Defending Against FMLA Litigation? Honesty (or Something Close to it) is an Employer's Best Policy

Honesty & Crossing Fingers.jpgEmployers can face liability under the Family Medical Leave Act either by interfering with FMLA rights or by retaliating against an employee exercising FMLA rights. Under either theory, however, one of the best tools available to employers in defending FMLA claims is what is referred to as the "honest belief" defense.

For this reason, it is important for employers and their HR professionals to be in a position, if necessary, to use this defense in responding to FMLA lawsuits. 

The Honest Defense Belief in FMLA Litigation

Essentially under the honest belief defense, if an employer terminates an employee based on an honest, good faith belief that the employee engaged in wrongdoing, this belief will be sufficient to defeat an employee’s claims of interference and retaliation under the FMLA. 

The honest belief defense is extremely favorable to employers. This is because the employer does not have to prove that the wrongdoing actually occurred. Building on this point, courts hearing FMLA retaliation or interference claims will give significant deference to the employer asserting the honest belief defense. 

The Honest Belief Defense is a Potent Defense against FMLA Lawsuits  

The benefit of being able to rely upon the "honest belief" defense in FMLA litigation is illustrated by two cases decided in the federal sixth circuit court of appeals - the federal jurisdiction that includes Michigan.

In Seeger v. Cincinnati Bell Telephone Co. (2012), the defendant employer terminated the plaintiff employee for disability fraud following an FMLA leave. The employer asserted that the termination occurred after the employee was observed by co-workers walking several blocks at an Oktoberfest celebration while the employee was on leave because of severe back pain. This back pain supposedly prevented him from standing for more than 30 minutes at a time. In rejecting the employee's arguments as to why the honest belief defense should not apply, the court responded, "Seeger’s argument and presentation of competing facts is misdirected because it does not question [the employer's] investigatory process. The determinative question is not whether Seeger actually committed fraud, but whether [the employer] reasonably and honestly believed that he did.” 

The case of Jaszczyszyn v. Advantage Health Physician Network (2012) involved the honest defense rule and social media in a FMLA lawsuit. In this case, the plaintiff's co-workers were “friends” with her on Facebook. These "friends" showed management pictures of the plaintiff employee drinking at a local festival at a time when she was supposed to be convalescing for several weeks due to worsening pain from a back injury. Following an investigation, the employer terminated the plaintiff for fraud. Similar to the Seeger case, the court applied the “honest belief” defense in rejecting the plaintiff’s FMLA claim reasoning that the plaintiff did not refute the employer’s honest belief that her conduct in the photos was inconsistent with her claims of total disability.

The honest defense rule is not an automatic "silver bullet" against FMLA violations; An employee may produce evidence that shows that the employer’s decisional process was not worthy of credence or other circumstances prevent applying the honest belief rule. And not all judges are equally willing to "rubber-stamp" an employer's assertion of the "honest belief" rule because of the potential for an employer having a less than honest belief of an employee's misconduct.

Consider for example, Judge Tarnow, a well-respected judge, wrote a stinging dissent in the Seeger case explaining why the honest belief rule should not apply:  

... the overwhelming weight of evidence supports [the employee's] contention that [the employer's] investigation was so poor and one-sided as to be 'unworthy of credence' and thus not sufficient to satisfy an 'honest belief.'

For this reason, an employer faced with issues intersecting with FMLA leave and employee discipline should consult with an experienced employment attorney to make sure the FMLA is complied with as well as to take steps to maximize the opportunity to assert the honest belief rule in the event the employer is later sued for alleged FMLA violations. 

For more information about the Family Medical Leave Act, as well as responding to a violation of FMLA rights, contact Jason Shinn. Since 2001, Mr. Shinn's legal experience as an employment attorney includes addressing FMLA compliance and litigation issues, as well as the full range of federal and Michigan employment law issues.

Clarification of FMLA Leave for Children with a Disability

YellowQuestionMark.jpgThe Department of Labor's Wage and Hour Division's acting Deputy Administrator issued an Administrator's Interpretation (2013-1) that is intended to clarify a question employers and employees had under the Family Medical Leave Act (FMLA) and involving an employee seeking leave to care for an adult son or daughter with a disability.

