Employment and Labor Insider - Legalese Is Not Spoken Here

Employers, has this ever happened to you?

An employee in a critical-but-inflexible position -- say, a customer service representative -- asks for "intermittent" leave under the Family and Medical Leave Act. If the intermittent time off is "scheduled," it's usually not too big a problem. Most employers can manage to work around a situation if they know what to expect. They may be able to hire a part-time temp to cover the times that the employee will be out, or even juggle duties to get the necessary back-up from existing staff.

Of course, those are the situations that clients never call me about. The ones I hear about are those where the employee doesn't know when he or she will need to be off. The employee (or family member) may have a chronic condition that flares up unpredictably. (Or "conveniently," you might say if you're a cynic.)

"Hey, boss -- all this multitasking has given me a migraine. My doctor says I'll need Fridays and Mondays off from now on!"

Where the absences are unpredictable, it's impossible for the employer to plan, and because the employee's position is critical, there is no way to "let things slide" until the employee is able to come back.

One solution?

One seemingly logical solution to this problem is to say to the employee, "Look, we recognize your need for FMLA leave, but we really can't handle frequent unpredictable absences in your position. So here's what we'll do. We will temporarily reassign you to another position that better accommodates recurring periods of leave. We'll leave your pay and benefits unchanged. Then, when you're able to come back to your old job and attend on a regular, predictable basis, we'll put you back in that position."

"Sounds great -- thank you! What's the new job?"

"Uh, men's room attendant. It's a non-essential position, so it will be immaterial to us whether you ever show up for work or not."

This rubs employee the wrong way, especially since she's a woman. Employee goes to U.S. Department of Labor and files a complaint. You lose, because the "temporary reassignment" option applies only if the leave is foreseeable.

"Zelda, here is your temporary office. Welcome aboard!"

A better solution?

OK, forget option 1. How about option 2: "Look, we recognize your need for FMLA leave, but we really can't handle frequent unpredictable absences in your position. So here's what we'll do. We'll have you take 'block' FMLA leave even though you really need it only intermittently. If you take it all at once, we can hire a temporary to fill in for you, and you can relax and take all the time you need when your asthma flares up on Fridays and Mondays."

"But I don't want to use up all my FMLA leave when I really only need it for Fridays and Mondays -- er -- I mean, when I really only need it when my asthma flares up."

"That's what we're willing to do. Take it or leave it."

This rubs employee the wrong way. Employee goes to Department of Labor and files a complaint. Do you win or lose?

The DOL says you lose, but a few courts have disagreed . . . or have they? In one case, the U.S. Court of Appeals for the Eighth Circuit* said that an employee cannot have a valid FMLA "interference" claim unless the employer actually denies leave to which the employee was entitled. The judge in the second case disagreed, but because she was in the Eighth Circuit state of South Dakota, she was required to follow the Eighth Circuit. The third case, from Ohio (which is in the Sixth Circuit**), involved an employee who was required to take FMLA "block" leave because she didn't qualify for light duty under the terms of the employer's policies. Arguably, this is not the same as a situation where an employer requires an employee to take "block" leave to suit its scheduling needs.

*The U.S. Court of Appeals for the Eighth Circuit hears appeals from federal courts in the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

**The U.S. Court of Appeals for the Sixth Circuit hears appeals from federal courts in the states of Kentucky, Michigan, Ohio, and Tennessee.

A recent decision from a federal court in Texas*** is more in line with the DOL position, and I'm not sure it really conflicts with these other decisions. The judge in Texas found that requiring the employee to take leave in a "block" when she didn't want to or need to, coupled with other evidence of FMLA-based discrimination, was unlawful "interference" with the employee's FMLA rights.

***Texas is in the Fifth Circuit, which also includes federal courts from the states of Louisiana and Mississippi.

The Texas case involved a critical-but-flexible position (an account executive who was allowed to telecommute), and a legitimate, bona fide "serious health condition": the employee's husband had terminal cancer. His chemotherapy appointments were on Mondays and Fridays, but presumably this was not an excuse to allow the employee (let's call her "Patti," since that is her real name) to skip out on work. Patti's husband died from his cancer, and about six weeks after Patti returned to work, she was put on a Performance Improvement Plan to improve her "sense of urgency," and even though the employer's policy called for a 90-day PIP period, she was fired less than two months later. She also allegedly caught grief for asking to take some paid time off to attend her son's sporting event. You know, that boy who'd just lost his dad to terminal cancer. (In case you were wondering, Patti still had plenty of paid time off available at the time.)

"Build a bridge and get over it, honey!"

So, some pretty sympathetic facts for Patti. The case was decided at the summary judgment stage, meaning that the judge had to view the facts in the light most favorable to Patti. Patti will get a trial on her claims, and the ex-employer will be able to present its side of the story at that stage. A jury could ultimately side with with Patti or the employer.

You can read the rest of the allegations in the decision -- Patti also has a claim of FMLA retaliation and one for Title VII retaliation because she complained about the way the employer treated women (also, an age discrimination claim that was dismissed) -- but I want to get back to this issue about requiring an employee to take "block" FMLA leave when the employee doesn't need it.

IS there a solution?

