Posts Tagged ‘Sixth Circuit’

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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Employee’s Failure to Report Overtime Thwarts Her FLSA Claim

In a split decision, the Sixth Circuit recently held that a nurse’s failure to follow her employer’s procedures for reporting time spent working during an unpaid meal break was fatal to her Fair Labor Standards Act (“FLSA”) claim.  In White v. Baptist Mem’l Health Care Corp., the majority of the court found that the trial court’s dismissal of the employee’s case before trial was proper because her employer could not have known or had reason to know that the employee was not receiving pay for missed meal breaks as the employee was not using the employer’s exception log to record the extra time that she worked.  Additionally, the employee offered no evidence that the employer discouraged employees from reporting meal break work or that it was otherwise notified that employees were not reporting such work.

By way of background, before being hired, the nurse signed a document stating that she understood that unpaid meal breaks would be deducted from her paycheck, but that any time spent working during meal breaks had to be noted in an exception log in order for the nurse to be paid for that time.  The nurse acknowledged that in instances when she and her entire nursing unit reported working during a meal break, the hospital compensated her for that time.  However, the nurse also alleged that there were instances in which the hospital did not pay her when she individually worked through a meal break and reported it on the log.  Although, the nurse notified supervisors about missed meal breaks, she never complained to supervisors that she was being unpaid when she worked through her meal breaks–a distinction the Sixth Circuit found quite important.  Eventually the employee stopped using the exception log because she claimed that reporting missed meal breaks just seemed like an “uphill battle.”

Given these facts and circumstances, the Sixth Circuit, relying on case law from the Eighth, Fifth, and Ninth circuits, said that an employer that establishes a “reasonable process” allowing employees to report unpaid work time will not be liable for nonpayment where an employee does not follow that process because when an employee fails to follow the reasonable time reporting procedure, she prevents the employer from knowing its obligations to compensate the employee and thwarts the employer’s ability to comply with the FLSA.  Thus, the court found that there was no way for the hospital to have known that the employee was not being compensated for missing her meal breaks.  As such, the court held that the employee’s claim failed.

In so holding, the Sixth Circuit distinguished this case from cases where employers prevented employees from reporting overtime or where the employers were otherwise notified of the employee’s unreported work.  In this case, however, the employee presented no evidence that the employer discouraged her or other employees from reporting on exception logs the time they spent working during meal breaks, or that the hospital was otherwise notified of the unreported work.

Interestingly, the dissenting opinion notes that an employer violates the FLSA if it had actual or constructive knowledge that an employee worked without pay regardless of whether the employee has properly reported the time.  The judge writing the dissenting opinion felt that the employee had raised a triable issue regarding whether the employer had actual knowledge because, among other things, the supervisors knew the employee was working through lunch and complaining about it, and should have responded to the employee’s complaints by asking her to make sure she signed the exception log.  As such, the judge authoring the dissenting opinion felt that a reasonable jury could view such acts as supervisor pressure for the nurse not to report her missed breaks, which would point to constructive knowledge of unpaid time.

Lessons for Employers:  There are several things that employers should take away from this case.  First, employers should establish a reasonable process for employees to report unpaid work time.  Second, even though the court ruled in favor of the employer, it was a split decision with the dissent indicating that the employer should have responded to the employee’s complaints about working through her meal breaks by asking the employee to make sure that she followed the reporting procedure.  Accordingly, to be on the safe side, employers should train their supervisors to provide such a response in the event that there are complaints about working through breaks or working overtime and, to be be on the extra safe side, to record such exchanges in writing.

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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