Posts Tagged ‘retaliation’

In the case of Jaszcyszyn v. Advantage Health Physician Network, the Sixth Circuit recently sided with an employer that terminated an employee after it caught her partying at a Polish heritage festival while she was supposedly too disabled to work.  It’s a case of Facebook strikes again.  The termination was based upon the employer’s belief that the employee was engaging in FMLA fraud.

The whole ordeal came to the employer’s attention after the partying employee was spotted by her Facebook friend/coworker partying it up while her colleagues were at the office covering for her.  Naturally, the coworker took the pictures to a supervisor.

The employer gave the employee an opportunity  to explain the discrepancy between her claim of complete incapacitation and her partying behavior in the photos.  Guess what?  The employee didn’t really have a response, was silent, or claimed that she was in pain at the festival and just not showing it.  When the employee repeatedly failed to respond or to provide a legitimate justification for her action, the employer terminated her.  Following the employee’s termination, someone in HR completed a report that selected “absenteeism/lateness” from a list of six possible reasons for discharge.

The employee filed a lawsuit in the U.S. District Court for the Western District of Michigan alleging that she was fired in violation of the FMLA.  Her claims included a count for interference with her right to take leave and a count for retaliation for taking leave.  The trial court dismissed the employees’ claim before it went to trial and the employee appealed to the Sixth Circuit.

On appeal, the court found that the employer had not interfered with the employee’s right to take FMLA leave as it had granted her requests for FMLA leave in full.  As for the employee’s retaliation claim, the court found that the employee offered little or no evidence linking her termination to activity protected by the FMLA.  Moreover, even though the person in HR had checked “absenteeism” on the form rather than “fraud” the court was not persuaded that the employee’s mere use of leave was the reason for her termination.  The court specifically said that selecting absenteeism on a standardized form did not establish that the employer’s explanation of the firing was a pretext for unlawful retaliation.  Rather, the court found that the employee never refuted the employer’s honest belief that the employee’s partying at the Polish heritage festival was inconsistent with her claims of disability.  Therefore, the employee could not show that the employers legitimate reasons for terminating the employee, i.e., her fraudulent behavior, was a pretext.

Employer Tip:  Employers should be aware of the sensitive issues that surround terminating employees while they are on FMLA leave.  While this case ended well for the employer, the employee might have had less fodder for her lawsuit if the HR person had not checked “absenteeism”, but had rather written “fraud” on the form.  It is recommended that you consult with an attorney before making such decisions.  The attorneys at Harmon & Davies are here to advise employers on all Employment and Labor Law matters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Not too long ago, the Patient Protection and Affordable Care Act (“PPACA”) amended the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable beak time for employees to express breast milk for nursing children and I immediately envisioned a slew of lawsuits related to this new requirement.  Under the PPACA, employers are required to provide employees with a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.  For many employers this is easier said than done as many work environments present obvious challenges.  For example, where do employees pump when they are at construction sites, traveling in a car (particularly with a sales partner), or on a plane (think pilots and flight attendants)?

In Salz v. Casey’s Marketing Company, an employee working at a convenience store (a work environment not particularly conducive to pumping) returned from maternity leave and requested a private and secure place where she could express milk.   The employer allowed the employee to use a store office.  However, while expressing milk in the store office, the employee discovered that there was a functioning video camera in the room.  The employee alleged that she had never been told about the camera and she conveyed her discomfort about its presence.  According to the employee, the company failed to meaningfully respond to her complaint about the camera.  The company allegedly refused to disable the camera and simply told the employee to place a plastic bag over the video camera while she was pumping milk.

Thereafter, the employee was unable to relax with the camera in the office and experienced reduced milk production.  The employee alleged that when she complained, the company retaliated against her by reprimanding her for failing to fill an ice cream machine, failing to put hot dogs on the grill, and leaving dirty dishes.

Eventually the employee quit her job and filed a lawsuit in Iowa state court alleging that the company had denied her the right to express her milk in a secure and private place as required by PPCA’s amendment to the FLSA, that the company violated her common law right to privacy under Iowa law by installing and operating a camera in a room where the company knew she was expressing milk, and she asserted the company constructively discharged her in violation of the FLSA in retaliation for her complaints.  (Note: even though she quit, the law sometimes deems a company to have discharged an employee where it makes life for the employee so bad that the employee essentially has no other option but to quit).

The case was removed to federal court where the judge dismissed the employee’s claims for lactation rights on the basis that the PPACA did not create any private right of action against an employer that violates the requirement.  Rather, the PPACA gave the employee the right to file a complaint with the Labor Department, but not to initiate her own lawsuit.

However, the court held that the employee could pursue her claim for retaliation because the FLSA protected the employee from being retaliated against for complaining about the lack of an adequate place to express milk, noting that once an employer discriminates or discharges an employee in relation to an employee’s complaint about the employer’s express breast feeding policy, they have violated the FLSA.

Lesson for Employers:  Although the court said that an employee may not pursue a private right of action for being denied a secure and private place in which to express breast milk, Employers should take this issue seriously.  This includes instituting an express breast feeding policy, providing employees with a secure and private place in which to express milk, and taking seriously any complaints from employees about the adequacy of the designated space.


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