The DOL regulations say you can't do this. When I have a client who is really desperate, I will suggest (even though the regs don't specifically authorize it) requiring the employee to take "block" leave but counting only the "necessary" time against the employee's 12-week FMLA entitlement. Any other time can be covered by PTO or short-term disability or workers' comp, or just regular pay ("Hey -- you said you were in dire straits!"), and it cannot be counted against the employee for FMLA or attendance purposes.

I don't know whether anyone has ever taken me up on this suggestion because, once I suggest it, I never hear about it again. I assume the employers have decided it's easier to deal with the unpredictable intermittent absences.

So, what can you do when you have an employee in a critical-but-inflexible position who needs interimittent, unpredictable FMLA leave? Not a heck of a lot, unfortunately.

*If you are in the Eighth Circuit, you can try requiring the employee to take "block" FMLA leave instead. As I said, I'm not sure the Eighth Circuit really authorizes this. If you're wrong, then you're in for it. Reinstatement, back pay and benefits, liquidated damages (possibly), and attorneys' fees.

*If you are anywhere else, you can do likewise and claim that the U.S. Court of Appeals for the Eighth Circuit is on your side. If you're wrong -- well, you know (see previous bullet).

*You can try my harebrained idea that no one seems to like. (See above.)

*You can tough it out, and let the employee have the leave on the terms on which she has requested it.

I'm not saying that any of these are good options. I don't think they are. An employer should be able to keep its business running when an employee has to miss a significant amount of work on an unpredictable basis. I wish the DOL would provide employers with some workable solutions that are legal. But I'm not going to hold my breath.

Image credits: Wikimedia Commons. (Statue is Angel of Grief (1894) at graves of sculptor William Wetmore Story and his wife in Protestant Cemetery, Rome, Italy.)

Remember that Supreme Court decision involving alleged retaliation based on an oral complaint of violation of the Fair Labor Standards Act? The plaintiff in the case is now going to get a jury trial.

In its 2011 decision in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court found that an informal, oral complaint could be "protected activity" under the FLSA and remanded the case back to Wisconsin, whence it came. On remand, a federal judge found that the employee had engaged in protected activity but also found that there was not enough evidence that he was terminated because of it, so the judge granted summary judgment to the employer.

The U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, has now reversed on the causation issue, which means that the employee will get a jury trial on his claim of retaliation.

Both the district court and the appeals court agreed that the employee had engaged in legally protected activity, by making repeated complaints (and threats to sue) over the placement of time clocks in the facility. He contended that the clocks were too far away from the area where employees had to don and doff their gowns and prepare to work. (The donning and doffing time was compensable.)

The company contends that the employee was terminated for repeated violations of its time-clock punching policy, for which he received several prior warnings.

The district court and the Seventh Circuit parted company on the "causation" issue. The Seventh Circuit found that there was plenty of reason for a jury to find that the plaintiff was terminated because of his legally protected complaints. (Because this was an appeal of a summary judgment decision, the Seventh Circuit did not decide whether there was retaliation but only that there was enough evidence of it for the case to get to a jury.)

And that's what I want to talk about today -- "causation" in a retaliation case. What do you do if you, as an employer, want to take action against an employee after he or she has taken some type of legally protected action*? Do you just have to live with whatever the employee chooses to dish out?  How do you determine in advance whether the decision will survive a retaliation claim?

*"Protected activity" can include an internal complaint of discrimination, a discriminatory harassment complaint, an EEOC charge, assistance to another employee who alleges discrimination or harassment, protected concerted activity, a workers' compensation claim, a complaint that the time clocks were too far away from the donning and doffing area and that was illegal . . . you name it.

A few guidelines follow, but first, four general rules that will always apply:

GENERAL RULE NO. 1: You can't be liable for retaliation if you didn't know about the protected activity. Kind of obvious, I know, but people forget. If your employee, Joe, called in sick and secretly filed an EEOC charge on December 1, you fired him on December 10, and on December 15 you learned of the charge for the first time after it arrived in the mail, then the termination may be a lot of things, but it was not retaliatory. How can you retaliate against Joe for filing a charge when you didn't even know he had filed the charge? On the other hand, if you heard through workplace gossip on December 9 that Joe was really at the EEOC instead of home recuperating from the flu, then you won't have the "ignorance is bliss" defense. (You may still be able to terminate him for giving a false reason for his absence, but that won't be nearly as easy to defend, especially when the true reason -- which you knew -- was that he was at the EEOC.)

GENERAL RULE NO. 2: You are not a hostage to an employee who has engaged in protected activity. Employees who -- for example -- file EEOC charges while they are still employed often seem to think they have a "shield of invulnerability" from any further discipline or other adverse action. Not true. Yes, an employer must be very cautious in taking action against an employee it knows has engaged in protected activity. But that doesn't mean the employee can get away with being a jerk, or insubordinate, or not doing her job. All it means is that the employee can't be fired for filing the charge.

"Since I filed that EEOC charge, I can leap tall buildings at a single bound! Oh, darn, I forgot about the kryptonite."

GENERAL RULE NO. 3: Before you act, make sure you would have taken the same action against your best employee who did the same thing. Examine your conscience: if this were your favorite employee, and he had done the same thing, would you treat him the same way that you want to treat Joe? If so, then you are probably on solid ground. If not, then back off. You usually won't go wrong being consistent.

If you wouldn't fire these lovable pets for doing the same thing, then don't fire the "protected" employee, either.

