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Reversing a recent trend to extend broader coverage to employees under FMLA, the 8^th Circuit Court of Appeals recently ruled that while treatment for alcoholism is covered by FMLA, a five-day drinking binge is not.

In Scobey v. Nucor Steel-Arkansas, a steel mill employee was no-call, no-show on April 10. The following day the employee, Talmadge Scobey, spoke briefly to his supervisor on the phone. Scobey sounded intoxicated, and told the supervisor he was not coming to work because he had suffered a nervous breakdown. However, when the supervisor tried to get more information, Scobey hung up.

The employee was also absent on April 12, 13 and 14. On April 14, the employee again phoned the supervisor, saying that he wanted to get help. The employee was referred to the HR manager, but did not contact her until April 19. At that point, the employee was referred to Nucor Steel’s employee assistance program, and entered an inpatient alcohol treatment program.

The employee argued that the employer should have known that his absence was for an FMLA-related reason due to his statements on April 11 that he had “a nervous breakdown” and the very colorful expression he used to mean that he was intoxicated at the time.

While employers should still err on the side of caution when providing (more…)

During July, both the U.S. House and Senate took measures that would require more employers to use E-Verify, including federal contractors and companies that benefit from federal stimulus spending.

The U.S. Senate passed an amendment to the 2010 Department of Homeland Security budget sponsored by Senator Jeff Sessions of Alabama, which will require federal contractors to use E-Verify, and extend that program for three more years.

According to Senator Sessions, this amendment will prevent illegal immigrants from being hired for construction projects funded by the federal stimulus packages. A similar bill was introduced in the House of Representatives.

The Society for Human Resource Management or SHRM has long opposed the mandatory use of E-Verify. SHRM argues that a biometric component such as fingerprints or retinal scan needs to be added to E-Verify. The problem is identity theft. Suppose a new employee presents documents for E-Verify as “John Turner”. E-Verify can check that John Turner can legally work in the U.S. However, there is no way for E-Verify to determine if the person presenting those documents is actually John Turner or not. SHRM and New York Senator Charles Schumer argue that E-Verify should not be used until the system can authenticate identity. Opponents claim that such a biometric system would be a violation of privacy.

While a number of states require employers to use E-Verify, federal contractors are still in limbo. In 2008, President George W. Bush signed an executive order that would have required federal contractors to implement E-Verify. However, it has been delayed and is currently being challenged in court by SHRM and other employer groups.

Nevertheless, many employers continue to voluntarily adopt the E-Verify system. E-Verify compares information provided by the (more…)

Employers should be cautious about routinely requiring fitness-for-duty certification from pregnant workers, after a recent EEOC discrimination suit.

A Kinston, North Carolina employer paid $300,000 to settle a claim of pregnancy discrimination brought by the federal Equal Employment Opportunity Commission. That covers back pay and compensatory damages for the affected employees.

The EEOC charged that since 2002, the employer has subjected pregnant employees to different terms and conditions of employment, compared to non-pregnant employees.

Specifically, the EEOC charged that the employer required pregnant women to furnish a full medical clearance in order to continue working – even if the employee took no time off and gave no indication that she was unable to perform her usual duties. This was in marked contrast to the treatment of non-pregnant employees, who were often permitted to return to work after an absence without a complete medical clearance.

This suit involved Britthaven, Inc. a corporation that owns and operates a chain of nursing homes and assisted living facilities. This specific incident involved an employee at the Carolina Commons facility in Greensboro. However, Britthaven apparently imposed similar restrictions on pregnant workers at some of its other 53 facilities in North Carolina, Virginia and Kentucky.

The EEOC contends that this practice resulted (more…)

In a rare ruling in support of employers, the 7th Circuit Court of Appeals recently found that employers can discipline and even terminate an employee based on problems discovered while the employee is on unpaid leave under FMLA, the federal Family and Medical Leave Act.  

The U.S. Department of Labor has long held that an employee on FMLA leave must be returned to his or her job, when the leave ends. However, the department has also repeatedly ruled that an employer can take any action against an employee, that the employer would have taken anyway, had the employee not be on FMLA leave. For example, the employer can terminate an employee for gross misconduct even if the employee happens to be on FMLA leave at the time the investigation is concluded.

In short, the employer cannot take any negative job action against an employee solely because the employee uses FMLA leave. However, simply taking FMLA leave does not make the employee immune from lay offs, or from being fired for just cause. This is true, even if the employer discovers the misconduct because the employee is on FMLA.

That decision was upheld in the case of Cracco v. Vitran Express, Inc. In this case, Kevin Cracco was a service center manager for Vitran Express, (more…)

Overtime for disabled workers is in the news again. Just last week the EEOC announced a settlement with United Airlines regarding overtime for employees on light duty under ADA, the Americans with Disabilities Act.

Now another case underscores the fact that employers must not discriminate in awarding overtime to disabled employees, even those on light duty.

The most recent case involves the U.S. Postal Service. Patricia Grana sued the postmaster general under the Rehabilitation Act, which prohibits federal employers and those receiving federal funds from discriminating against disabled workers. Grana challenged the policy of choosing employees on light duty last for overtime. Again, as in the United claim, Grana argued that such a policy had a disparate impact on disabled workers, who are more likely to be on light duty.

In Grana’s case, she was frequently on light duty due to a disability affecting one knee.

The U. S. Postal Service noted that this policy ended in 2004. However, Grana’s claim, which the court found valid, contended that the policy lasted until January 2006. Under the system introduced in January 2003, employees volunteered for overtime by putting their name on a list at (more…)