

 . . . .

The clear and convincing evidence standard thus had no role to play in this case. Indeed, as it pertains to the plaintiff’s likelihood of success on the merits, it seems particularly odd to require the plaintiff to prove its case by a higher standard than will be required at trial even before the parties have had the benefit of discovery.  . . .  . . . .

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.