GENERAL RULE NO. 4: Consult with employment counsel before terminating, or even disciplining, an employee who you know has engaged in legally protected activity. This is not a sales pitch, I promise. There are at least two good reasons to consult with counsel in advance: (1) a good lawyer will "cross-examine" the decisionmakers and ensure in advance that the decision is defensible (or advise you not to go forward with it), and (2) all of your discussions with the lawyer will be protected by attorney-client privilege.

With those preliminaries, here are some of the reasons that Mr. Kevin Kasten is going to get a jury trial on his retaliation claim:

1. No blissful ignorance with this employer. There was no question that the employer in the Kasten case was aware of his complaints because he had made them directly to the employer.

2. The complaints were apparently considered by the employer in making the termination decision. Well, duh, right? The Human Resources manager testified that Mr. Kasten's protected activity "likely" was discussed when management decided whether to terminate his employment. "Likely"? Of course it was discussed! They would have been fools if they hadn't. How can you "examine your conscience" (General Rule No. 3) if you don't acknowledge the protected activity? You can't -- it is impossible. This acknowledgement by itself would not be evidence of retaliation, but as you'll see there was a lot more going on in Mr. Kasten's case.

3. A supervisor (allegedly) made a (possibly) threatening statement. When Mr. Kasten was about to be suspended for his fourth violation of the time clock policy, and after he had made complaints about the placement of the time clocks, a supervisor allegedly told him, "just lay down and tell [management] what they want to hear, [they] can probably save your job." The court said that a jury could interpret this as a warning to Mr. Kasten to back off on his "protected" complaints.

And, yes, if you're like me, you would have interpreted this alleged statement to mean, "Just go in and tell them you're sorry that you never punch in like you're supposed to, and that you'll do better from now on -- they probably won't fire you." Unfortunately for the company, at this stage of the proceedings, the court had to view the facts in the light most favorable to Mr. Kasten. Mr. Kasten also alleged that he said in the suspension meeting that the placement of the time clocks was illegal. (The company denies this.)

4. Suspicious timing. This was probably the most damning part, from the company's point of view. Mr. Kasten's suspension (with the alleged "threat") took place on December 6. On December 9, a Saturday, "management received an email indicating that Kasten had inquired about class action suits regarding time clock punches." On the following Monday, December 11, Mr. Kasten was fired while still on suspension, and the time clocks were moved to a better location that same day. As timing goes, you can't get much worse than that.

"You accuse me of breakin' the law? You're FIRED."

5. "Similarly situated" employees were treated more leniently. Mr. Kasten had some evidence that other employees who had missed punches but had not complained about illegal activity were not handled with as much "dispatch" as was Mr. Kasten. See General Rule No. 3.

6. Mr. Kasten himself was treated more leniently before he complained. According to his evidence, he was allowed to miss punches all the time before he started complaining that the placement of the time clocks was illegal. After he complained, he was written up for every missed punch. It's possible that the company cracked down on all missed punches after finding widespread abuse of the policy. If so, that could be a defense. But it was tough for the company to establish this when Mr. Kasten also (allegedly) had No. 5 working in his favor.

7. The company messed up in responding to an administrative complaint and didn't make a correction until Mr. Kasten pointed it out. Please see my General Rule No. 4 about consulting with a lawyer. (For all I know, this company did consult with a lawyer, but I doubt it, for the reasons that follow.) Mr. Kasten's termination paperwork said that he was fired for violating the time clock/missed punch policy. OK. After his termination, Mr. Kasten filed a complaint with the Wisconsin Equal Rights Division, and the company submitted a position statement. The position statement said that Mr. Kasten was fired for violating the Attendance Policy. In fact, Mr. Kasten did not have enough absences to warrant termination under the Attendance Policy. It was only after Mr. Kasten pointed this out to the agency that the company made a correction.

Employers, whatever you say to an administrative agency can and will be used against you in a court of law. You need to be sure that your explanations are consistent with prior documentation including the termination paperwork, prior discipline, anything you might have said to a union or to your state's unemployment agency, and everything else. If you offer "shifting reasons," as the courts like to call it, that is some evidence that the stated reason for the termination is a pretext (cover-up) for an illegal motive.

"You better be sure you can substantiate that, ma'am."

Try not to make substantive mistakes in anything that you file with an administrative agency. But if you do slip up, go ahead and make the correction as soon as possible after you discover it. Don't wait for the employee to point it out. If you do, it looks like you were trying to get away with something.

And it helps to provide the agency with a written explanation for the error. For example, "We apologize for our error and any confusion it might have caused. The position statement was drafted by our new Human Resources Manager, who had been on the job only one week and was not yet fully familiar with our policies and procedures. After discovering this error, we reviewed the entire position statement to make sure there were no further errors, and we have verified that everything else in the original position statement is correct." 

Now, all that having been said, I did not consider Saint-Gobain's error to be fatal, just because the termination paperwork -- filled out at the same time as the termination and therefore pretty reliable -- indicated the correct reason. And it's possible (nay, likely) that the company didn't even look at the position statement again after they sent it in. If so, there was no way they would have realized there was a mistake until after Mr. Kasten pointed it out. But this illustrates how important it is to get your facts right in responding to an administrative complaint.

(By the way, this same rule applies to the employees who file complaints. If your case goes to litigation, the company will get to see what you submitted, and if your story has changed, they can use that against you, too.)

"It could be that the purpose of your life is only to serve as a warning to others."

Image credits: Wikimedia Commons.