Specifically, under the January 14, 2013 Interpretation, the date of onset of the disability is irrelevant to the definition of "son or daughter" under the FMLA. Prior to this Interpretation, there was uncertainty as to the FMLA's application where a disability does not end when a child turns 18 and persons over 18 may have the same need for care as those under 18. The Interpretation also provides guidance on the application of the ADAAA to the FMLA, and FMLA protections for parents of wounded military service members.

Overview of the FMLA

Under the FMLA, an employee is entitled to take up to 12 weeks of leave from work in a 12-month period to care for a son or daughter who is an adult (18 years of age or over), if the son or daughter:

  • Has a disability as defined by the ADA;
  • Is incapable of self-care due to that disability; 
  • Has a serious health condition; or
  • Is in need of care due to the serious health condition.

The FMLA, however, and its regulations do not address the question of whether it is relevant to the definition of "son or daughter" under the FMLA if the disability begins on or after the son or daughter turns 18 years old. Because the FMLA provides parental leave rights to care for a minor child who has a serious health condition, without regard to whether the child has a disability, this question is not relevant to children under the age of 18. 

The Take-Away for Employers

The January 14, 2013 Interpretation is quite extensive and it also provides guidance on the application of the ADAAA to the FMLA, and FMLA protections for parents of wounded military service members. Accordingly, employers or their HR professionals should review it with their employment attorneys as may be needed. 

But what employers and employees need to understand with respect to FMLA issues involving children is that under the January 14, 2013 Administrator's Interpretation, the date of onset of the disability is irrelevant to the definition of "son or daughter" under the FMLA.

For more information on the FMLA or other federal or Michigan employment legal issues, contact Jason M. Shinn, a Michigan employment lawyer who regularly represents companies and individuals in addressing employment legal matters.

Understanding Family Medical Leave Act Claims - One Statute, Two Possible Claims

Fog & Uncertainty.jpgCompanies understandably find employment law to be simultaneously chaotic, complicated, and confusing. And this state of affair certainly applies to the Family Medical Leave Act, (FMLA). This is especially true when it comes to the two distinct type of claims that may be brought under the FMLA and the consequences each type of FMLA claim has on evidentiary issues for employees and employers.  

The Two Types of Claims that Can be Brought under the FMLA

FMLA violations can be broken down to essentially two categories:  First, under the FMLA it is unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the Act]." 29 U.S.C. § 2615(a)(1).

Second, it is also unlawful for an employer under the FMLA to "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the Act]." 29 U.S.C. § 2615(a)(2).

Accordingly, employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies. See 29 C.F.R. § 825.207(a). Follow this link for more background about the FMLA

These two statutory provisions give rise to two distinct claims against employers in the Sixth Circuit (the federal jurisdiction applicable to Michigan employers). Specifically, the Sixth Circuit recognizes two discrete theories of recovery when it comes to FMLA lawsuits:

  1. The "interference" or "entitlement" theory arising from § 2615(a)(1); and 
  2. The "retaliation" or "discrimination" theory arising from § 2615(a)(2). 

Different Evidentiary Issues Arise Depending upon the FMLA Claim

For employers, it is important to understand which category of FMLA violation is in play. One reason for making this determination is because the applicable evidentiary proofs are different for interference and retaliation claims; The primary distinction being that an employer's intent is not considered in an interference claim.

The reason for the different evidentiary standards because an interference claim is based on an employer's interference with the FMLA-created right to medical leave or to reinstatement following the leave. Thus, a violation has occurred regardless of the intent of the employer.

In contrast, the central issue raised by FMLA retaliation claims is whether the employer took the adverse action because of a prohibited reason or for  a legitimate nondiscriminatory reason. Thus, an employer's motive is always relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.

Take-aways for Employers

Even if employers don't always know the answers to FMLA or other employment law questions, it is important for employers to understand - at a minimum - enough to ask the right questions (and then follow up to make sure to get the right answer). For the FMLA, the starting point for this understanding is determining which claim is being made - a retaliation claim or interference claim. For more information about complying with the Family Medical Leave Act, contact Jason Shinn


Can Employers Be Sued for Restricting the use of Certain Doctors for Disability Certifications?

Doctor.jpgIt is never easy being an employer when it comes to issues at the intersection of employees and medical issues. But at least many of these issues are based on statutes and regulations, which (more or less) outline an employer's responsibilities. 

