Showing posts with label FMLA. Show all posts
Showing posts with label FMLA. Show all posts

Friday, April 20, 2018

FIFTH CIRCUIT RULES THAT THREAT OF WORKPLACE VIOLENCE TRUMPS FMLA RETALIATION CLAIM




             
An alleged threat by a former Southwest Airlines employee “that he wished he could order a black trench coat so that he could bring his shotgun to work” was enough to derail his claim that his employer terminated him in retaliation for taking intermittent leave under the Family and Medical Leave Act (“FMLA”). 


In affirming the District Court’s grant of summary judgment in favor of Southwest, the April 18, 2018 opinion by the U.S. Court of Appeals for the Fifth Circuit agreed the airline had established a legitimate non-discriminatory reason for discharging Tate Clark, and that Clark had failed to prove that the reason was pretextual, or false.

 Clark began working for Southwest in 2001 as a customer service agent, and in 2011, he applied for and was approved for intermittent leave under the FMLA for his migraine headaches. Clark’s intermittent leave continued until his discharge, and he was never denied FMLA leave during his tenure with Southwest.

The incident that resulted in his termination took place on February 25, 2015, while he worked an early morning shift alone with a female co-worker.  On February 27, 2015, the co-worker sent the following note to her supervisors:


Hi guys, I wasn’t sure if I should share this but the more I thought about it, the more it bothered me. On Wednesday night, When Tate & I were working together, he was looking at the Lands End uniform web site. There was a picture of the trench coat and I asked him if he was going to order it. He said no, but I wish they made it in black. I asked him why and he said so he could bring in his shotgun. I told him not to joke about something like that and he just sat there chuckling. I’m not necessarily afraid, but it wasn’t the first time he referred to his guns in that manner.

 After a brief investigation, Clark was suspended on March 1, 2015, and on March 9, he was terminated for violating Southwest’s Zero Tolerance Workplace Violence Policy that prohibited threatening workplace violence.  Clark subsequently filed a lawsuit in the United States District Court for the Western District of Texas, alleging that the true reason for his termination was retaliation for taking FMLA leave.

In support of his claim, Clark argued that his taking of FMLA leave on February 27, 2015 established a connection with his March 9, 2015, termination, and he cited other incidents, including a negative workplace review, that had occurred more than a year before his termination. 

In dismissing Clark’s lawsuit, the District Court indicated that while the evidence of a causal connection between Clark’s taking of FMLA leave and his termination was weak, his claim failed because Southwest had established a legitimate, non-discriminatory reason for discharging him, and Clark could not show the airline’s reason was false.  In his deposition, Clark had testified that he had been aware of Southwest’s workplace violence policy and had received training on it. He also said he had understood that it was a “zero tolerance” policy, conceding that there was “no room” “to have any sort of excuse for that.” Clark also agreed that, if he had made it, his comment about bringing in a shotgun would have violated the policy and would have been grounds for termination.





Thursday, June 9, 2016

“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings

 

Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?
 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.
Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.
Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.
Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.
In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.