Here's a strange little case for ya . . .

A loss prevention manager for a major retail store chain -- we'll call her "Loretta" -- had some performance issues in the past but was only five days away from the satisfactory completion of a performance improvement plan. She and a male loss prevention partner were called to investigate a sexual harassment complaint. During the investigation Loretta and her male partner believed that the victim was "holding back." They agreed that Loretta should interview the victim alone. Apparently in response to some leading questions, the victim told Loretta that her supervisor had raped her, and more than once. The victim said that she did not want her husband to know and did not want to go to the police.

Loretta and her partner reported all of the above to their bosses, and Loretta strongly recommended that the company report the alleged rapes to the police. The company declined to go to the cops because the victim didn't want that, but they immediately suspended and eventually fired the alleged harasser/rapist.

Despite this prompt action, Loretta continued to insist that the company go to the police. The company continued to refuse to do so. Loretta was terminated shortly afterward -- according to the company, Loretta violated company policy by interviewing the victim alone, and by asking the victim leading questions.

Loretta, unsurprisingly, sued for retaliation.

So, who wins?

Continue Reading

Our friend Judy Greenwald from Business Insurance magazine reported this week that the number of EEOC charges filed in fiscal year 2011 (which ended September 30, 2011) was relatively flat, with the exception of one big category . . . retaliation.

Retaliation is essentially taking action against an employee because the employee engaged in some type of activity that is protected by law. The law breaks it down into three parts, each of which the employee has to prove:

1-The employee engages in some type of legally protected activity (more on this below).

2-"Adverse employment action" is taken by the company.

3-There is a "causal nexus" (that's "connection" to you and me) between the protected activity and the adverse action. In other words, there has to be some reason to believe that the adverse action was taken because of the protected activity.

Almost all federal and state employment laws have anti-retaliation provisions. In the labor relations arena, the "non-discrimination" provisions in the National Labor Relations Act are essentially anti-retaliation provisions. A wrongful discharge lawsuit where an employee claims he was terminated for refusing to break the law or for complying with the law is also essentially a retaliation claim.

"Protected activity" can include such things as filing a charge or lawsuit, providing truthful testimony or other help to someone else in connection with a charge or lawsuit, or making an internal complaint about unlawful practices. These activities may be protected even if the employee is wrong -- as long as the employee had a good-faith belief that the employer's conduct was illegal. (Sometimes the employee's belief must also be objectively reasonable to be protected -- check the relevant law and the interpretations from courts in your jurisdiction.)

However, the employer may not be liable if the employee expresses herself in an inappropriate way -- for example, by spray painting on your corporate headquarters building, "MEGACORP DISCRIMINATES AGAINST WOMEN!!!!" (Thank heaven for small favors, huh?)

Now that you have that background, what I'd really like to talk about today is how an employee proves retaliation and how an employer disproves it. With a hat tip to Jeff Foxworthy (you knew there was a reason for that photo of a trailer!),

"YOU MIGHT BE LIABLE FOR RETALIATION IF . . ."

1-You took action against the employee a short time after you found out about the protected activity. Yes, there might be an innocent explanation, and you'll get a chance to provide it, but it looks very suspicious if the adverse action occurred, just as an example, the day after you received your copy of Joe's race discrimination charge in the mail. If the time interval was less than six months and you don't have a good explanation, you might be liable for retaliation.

2-That gun is smokin'! You, or another member of management who directly or indirectly participated in the decision made a statement indicating a retaliatory intent. You know, something like, "I can't believe that little dickens filed an EEOC charge against us! I'll fix her wagon!" If one of the key individuals made a "smoking gun" statement like this before the adverse action was taken, you might be liable for retaliation.

3-You have no "interventions." In other words, there is no intervening event to "break" what we lawyers like to call "the chain of causation." Mary had outstanding performance reviews before she complained that Mr. Romeo was sexually harassing her. She was fired a month later. There was nothing significant that occurred between her harassment complaint and her termination that would "explain away" the suspicious timing of the termination . . . for example, that Mary had botched a million-dollar deal after she complained, or got caught with her hand in the petty cash drawer, or was part of a department that was already scheduled for elimination. If there is a relatively short time between the protected activity and the adverse action, and there is no significant intervening event, you might be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Employers, if you have to take action against an employee who engaged in protected activity, examine your conscience: "Would I be doing the same thing if Lemuel had not complained on behalf of himself and his co-workers about having to work too much overtime?" Oh, really? Are you sure? If you answer that question, "no" or "maybe," then don't take the action. If you answer it "yes," then you're still not done. Now ask yourself this: "Even if I am satisifed that I'm treating Lemuel no differently from any other employee, will I be able to prove it in court?" If you can't convince a third party that you treated Lemuel the same way you would have treated any other employee with similar issues, you might be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Do you have other employees who've filed charges or lawsuits against you while they were still employed? Or workers' compensation claims? Or who made internal complaints about discrimination, sexual harassment, working conditions, safety, or what have you? Did bad things happen to them? This could show that you have a pattern of retaliating against employees who engage in protected activity. If so, a judge or jury is likely to find that you probably treated this particular employee the same way, and you might be liable for retaliation. 

We aim to be "fair and balanced," so here is the other side.

YOU MIGHT NOT BE LIABLE FOR RETALIATION IF . . .

