Legal Corner

FMLA
DOL provides PowerPoint and PDF presenting overview of FMLA

The Department of Labor (DOL) has published and posted on its website a PowerPoint and PDF providing an overview of the FMLA. Employers can tweak these documents and use as training tools. It's helpful to add emphasis to things like employee notice requirements, call-in procedures, and timely, complete and sufficient medical certification and re-certification that can strengthen an employer's position.

Lack of individual notices puts employer on the hook

An employee of the Wackenhut Corporation sought and took all 12 weeks of FMLA leave without receiving a Notice of Eligibility and Rights & Responsibilities and a Designation Notice. When the employee failed to return after exhausting her 12 weeks of leave, Wackenhut terminated her. When the employee filed an FMLA interference claim and later filed a motion for summary judgment, the court ruled in favor of the employee.

The Court held that, per the FMLA regulations, the individual FMLA notices provided to the employee are absolute, and when they are not provided, the employee is prejudiced:

"Plaintiff was not afforded the opportunity to make informed decisions about her leave, based on the lack of FMLA notice provided to her by [Wackenhut]. Had she been appropriately apprised of her leave time, Plaintiff could have planned and structured her leave time differently. Thus, Plaintiff did suffer prejudice." (Jeff Nowak on April 11, 2013, Blog)

DOL plans to increase on-site FMLA investigations

Speaking at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition (DMEC), DOL Branch Chief for FMLA, Ms. Dawson, noted the DOL expects to increase the frequency in which it comes on-site during an FMLA investigation. While this method has been used infrequently, it will be ramped up for situations where an employer has a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.

Workers' Compensation
Injured worker due disability despite taking new job - Nebraska

Injured workers who leave their employer to take a better-paying job cannot lose their temporary total disability Workers' Compensation benefits, in part because their higher wages do not reflect their reduced earning capacity, the Nebraska Supreme Court has ruled.

An employee who worked for a medical technology firm, Becton, injured his shoulder in 2009 and initially his injury was believed to be a muscle strain. Although he left the company for a better paying job, he later found out that he had tears in his right rotator cuff and shoulder tendons and Becton paid for the surgery but declined to pay TTD benefits during the recovery period, contending that the employee could have continued to receive pay for light duty work if he had remained with Becton. Becton also declined to provide TTD benefits after a second shoulder surgery, which required the employee to stay off his new job.

Nebraska's Workers' Comp court found that the employee should receive TTD benefits of $11,308 for his two recovery periods. While Becton argued that the former employee was not eligible for TTD once he left the company because he did not take part in Becton's "aggressive" return-to-work program, the court ruled that program should not apply to former employees.

In its ruling, the Nebraska Supreme Court unanimously upheld the TTD ruling. The court found that a worker's eligibility for TTD benefits depends on his or her "diminished employability or impairment of earning capacity, and does not directly correlate to current wages."

The Nebraska high court also said Nebraska case law has found that employees should keep their TTD benefits even if they leave or are fired from their jobs.

Poor defense selection leads to reversal of denial of death benefits - New Mexico

The New Mexico Supreme Court reversed a lower courts decision on a Workers' Compensation death claim involving an off-duty police officer who drowned while saving a child in a river during a church outing. His employer and the insurance company denied the widow's claim, primarily on the basis that she had not filed for benefits within the allowable time frame. As a secondary reason, they determined that his death was not within the course and scope of his employment as a police officer. Lower courts supported that contention.

The widow was able to document that the delay was due to the police department's promises that "they were taking care of all the paperwork." Now the case will be returned to the New Mexico Court of Appeals to determine if Kevin Schultz died within the course and scope of his employment as a police officer. The attorney for the widow intends to argue that the police department has bestowed recognition on the officer who "died while performing the act of a selfless policeman."