But a recently dismissed claim against an employer by a doctor and his medical practice offers a reminder that lawsuits arising out of employee medical issues are only limited by creativity and imagination of lawyers and their clients.

Specifically, an employer, GM, was sued for claims of defamation, business defamation, and tortious interference with a business relationship against a medical practice and its doctor. These claims arose after the employer advised its employees that it would no longer accept disability certifications or excused absences from both the doctor and the clinic. See Athar Siddiqui, M.D. & Med. Assocs., P.C. v. GM Co. 

In this case GM, as the defendant employer, sent a "notice letter" to its employees. The letter contained a list of ten physicians and stated:

Under the provisions of the General Motors Life and Disability Benefits Program for Hourly Employees, certification from the physicians listed below will no longer be regarded as proof of disability or accepted as an excused absence by General Motors.

. . . Dr. Athar Siddiqui—Internal Medicine, Ypsilanti, MI ...

Plaintiffs (the doctor and the medical practice) demanded that GM immediately retract the letter and issue a corrective notice removing Dr. Siddiqui from the list of excluded physicians. GM refused and both and Plaintiffs filed a civil complaint, alleging defamation by implication, business defamation, and tortious interference with a business relationship.

Overview of Defamation under Michigan Law

Under Michigan law in order to make a valid defamation claim the Plaintiffs had to show: (i) A false and defamatory statement concerning the plaintiff; (ii) An unprivileged publication to a third party; (iii) Fault amounting at least to negligence on the part of the publisher; and (iv) Either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod).

GM filed a Motion to Dismiss the lawsuit asserting that Plaintiffs could not state a claim for defamation. In response, the Plaintiffs argued that they had pleaded sufficient facts to fulfill the elements of defamation by implication. Specifically they alleged:

10. The Notice imputes fraud, deceit, dishonesty or reprehensible conduct by Dr. Siddiqui in his treatment of patients and/or certification of their disabilities or excused absences.

* * *

13. The Notice threatens the addressees with the statement that "disability claims requested on or after October 1, 2010 will not be payable" if certification is provided by Dr. Siddiqui, which implies that the addressees should discontinue treatment or any further dealings with Dr. Siddiqui and/or Medical Associates.

The Court Dismisses the Defemation Claim

The Court agreed with GM and reasoned its notice letter simply stated that GM would no longer accept proof of disability or excused absences from Dr. Siddiqui and that the alleged defamatory implications of the statement—that Dr. Siddiqui was guilty of fraud, deceit, or dishonesty—were simply too tenuous to support a defamation claim. 

In reaching this conclusion, the Court noted that GM's letter contained other statements that undercut any defamation claim, including the following:

  • "Nothing in this letter otherwise changes your ability to be provided services or treatment from the above listed physicians;" 
  • "this change does not impact your ability to utilize these physicians for purposes of an FMLA leave, Workers' Compensation leave or under the terms and conditions of the GM Health Care Program for Hourly Employees." 
  • GM approved of the doctor's services and treatments for purposes of FMLA leave, for Workers' Compensation leave, and in conjunction with defendant's Health Care Program for Hourly Employees. Thus, a reasonable person reading the statements in their proper context would not conclude that defendant intended patients to discontinue their services and treatments with the doctor and the clinic because either were guilty of fraud, deceit, or dishonesty. 
  • Further, the letter noted that "[e]ven though GM will not accept certification from these physicians for the purposes of establishing an excused absence or proof of eligibility for disability benefits, GM is not suggesting that these physicians provide inadequate care."

The Take Away

It is no secret that employees, employers, and their respective lawyers all have their "go to" doctors for various situations. In this case, however, GM made a business decision to limit the use of the subject doctor and his practice and drafted a carefully worded notice letter explaining this decision. 

Depending upon the circumstances, employers have the opportunity to set some conditions and even have some involvement over an employee using a particular doctor when it comes to certain employment related issues. For example, employers are permitted to require an employee seeking leave for a serious health condition or to care for a qualifying family member with a serious health condition to submit a medical certification completed by a health care provider. 29 USC 2613(a); 29 CFR 825.305(a). And an employer who questions the validity of the health care provider’s determination may challenge that certification by requiring the employee to obtain a second opinion. 29 USC 2613(c)–(d); 29 CFR 825.307(b)(1).