1-You are blissfully ignorant. You can't retaliate for something you didn't know about. If you fired Velveeta before you knew that she had been involved in union organizing, then you should be ok. In fact, if you can prove that you made the decision to fire Velveeta, and then found out she was involved in union organizing, and then fired her per the original decision, you'll probably win because the decision had already been made while you were knew nothing of her protected activity. This, by the way, is one of the best reasons to document decisions to terminate employees, even if the termination isn't actually carried out until later.

If the decision was made before you knew about the protected activity, you might not be liable for retaliation.

2-It's been a long time coming. If at least six months has elapsed between the time you found out about Todd's workers' comp claim and the day that you decided to fire Todd, most courts will give you the benefit of the doubt that the decision was not related to his protected activity. Todd can overcome that presumption by presenting evidence that you were still upset with him about his workers' comp claim even after all that time, but assuming he doesn't have any, you might not be liable for retaliation.

3-You have an "intervention." You found out last week that Banshie had filed an EEOC charge against you. Yesterday, you caught her (on tape!) slapping her supervisor across the face for no good reason whatsoever. YES, you can fire Banshie for slapping her boss, even though she just recently filed a charge that you know about. This is what we call a significant intervening event that "breaks" the chain of causation. If a significant intervening event occurred that provided the ground for the adverse action, then you might not be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Yes, you terminated Dishwater only three weeks after finding out about his testimony against the company in Carol's discrimination lawsuit, but he had exceeded the maximum number of absences (non-FMLA/ADA, of course) under your policy, and you checked before you did it and made sure that every other employee whose attendance reached the same level had also been terminated. You also found that Dishwater had received all of the progressive warnings to which he was entitled under your policy. If you treat the "protected" employee the same way you would have treated anyone else with comparable history, then you might not be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Yes, you fired Chloreen for poor performance a couple of months after you found out that she'd filed a charge against you. But you have 50 other employees who have filed charges, lawsuits, or workers' comp claims, or who have made internal harassment complaints, etc., etc., who are all still working for you and are in good standing. If you have a long list of employees who are rocking along at work without problems even though they're "protected," then you might not be liable for retaliation.

After a great holiday feast, isn't it fun just to eat the leftovers? Like a nice, cold roast beast sandwich with a wedge of leftover pie? Yum!

Here are some great labor and employment blog "leftovers" from the holidays that I hope you will enjoy as much as I did, followed by a few new year's resolutions for employers and employees. Please add to my list!

In case you were chillaxin' last week and missed it, here is a link to my 2011 labor and employment year in review. With President Obama's recess appointments (thanks to Eric B. Meyer of The Employer Handbook), it's already getting stale, so hurry up and eat!

More tasty cold stuff from around the internet:

The Evil HR Lady tells you how to know if you are the "Kim Jong Il" of your company. Funny, and good advice, too.

Daniel Schwartz of the outstanding Connecticut Employment Law Blog uses his Magic 8 Ball to let us know what to expect in the world of employment law in 2012.

And Donna Ballman of Screw You Guys, I'm Going Home uses the magic 8-ball app on her iPad to make her 2012 predictions from a plaintiff's perspective. Donna, you are so high-tech!

Philip Miles of Lawffice Space shares with us his Top 5 Employment Law Cases of the Week for 2011. If you ever wanted to know about "Crazy Bi**h Bingo" (and who doesn't?), be sure to check Philip out!

Here's a favorite from Jon Hyman of Ohio Employer's Law Blog: Resolve this year to properly handle no-fault attendance policies. Since the $20 million EEOC/Verizon settlement, this is more important than ever.

OK, is that tryptophan kicking in yet? But, wait! Don't get too comfy, because now it's time for some employment New Year's resolutions:

1. If I am an employer, I will make sure all of my supervisors and managers have harassment training this year. At a minimum, the training will cover harassment based on race, national origin, religion, disability, and age, as well as sex. If my state or company policy prohibits other types of harassment, I will be sure that those types are covered as well.

2. If I am an employee, I will refrain from using social media to bad-mouth my boss, my company, my co-workers, or my customers . . . even if the National Labor Relations Board says it's legal for me to do so.

3. If I am an employer, I will review my attendance, medical leave, and reasonable accommodation procedures to make sure that they comply with the Americans with Disabilities Act. If they don't, I will make the appropriate changes right away. No procrastination!

4. If I am an employee, I will show up for work on time every day unless I have a very good reason not to, and I will give my employer a fair day's work for a fair day's pay, with no "drama."

5. If I am an employer, and if I haven't done it recently, I will have a wage-hour audit in 2012 to ensure that my employees are properly classified as exempt/non-exempt, that the non-exempt employees aren't working off the clock, that I'm not violating child labor laws (especially if I'm in the food or hospitality industry), and that I don't have any employees whom I am improperly treating as "independent contractors." If it turns out that I'm doing anything wrong, I will promptly fix it. No dawdling!

6. If I am an employee, I will comply with my employer's rules about appropriate behavior at work, including but not limited to rules pertaining to honesty, harassment and bullying, and safety.

7. If I am an employer, I will make sure that I am in compliance with the Genetic Information Non-Discrimination Act, and in particular that I am providing the "safe harbor" language whenever I sent one of my employees to the doctor.

8. If I am an employer, I will re-familiarize myself with the concept of "retaliation" and consult with an attorney whenever an employment decision looks like it may be close to the line. I will not wait until after the damage has been done.

