Employment Law Update

Michael Patrick O’Brien
August 20, 2012 | COMMENTS

From time-to-time I get calls from clients wondering if they have to allow the non-employee parent of an employee to attend a meeting (e.g. a disciplinary meeting) the employer wants to have with the employee. Generally, you can say no to these “helicopter parents” at work and insist that you will meet with your employee alone, without parental involvement. Of course, there are some circumstances where you might want to include a parent in a meeting or discussion. For example if the employee has been injured, the parent may help the employee understand and function at the meeting.

An employer is also required to accept Family and Medical Leave Act (FMLA) communications/notices from a family member, such as a parent, if the employee is unable to communicate due to his/her own medical condition. Click here to read an interesting article from HR Hero on some of the pros/cons of helicopter parent involvement in the workplace: http://www.hrhero.com/hl/articles/2012/07/26/helicopter-parents-of-young-employees-soaring-into-the-workplace/.

DOL Publishes Plain Language Guide to FMLA

The United States Department of Labor (DOL) recently published a ‘plain language’ guide to the FMLA for employees. According to DOL’s press release accompanying the guide, “The Employee Guide includes three easy-to-follow and informative flow charts that detail how FMLA coverage and eligibility are determined, maps out the FMLA leave process and how the FMLA medical certification process works. It addresses the FMLA definition of “son or daughter” including in loco parentis relationships even if the employee has no biological or legal relationship to the child, as provided in the Department's June 2010 FMLA Administrator Interpretation. It also provides detailed information on how an employee can file an FMLA complaint with the WHD if they believe their FMLA rights have been violated.” You can access the guide here: http://www.dol.gov/whd/fmla/employeeguide.pdf.

Last Chance Agreement Overreaches and Fails Health-Care Reform

Employer frequently will use a last chance agreement (LCA) with an employee who has failed to come to work or misbehaved at work due to abuse of drugs or alcohol. Typically, in an LCA, an employee will admit to the problem, agree he/she could have been fired for the misconduct, and submits to rehab, testing and a stipulation that any further problems will lead to discharge. A recent court decision shows how an LCA can go too far. The case, a ruling in favor of an employee, involved an LCA that also required the employee to waive any claims he might bring under any of the state or federal antidiscrimination laws. The employee later revoked the waiver and the employer fired him. The court ruled that the employer has retaliated against the employee. The morale of the story is don’t condition employment on the waiver of statutory rights...or as the court explained it: "[An employer's] requirement that [an employee] be subject to an agreement restraining his statutory rights to avoid termination is an unlawful employment practice."

Disability Claims on the Rise

Perhaps confirming predictions of the impact of the Americans with Disabilities Act Amendments Act (ADAAA), recent statistics from the Equal Employment Opportunity Commission (EEOC) show that disability claims are on the rise. EEOC records show that disability charges rose for the second straight year in 2011 and now are one fourth of the EEOC’s annual charges. Monies recovered by the EEOC in disability cases also have increased by over 35% from past years. The new ADAAA focuses more on what an employer does to help an employee with a possible disability than on the technical issues of whether the person is actually disabled under the legal terms of the law. Thus, if it is at all a close question, an employer probably should err on the side of caution.  This means you often will assume a condition is a disability and focus on engaging in the interactive process with the employee to see if the employer can reasonably accommodate the condition.

Big Settlements in EEOC Cases

There is news of some recent large settlements by employers on claims involving the EEOC. A large national trucking company has agreed to pay a total of $21 million to settle multiple claims that the company allowing racial harassment to occur in certain of its Chicago offices. The plaintiffs, black employees, had claimed they were subjected to racist comments and graffiti, nooses, and harsher discipline than other employees. A national appliance maker has agreed to pay $1 million to settle race and sex harassment claims in Tennessee. The EEOC had filed the lawsuit based on claims that a white male employee had harassed and physically attacked a black female employee. Finally, a Long Island employer has agreed to pay money to and reinstate a 71-year-old life guard at the county pool who sued for age bias after he was fired for failing a swim test. One might think that failing a swim test would be a good reason to fire a lifeguard; however, it turns out the employer had allowed younger lifeguards who also failed the swim test to keep working. Hmmm . . . even though we are entering the hot summer dog days of August, with life guards failing swim tests, it may be time to stay out of the water altogether when on Long Island!

Michael Patrick O'Brien is an employment attorney with Utah law firm of Jones Waldo Holbrook & McDonough (www.joneswaldo.com). He also serves as the Legal and Legislative Director for Utah’s Society for Human Resource Management chapter. Contact him at 801-534-7315 or mobrien@joneswaldo.com.