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Family Medical Leave Act (FMLA)

The following two cases demonstrate the need for proper supervisor training, including a collective, unified and consistent message to employees.

Supervisor's ill-considered e-mail forms basis of FMLA lawsuit

Recently, the 7th U.S. Circuit Court of Appeals overturned the dismissal of an employee's FMLA lawsuit and sent the case back to the lower court for further proceedings. A jury will now decide the issue of whether the individual's employment termination was based on his announcement that he was going to take four-to-six weeks of leave time for knee replacement surgery.

William Shaffer was the Director of Leadership Communications for the American Medical Association (AMA) when a reduction in force took place in 2008. Shaffer's boss indicated that it would be an "obvious choice" to eliminate another employee's position and he did not believe Shaffer should be terminated.

After Shaffer asked for FMLA leave for knee replacement surgery, the supervisor changed his tune, recommending that Shaffer's position be eliminated. Specifically, he stated in an email to his superiors: "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact."

Although Shaffer's request for leave may have had nothing to do with his actual layoff, the content of the email put him in a good position to argue that a jury should decide whether the need for leave was a motivating factor in the decision to eliminate the position. If he can produce evidence that he was fired to prevent his exercise of FMLA rights, he can succeed on an interference theory under the act.

Comments by HR Director can sink employer's chances of dismissing FMLA claim

The Seventh District Court of Appeals found in the case of Makowski v. SmithAmundsen LLC, that remarks by an HR Director could be direct evidence of pregnancy discrimination and a violation of FMLA. A law firm marketing director took FMLA leave just before the birth of her child. While she was on leave, her supervisors informed her that her position was eliminated as part of an organizational restructuring and terminated her employment. When she came to work to pick up her belongings after being fired over the phone, the human resources director told her she was fired because she was pregnant and took medical leave. She also told her that others who were pregnant had been discriminated against, and that she should consult with a lawyer to pursue a possible class action lawsuit.

She filed suit, alleging pregnancy discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act; interference with rights under the FMLA; retaliation under the FMLA; and a violation of her right to a bonus under the FMLA. The district court granted summary judgment in favor of the defendants. The Seventh Circuit reversed, arguing the statements allegedly made by the human Resources Director fell within the scope of the HR director's employment and should have been admitted as nonhearsay.

Workers' Compensation

Workers' Compensation is exclusive remedy for construction worker working on bosses' home - California

A construction worker who injured himself while working on the roof of his boss's new home cannot sue for personal injury ruled the California Court of Appeal. Robert Clark, sole owner of R.G. Clark Construction Inc., hired his own construction firm to build his new townhouse in 2006. A worker who was instructed by Mr. Clark to build scaffolding to protect company employees while working on the home's roof, claimed there was not enough material to build a safe scaffold, and asked Mr. Clark to provide roof jacks instead for the project. Mr. Clark declined, and soon afterward, the worker fell off of the home's roof.

While the worker received Workers' Comp for his injuries and shortly returned to work, he sued arguing that Mr. Clark was acting on his own behalf when he chose not to provide roof jacks. But the appellate court said Mr. Clark was acting as an employer when he told employees to work without those materials.

Condition exacerbated by light duty can be claimed as new injury - Georgia

The claimant, an assistant pressman, suffered a work-related injury to his neck and upper extremities in October 2002, underwent carpal tunnel surgery and received Workers Comp benefits, including permanent partial disability, before returning to work on a light-duty basis in June 2003. Permanently restricted from lifting, pulling or pushing more than 15 pounds, the claimant was placed in various light duty positions that, according to the claimant, often exceeded the medical restrictions.

He filed a claim for medical and temporary total disability benefits after undergoing lumbar fusion surgery in October 2008, though he had been laid off in April of that year.

In its decision, the Georgia Court of Appeals found the claimant qualified for new benefits because he was "performing under new circumstances that were more strenuous and exceeded his light-duty work restrictions."