Idiopathic fall from standing position to brick floor not compensable - Oregon

An Oregon appellate court recently held that a cook/cashier's fall from a standing position onto the brick floor of her workplace did not arise out of her employment because the cause of the fall was idiopathic in nature. The court made the distinction between falls that are "idiopathic" in nature and those that arise "from an unknown cause." In the case of the former, the associated injuries could be said to arise out of the employment only where the consequences of blacking out were made markedly more dangerous by the employment, such as falling from a ladder. The injured employee argued that a carpeted surface would have resulted in less severe injury than the brick floor and the employer's requirement that she stand while working contributed to the injury. The court held that, as a matter of law, these employment-related factors did not greatly increase the danger or seriousness of injury.

Injured worker who failed drug test not entitled to compensation - Pennsylvania

In Brewer v. Workers' Compensation Appeal Board (E2 Payroll & Staffing Solutions), an employee injured his lower back when he was pinned by a forklift. Consistent with its policy, the employer had the hospital administer a drug test after the injury. When the employee failed the drug test, he admitted he used cocaine and marijuana a few days before the work injury. Since the employer has a zero-tolerance policy on drug use, he was fired immediately.

The employee filed a Claim Petition, seeking payment of his lost wages. The Workers' Compensation physician testified that the employee was capable of working at a light duty position. The employer representative noted that light duty work would have been available, had the injured employee not been terminated because of the failed drug test. The Workers' Compensation Judge (WCJ) granted the Claim Petition, but suspended wage loss payments, finding the loss in earnings to be unrelated to the work injury. This was affirmed by the Workers' Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed, ruling that his loss of earnings was caused by his misconduct, not his injury.

Injuries from random attack on telecom worker compensable - Rhode Island

A telecommunications worker should receive Workers' Compensation for an attack by a stranger because the assault classifies as a "street peril" of his work, the Rhode Island Supreme Court has ruled.

A Verizon employee was working in a neighborhood with a documented high crime rate near a man who was yelling, "the country is going down," among other phrases. When he spoke to the man, the man hit him over the head several times with a piece of wood.

While the claim to cover the injuries and counseling sessions for emotional stress were denied by lower courts, the Supreme Court said that it recognizes certain "street perils" as risks of employment in limited circumstances. This case qualified as a street peril because it occurred on a public road, the court found.

"...employment for Verizon required that he park his work vehicle on public streets and then walk to and from his vehicle, as the tasks required," the ruling states. "It was in the course of returning to his work vehicle that he was assaulted on a public street, apparently randomly, by an individual whom the trial judge characterized as 'at least slightly off his rocker.'"

Nursing home worker's injury claim credible enough for compensation - Tennessee

A nursing home worker who fell after saying she stepped in an unidentified sticky substance was credible enough to receive Workers' Compensation benefits, even though her supervisors found no work-related cause for her fall, the Tennessee Supreme Court ruled.

The employee of Allenbrooke Nursing and Rehabilitation Center L.L.C. in Memphis fell while walking and was later diagnosed with a broken shoulder and a bruised knee and toe. While her supervisors testified that they found nothing on the floor after the fall, the employee argued she fell after her foot became stuck in an unidentified sticky substance on the floor. One supervisor said the employee was wearing large "Croc-type" shoes, which were prohibited at Allenbrooke because they could create falling hazards.

The Tennessee Supreme Court upheld the trial court's decision in favor of the employee, noting the employee to be credible when she testified that an unknown substance on Allenbrooke's floor caused her fall. The trial court concluded that the nursing staff could have tracked away whatever substance was present on the floor.

Worker entitled to additional training benefits beyond 80 weeks - Wisconsin

In an unpublished decision, Menard, Inc. v. State of Wisconsin Labor and Industry Review Commission, No. 2012AP1278, the Wisconsin Court of Appeals held that a planogrammer was entitled to additional vocational retraining benefits beyond the 80 weeks awarded by the administrative judge to obtain a bachelor's degree. While the employer argued that the plannogrammer should not be entitled to additional retraining benefits because of his "frequent revisions to his course of study," the "leisurely pace" of his studies, his "failure to mitigate retraining expenses" and a felony history that was an obstacle to employment, the court disagreed.