Ugh. And this post started out so nice. Please add any resolutions you think employers or employees should make this year. And a safe and prosperous 2012 to you all!

It could be that the purpose of your life is only to serve as a warning to others.

In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act.

The case is well worth a post-mortem because of what it teaches employers about "causation" in retaliation and protected concerted activity cases.

Names have been changed to protect the allegedly* guilty.

*Even though the AMA lost a battle with this decision, it has not lost the war. The court found that summary judgment should not have been granted, but that means that the case will be tried before a jury. A jury might side with the plaintiff, but it might also side with the AMA.

Here's what happened:

The AMA, like just about every other employer, suffered from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper -- was told to reduce costs. Eventually it was determined that he was going to have to eliminate one position.

(One more disclaimer before I go on. Despite my fictional "doctor" names, none of the individuals actually involved in this case were physicians, as far as I can tell.)

Dr. Pepper chose an individual to eliminate -- we'll call him Dr. Seuss -- and sent an email to his boss informing her that he had chosen Seuss, and the rationale for selecting him. The gist of the rationale was that most of Seuss's work was going away anyway, so it made the most sense to eliminate his position.

Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent him a reply asking whether the plaintiff, Dr. Dre, should have been eliminated along with Seuss. Pepper replied no, because he did not think it would be wise to eliminate any more positions than absolutely necessary. Scholl apparently was cool with this answer. This all happened in late October 2008.

So, we get to November 20 at a conference. Dr. Dre was there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his knee in January, would be out of work for a few weeks, and was going to apply for short-term disability.

I hope you've stayed with me, because now it gets interesting.

Ten days after this conversation, on Sunday night of Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing for his "11th hour" change in decision, and telling her that he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things, Pepper said that they could more easily weather the loss of Dre because they were preparing for him to go out on disability anyway.

Poor Dr. Dre was terminated in January, and he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February. The AMA's in-house attorney informed the organization's HR representative about the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays, should that be Dr. Mumbai?)

It turns out that Dr. Bombay and Dr. Pepper had discussed the decision to terminate Dr. Dre back in November and that Bombay had taken handwritten notes. Upon learning of the threatened litigation the following February, Bombay typed up his notes and shredded his original handwritten notes, and he dated the typed notes "November 25, 2008," even though it was now February 2009.

Hmmmmm! Verrrrrrry interesting.

But, wait! There's more!

It turned out that Dr. Pepper's calendar didn't show a meeting with Dr. Bombay on November 25, and Pepper didn't remember having had one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until after that date. All this made Bombay's backdating look even more dishonest.

In May 2009, the AMA eliminated about 100 more employees, including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate. Apparently this was enough for a district court to grant summary judgment to the AMA. (I know! I'm not sure how that happened, either.)

But the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed, which means that Dr. Dre will be allowed to take his FMLA "interference" and retaliation claims* to trial.

*FMLA "interference" is simply a denial of FMLA leave to someone who is entitled to it, or doing something to discourage the individual from taking FMLA leave. It does not require a bad motive on the part of the employer and can even be based on a mistake or misunderstanding. In the case of FMLA retaliation, the employer "punishes" the employee for requesting or taking FMLA leave. Proof of the employer's unlawful motive is required for a retaliation claim.

So, let's make the usual Y-shaped incision and see what lessons can we learn from our "autopsy" of this case.

1. Timing is really, really important. On October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he gave a good reason for the selection. He also told her that he thought it would be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre informed Pepper that he would need to take FMLA leave in January. Within 10 days, Pepper reversed his RIF decision and recommended that Dre be eliminated instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite damning, doesn't it? The Seventh Circuit thought so, too.

2. Mentioning the FMLA leave in the poorly-timed email was not cool. In Dr. Pepper's "11th-hour" email, he said that the department could adjust easily to Dr. Dre's elimination because they were already preparing for his medical leave. Yes, I know there could be an innocent explanation for this: Pepper wasn't giving that as his motivation, he was simply giving his opinion about the effect of the decision. But this statement, especially when considered along with everything else, helps to make it look like the FMLA leave request was the reason for the selection.

3. Backdating documents is really not cool. Here's what I always tell clients: It's fine to document an event after the fact, even long after the fact, and I strongly recommend it if you didn't document at the time. But never, ever, ever, ever, ever, ever, ever in a million zillion years backdate it -- unless you are sure that the backdating is "transparent" (for example, drawing a line through the current date so that the original date is still visible, or saying something like "Created 10/22/11 based on event that occurred 6/1/11."). Any other kind of backdating looks dishonest and, as the Seventh Circuit noted, is more evidence that the employer may have had an unlawful motive and was trying to cover its tracks.

4. Destroying handwritten notes upon learning of threatened litigation (aka "spoliation") is the uncoolest of all. If you're not expecting litigation and don't have reason to expect it, then you can create a "draft" document and destroy the draft after creating the "final" version. But once you either become aware of litigation or have reason to expect it, your right to do this is gone. You must save all of your relevant documentation. Dr. Bombay, the HR representative who destroyed his handwritten notes after learning of the threat of a lawsuit, committed "spoliation," whether he realized it was wrong or not. As a result, when the case goes to trial, the judge may instruct the jury that the notes would have been favorable to Dr. Dre's case.