Assault and drug arrest not sufficient to terminate benefits - Louisiana

In Stonetrust Commercial Insurance Co. v. George, No. 46,560-WCA (La. Ct. App. 09/28/11). The Louisiana Court of Appeal held that an insurer improperly terminated a driver's benefits, entitling him to penalties and attorney's fees.

A log truck driver suffered neck pain and post-traumatic stress disorder after a motor vehicle accident in which two women were killed. Unable to work, he began receiving temporary total disability benefits. Later, he was arrested and charged with possession of marijuana with intent to distribute, resisting arrest, and battery of a police officer.

Upon reading of the arrest in the newspaper, the insurer terminated the driver's benefits, reasoning that he was capable of driving a truck if he could assault a police officer and deal drugs. The driver sought to have his benefits resumed. The Louisiana Court of Appeal held that the insurer improperly terminated the driver's benefits, entitling him to penalties and attorney's fees.

The court explained that a "reasonably reliable determination" could not be made from the newspaper article and that the article reported facts contrary to the arresting officer's testimony. Further, it argued that there was no medical basis for terminating benefits. At the time the insurer terminated benefits, the driver was being treated regularly and his doctor had not released him to return to work.

Video can be used to discontinue disability benefits - Pennsylvania

The Pennsylvania Commonwealth Court in B. Soja v. WCAB (Hillis-Carnes Engineering Associates) found that an employer's video surveillance disproved an employee's testimony regarding an ongoing back injury. While working as a manual laborer, the employee injured his back and later exacerbated the injury twice while working for two other employers. He received TTD benefits for one month in 2006, and filed for reinstatement later that year, claiming that he had constant back and leg pain and had to walk with a cane.

However, the employer presented a video from April 2008 that showed Mr. Soja walking around a salvage yard without a cane, lying on the ground to remove parts from a van, and throwing auto parts into the back of a truck.

The Workers' Comp judge granted TTD benefits to the employee from the date of his 2006 reinstatement petition to the date of the video's filming, saying that he failed to prove a continuing inability to work and Pennsylvania's Workers' Compensation Appeal Board upheld that ruling. The appellate court unanimously affirmed the previous decisions, saying Mr. Soja held the burden of proof about the extent of his injuries when he sought to reinstate his benefits.

The ruling noted that the video would have been insufficient evidence if the employer had sought to reduce compensation from TTD to partial disability benefits.

Separate legal entities cannot rely on Workers' Comp as exclusion remedy - Nebraska

An injured funeral home employee, who received Workers' Compensation benefits as a result of a fall down an elevator shaft, can sue her employer's real estate holding company for negligence, the Nebraska Supreme Court said, even though the company argued that Workers' Compensation was the exclusive remedy in her case.

Roper Real Estate owns the funeral home properties run by Roper & Sons where Darlene Howsden was an employee at the time of the accident. Roper Real Estate argued that Workers' Comp should be the exclusive remedy since the same principals, as Roper & Sons own the firm. A lower court decision found that Ms. Howsden could be considered an employee of the real estate firm and Roper & Sons, which would limit her remedy in the case to Workers' Comp benefits. However, the Nebraska Supreme Court said there was no evidence of dual employment that could prevent Roper Real Estate from being considered a third party in Ms. Howsden's injury.

"When two companies are corporations which benefit from legally recognized identities separate and apart from one another, they must also bear the responsibility and liability of such separation," the ruling reads.

Casino worker fall from chair while propping feet on desk not compensable - Nevada

The Las Vegas Sun reported that the Nevada Supreme Court ruled a casino worker who fell out of a chair while propping his feet on a desk isn't entitled to worker's compensation benefits.

The employee was a surveillance agent and monitored 38 television screens when he took a tumble in January 2008. He tried to put his legs up on his desk to help with circulation. The chair tipped over, and he fell to the ground. He maintains it was not his fault, and the chair was defective. But the court cited insufficient evidence that reclining behind the desk was within the course and scope of his employment.

Justices sent the case back to a hearing officer to determine if there was any written or implied prohibition against putting feet on the desk.