But in addition to complying with applicable statutory and regulatory law, the above defamation claim is a good reminder that employers also need to take a comprehensive risk management perspective beyond just the applicable employment related statutes and regulations when setting conditions for employees' selection of medical providers.

At the end of the day, regardless of your view of the subject doctor's credentials - or lack thereof - taking a route similar to that of GM and distributing a professional, fact-based notice letter will go a long way towards avoiding a lawsuit or otherwise providing a basis for dismisal.

Taking Note of How Family and Medical Leave Act Interference Claims to be Decided

Yellow NotepadThe Sixth Circuit recently resolved an issue of uncertainty for Michigan employees and employers when it comes to analyzing Family and Medical Leave Act (FMLA) interference claims. Going forward, employees must satisfy the burden-shifting framework common to employment discrimination claims when evaluating FMLA interference claims. 

FMLA Background

The FMLA, 29 USC 2601 et seq., was originally enacted to balance the demands of the workplace while providing employees the ability to take reasonable leave for personal or family medical reasons.

Among the FMLA's statutory requirements, it imposes on employers two prohibitions to ensure that employees will not suffer an adverse employment action for taking FMLA protected leave. Specifically, under the interference provision, "[i]t shall be unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter."

Under the discrimination provision, it is unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the FMLA. Congress modeled this provision after Title VII of the Civil Rights Act, as under the Civil Rights Act an employee is protected from employer retaliation for opposing a practice protected under that act.

How FMLA Interference Claims against Michigan Employers are Decided   

In the Sixth Circuit (the Federal Jurisdiction that includes Michigan), there was no dispute that what is known as the McDonnell Douglas burden-shifting framework applied to FMLA retaliation suits (as opposed to interference claims) when the plaintiff produced indirect evidence of a causal connection between the protected activity and the adverse employment action.

Under the McDonnell Douglas burden-shifting framework a plaintiff must make out a prima facie case of discrimination by showing that (1) The employee availed herself of a protected right under the FMLA by notifying the employer of the employee's intent to take leave; (2) The employee suffered an adverse employment action; and (3) That there was a causal connection between the exercise of the employee's FMLA rights and the adverse employment action. If the employee satisfies these three requirements, the burden then shifts to the employer to proffer a legitimate, nondiscriminatory rationale for discharging the employee.

Prior to the Donald v Sybra court opinion it was unsettled (sort of) if the preceding burden-shifting framework applied to FMLA interference claims. The Donald Court resolved this issue in favor of applying the McDonnell Douglas burden-shifting framework.

Interestingly, the Court concluded that this issue had actually been decided by a prior court opinion (Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)) because that court opinion effectively adopted the McDonnell Douglas test without saying as much (under federal procedural rules, a reported panel opinion like the Grace opinion are binding on subsequent courts. See 6 Cir. R. 206(c)). 

use “[r]eported panel opinions are binding on subsequent
panels,” 6 Cir. R. 206(c),

The Take Away

From a practical standpoint, the Donald opinion is not a game changer in that employers, employees, and their attorneys are intimately familiar with the McDonnell Douglas framework, which had long been applied to FMLA retaliation suits. 

A more interesting question, however, was asked by Jon Hyman of the Ohio Employer's Law Blog of whether the McDonnell Douglas test should be scrapped entirely.

For employers, a more practical take-away from this case is that an employee may be lawfully terminated for legitimate business reasons even when FMLA leave is in play. 

Consider for example that in Donald the employee had worked for the employer for over two years. And during this time she had experienced a number of health problems that forced her to miss a substantial periods of work. But Donald was fired only after the employer suspected that she entered customer orders improperly to steal cash from her register. Thus the Court of Appeals agreed with the trial court that the employee failed to produce sufficient evidence to prove that her employer's stated reasons, cash register and order irregularities, were pretextual. Therefore, the employer did not violate the FMLA because its termination decision was based on legitimate, non-discriminatory reasons. 

Terminating an employee who has excercised FMLA rights, however, is not without risks. But by collaborating with an experienced employment lawyer, these risks can be managed in order to put the employer in the best position for successfully defending against a prospective FMLA discrimination claim.