5. To err is human: be willing to cut your losses if you messed up, or if it will look like you messed up even if you didn't. In this case, it appears that Dr. Dre would have survived at the AMA only about 5 more months if Pepper had stuck with his original plan to eliminate Seuss in January. The undisputed evidence showed that the AMA had a massive reduction in May, and it probably would have included Dre if he'd still been around. Damages under the FMLA are limited to so-called "make-whole" relief (essentially, back pay, back benefits, costs and attorneys' fees, possibly doubled in the case of a willful violation). Even assuming the AMA might have been on the hook for a "willful" violation, it probably had a strong argument that it would not have owed much more than 10 months' pay to Dre, plus his costs and fees. Given that, it might have made economic sense for the AMA to have settled the case in mediation. (Please note that mediations are confidential, so it is very possible that the AMA tried to do just that.)

I was tempted to end this post with a rap about Dr. Dre, the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I thought better of it. You're welcome.

It's not just London that is suffering from unrest these days -- there is reason to believe that American workplaces are far from heaven, too, even for those who are still fortunate enough to be employed.

The Wall Street Journal recently reported that approximately 75 percent of departing employees would not recommend their former employers to others looking for a job, almost a 100 percent increase over the "disgruntlement index" from 2008.

Meanwhile, the Equal Employment Opportunity Commission received more than 99 thousand charges in 2010, an increase of approximately 6,000 since the prior year. No telling what the numbers will be for 2011. My guess is "atrocious."

Want to guarantee you'll be sued, even if you're 100 percent in compliance with the law? Here are five employer "worst practices":

1. "They can have my unemployment when they pry it out of my cold, dead hand." Be sure to fight every unemployment claim filed by every terminated employee. OK, maybe you can make an exception for those who are caught up in a reduction in force, but that's it. It's good to make your ex-employee feel like he's backed into a corner. And if the fight is worth fighting at all, it should be a fight to the death. If you lose the unemployment case at the hearing stage, appeal it as far as you can go -- that will help your ex-employee learn to do better at his next job.

2. The EEOC is offering to mediate? So what? Don't give those bureaucrats the satisfaction! They'll just be pushing their agenda and letting this undeserving ex-employee tell you to your face why her feelings are hurt and take what little money she can weasel out of you. Sure, occasionally she'll settle for no money at all, and the charge will be dismissed without even a position statement, and you can get a full release of claims in exchange, but you're 100 percent in the right, so you don't need it. You're going to win! It's a matter of principle -- you'd rather pay your lawyers to defend you in court for the next two or three years than pay a nickel to this bimbo. 

3. If an employee can't perform the essential functions of the job* because of medical problems, then tough darts. The ADA says they're out of luck. Heck, even the ADAAA does. So what if the Obama EEOC has made disability discrimination enforcement a top priority? You're on rock-solid ground. Don't lift a finger to help your sick or injured employee qualify for short-term or long-term disability, or for Social Security disability -- that's his problem. It's not under your control, anyway.

*With or without a reasonable accommodation, of course. If the employee can perform the essential functions with a reasonable accommodation, then that would have to be offered.

4. Never let 'em "quit." If you're firing an employee, be sure that the record clearly reflects that she was fired. In disgrace, preferably. Whatever you do, don't offer her an opportunity to save face and "resign." A forced resignation won't be worth a darn in court anyway because they'll treat it as a "constructive discharge." Better to just let the chips fall where they may. If that means she'll have to spend at least six more months looking for another job (and turning to the EEOC in desperation before her charge-filing period runs out), so be it. What doesn't kill her will make her stronger on her next job.

5. Whatever you do, don't offer severance unless it's a RIF. Sure, you normally get a full release of claims when you offer severance, but why pay if you don't have to? You haven't done anything wrong -- your ex-employee has. Save your money. You can use it to pay your lawyers after he sues you. (You may need a little more.)

Finally, don't forget to let your boss know what you have done. He or she will admire your principles and will think the risk of litigation and legal fees were, like, totally worth it. I bet you'll get a promotion. 

The U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) recently affirmed the dismissal of a race discrimination lawsuit against a union whose hiring hall refused to refer the plaintiff for laborer positions. Essentially, the Court said that the union was justified because the plaintiff had three no-rehire letters in his file from three separate ex-employers. His alleged "issues" included poor attendance, poor job performance, and insubordination, as well as abandoning a $40,000 Bobcat . . . while the motor was running.

Plaintiffs sure do crack me up sometimes.

I have no doubt that this guy's prospective victims employers were very grateful to the union, as well as to the three employer "guinea pigs" for providing honest information about his lousy work ethic and attitude.

But, you may be thinking, we can't provide information about an ex-employee. All we can do is provide dates of employment and positions held (aka Name, rank, and serial number)! Otherwise, we'll get sued!

Generally, I agree. Employers who provide negative reference information about former employees can be vulnerable to claims for defamation and retaliation (yes, the law says you can be liable for retaliation against a former employee as well as a current one), and under state anti-blacklisting statutes.

However, there are occasions when it is prudent to provide more than "Name, rank, and serial number" to (1) avoid incurring liability when a bad employee does something really, really bad at his next workplace, and (2) maintain good relations with your fellow employers by providing judicious warnings about the bad apples.

There are also occasions when you might want to provide positive information about an ex-employee.

Wow -- who knew reference information was so complex?

The complexity will make sense when you consider that not all involuntary terminations are equal. I think it helps to divide them into four categories:

1. Good employee, lousy luck. This group is predominantly made up of good, hardworking, rule-abiding employees who get caught up in a reduction in force. As a responsible employer, you are going to want to do everything you can to help these folks find other jobs. It would not be wrong for you to provide this category with a letter stating that they were terminated through no fault of their own, that they're eligible to come back if the situation at the company improves, and that they're very good at XYZ.

One caveat here: Sometimes employers use RIFs as an opportunity to eliminate lackluster employees with whom management "failed to deal." In other words, their managers had not addressed their problems, much less documented anything. Assuming you provide letters of reference for the good people who were let go, I'd consider providing them also for employees in this "lackluster" category, but saying only that they were let go as part of a RIF and, perhaps, adding a positive but truthful statement about them -- e.g., "Mary always came to work on time every day when she bothered to show up and was well thought of by her co-workers even though her bosses couldn't stand her."

Another caveat: I wouldn't even do that much for employees who were clearly bad. For example, your RIF criteria might have included everyone on an active written discipline. Unless they fall into my last category (see "Axis of Evil," below), this group should usually get the "Name, rank, and serial number" treatment and no letter of reference.

2. Good guy*, couldn't cut it. This category includes the employee who means well and tries hard, but who just cannot meet the employer's performance expectations and so is eventually fired, hopefully after some sort of performance improvement plan. "Name, rank, and serial number" is fine for this type of employee, but it would also not be wrong to provide a truthful and positive letter of reference -- for example, "Joe was our Chief Financial Officer from [DATE] to [DATE], and when it came to making sure we paid all our bills on time, no one was better."

*As we lawyers so pithily put it, "The masculine shall be deemed to include the feminine, and vice versa."

3. The run-of-the-mill-rotten employee. This category includes the majority of employees who are terminated for cause: lazy employees, employees with unjustified attendance problems, employees who violate work or safety rules, employees who have bad attitudes, employees who commit lower-grade dishonest offenses (for example, falsifying time sheets), employees terminated for "less-serious" harassment (for example, one too many off-color jokes), etc. Of course, you don't owe these folks any letter of reference: they should get the "Name, rank, and serial number" treatment. If you choose to add that they are "ineligible for rehire," that should be fine as long as you have progressive warnings or other appropriate documentation so that you'll be able to prove that they're not being discriminated or retaliated against.

4. "The Axis of Evil." It is hoped that you will not encounter many people in this category, but this would include employees who were terminated for extremely serious reasons: theft, embezzlement, severe harassment (including harassment based not only on sex or race, etc., but also "stalking" or threatening or bullying), violence, crime, and serious safety violations, especially if they endanger co-workers or the public.  For this category of employee, you probably have a moral if not legal obligation to provide some level of warning to would-be employers. Of course, you will have to be very careful about what you say to avoid liability for defamation. But truth is a defense to a defamation claim, so the key is to make sure that what you say is absolutely factual, and that you can prove it.

For example, let's say Mary accuses her supervisor, Joe, of serious sexual harassment -- a sexual assault. You conduct a thorough investigation (that's another blog topic for another day) and cannot determine for sure that it happened. But there is strong evidence to support Mary's allegations, and so you terminate Joe.

When Joe's prospective employer calls you for a reference, why not follow the path of least resistance and limit yourself to "Name, rank, and serial number"? Because of the gravity of the allegations. Joe might go to his next employer and rape an employee there. When it comes to light that Mary had made credible allegations of sexual assault while Joe worked for you but you didn't disclose it when asked for a reference, you could be liable to Joe's next victim and even, possibly, Joe's next employer.

So, what do you say?

NOT THIS: "Joe was terminated from Acme Company for sexually assaulting his employee in the broom closet."

Since you don't have conclusive proof that Joe did it, you won't be able to establish the "truth" defense if Joe sues you for defamation.

DO SAY THIS: "Joe was terminated from Acme Company after an investigation into allegations that he had sexually assaulted his employee."

You aren't saying anything you can't prove in a court of law, so you should be able to take advantage of the "truth" defense. And the next employer is still getting all the information it needs to be able to reject Joe for hire.

Well, you are saying, this discussion has been delightful, but it seems like an awful lot of fine-line-drawing. Does this mean we have to talk to a lawyer every time we provide an employment reference?

For categories 1-3, you should usually not need to consult with a lawyer. For the "Axis of Evil," you should always consult with a lawyer, and it will be time well spent. Here is a quick list of the handful of situations in which I would recommend getting legal counsel involved:

1. Whenever an ex-employee has engaged in some type of legally protected activity (internal complaint of discrimination or harassment, truthful testimony, or charge or lawsuit) and you are not planning to treat her exactly the same way that you treat everyone else.

2. If your failure to give an ex-employee a letter of reference might look discriminatory to an outsider. (For example, you are giving letters of reference to all of your Anglo and African-American employees whose jobs are being eliminated, but you are not giving one to your only Hispanic employee, who happened to have attendance problems. This might be fine because of the attendance problems, but it would not hurt to have an attorney make sure you can justify the differential treatment.)

3. Any time you are considering providing an affirmatively negative reference about an ex-employee.

4. Any time an employee is being fired for an "Axis of Evil" offense but you believe you should not provide truthful reference information.

(Again, don't forget to check your state's laws about blacklisting and references before you provide any information about a former employee.)