Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

While the FMLA normally requires an eligible employee be reinstated to an equivalent position at the end of his FMLA leave, the employee has no greater right to reinstatement than if the employee had been continually employed.  Thus, there are several situations where an employee is not entitled to reinstatement.

First, where an employer conducts a layoff or reduction in force while the employee is on FMLA and would have been laid off had the employee not been on leave, the employer's obligation to reinstatement and continuation of benefits ends on the date of termination.

Second, employees hired for specific project or for a specified term, have no right to reinstatement after the termination of the project or specified term.

Third, employees who have obtained leave fraudulently have no right to reinstatement.

Fourth, employees who are unable to perform the essential functions of the position of employment at the end of leave are not entitled to reinstatement.  To avoid an ADA claim, the employee must only be denied employment if he or she cannot perform the essential functions of the position with or without reasonable accommodation.

Finally, employer's may deny reinstatement to salaried, eligible key employees when the denial of reinstatement (not leave itself) is necessary to prevent substantial and grievous economic injury to the operations of the employer.  Key employees are those salaried employees who are among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee's worksite.  Substantial and grievous economic injury sufficient to warrant denial of reinstatement to a key employee includes those situations where reinstatement would jeopardize the viability of the company itself.  Minor inconveniences and costs the employer would otherwise experience in the normal course of business, however, would not qualify.  Keep in mind that the employer must provide "key employees" with certain disclosures at the time the employee gives notice of the need for leave to be able to deny reinstatement.

While an employee's use of FMLA leave will normally entitled the employee to reinstatement to an equivalent position, keep these exceptions to the general rule in mind when managing leave programs.

Follow me on Twitter @RussellCawyer.

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Walter Olson at Overlawyered started they debate by asking “If I could press a button and instantly vaporize one sector of employment law…”  He answered age discrimination.  I'll let him defend his selection and you can read his explanation here. 

Jon Hyman and Daniel Schwartz weighed in that they would reform the depression-era outdated Fair Labor Standards Act and leave laws generally.  Both areas are ready for reform and simplification.  I asked my partners what area of employment law they thought most needed vaporizing (or at least reform).  One identified the varying mosaic of state immigration laws that are being passed across the country and that carry substantial (perhaps catastrophic) financial penalties for employing individuals not authorized to work in the U.S.  Another colleague identified the new health care law that requires employers to provide health plans or pay a penalty for each uninsured employee as an area of law that is stifling job growth --at least for small to mid-sized employers. 

My choice for vaporization is a little more specific.  I would target the FMLA regulations that limit how much information an employer can require from an employee on intermittent FMLA leave --particularly when the leave results from unexpected, anticipated and unscheduled flare-ups of serious health conditions.  These limitations place unreasonable restrictions on an employer's ability to manage and identify intermittent FMLA abuse.  Employers face regulatory barriers in determining whether the employee's absence on Friday was a result of his migraine headache (for which he was approved to take intermittent leave) or because he stayed out too late with friends carousing.  Verifying, in a meaningful way, that employees are using intermittent FMLA leave for approved purposes should not be prohibited or even discouraged.

If you think a particular area of employment law needs vaporizing (or at least reform), post it in the comments below and I'll publish them to continue the debate.

Follow me on Twitter @RussellCawyer.

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The U.S. Supreme Court will decide next term whether it is law enforcement's warrantless placement of GPS devices on a suspect's vehicle amounts to an unlawful search or seizure in violation of the Fourth Amendment.  The Fifth Circuit has already authorized law enforcement's use of this warrantless tactic.  Similarly, a New Jersey court has blessed a spouse's use of GPS tracking technology to gather evidence of her partner's infidelity in preparations for a divorce proceeding. 

One of the most frustrating human resources issues to manage is proving the case against an employee who is suspected of abusing intermittent FMLA. I'm not referring to the intermittent use of FMLA that is scheduled or reasonably anticipated.  I'm talking about the unscheduled, unanticipated use of intermittent FMLA where the employee calls in shortly before the start of his scheduled shift (normally right before or after a weekend) to report an absence that is due to a serious health condition.  This can occur frequently with certain respiratory conditions or migraine headaches.  How can an employer confirm that the employee is really absent on these occasions for the serious health condition and not because the employee stayed up too late the night before?

The recent cases highlighting law enforcement's use of GPS tracking technology (without a warrant) to track persons of interest made me start wondering about the legality of an employer's use surrepticious use of GPS tracking technology on an employee who is suspected of intermittent FMLA abuse.  A search of the reported cases did not uncover any cases where an employer use GPS technology to prove an employee fraudulent use of FMLA leave.  However, there are several reported cases where employers have used private investigators to follow employees to prove a case of FMLA abuse.   Is the placement of tracking technology much different than that so long as the potential tracking is disclosed to the employee in either handbooks or other notices?  Would it make a difference if the GPS device is first placed on the employee's vehicle when it is on public streets or even the employer's parking lot?  Would an employer have more latitude to track the employee if the employee is using an company-owned vehicle?  Could an employer subpoena the GPS data file, in the defense of an FMLA case, from the employee's Onstar system installed in the employee's car?  All of these questions are interesting and I confess I don't readily know how a court would rule on these issues.

The legality of this conduct likely depends on the state where the tracking occurs (different states have different levels of privacy protection and some states --not Texas --have private causes of action for constitutional violations).  The circumstances under which the GPS tracker was placed (i.e., was the employer able to place the device on a vehicle when it was on public or employer-owned property or on the employee's property) and ownership of the vehicle (i.e,. company or employee owned) are also likely key questions.  Employer disclosure of the practice, in either handbooks, policies or elsewhere, could also be important and perhaps determinative.  Certainly, this practice is fraught with interesting potential legal issues.  

If you have had any experiences where an employer used Onstar or GPS tracking technology to prove an employee's abuse of FMLA leave, I'd like to hear about it in the comments.

Follow me on Twitter @RussellCawyer.

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If I had a dollar for every time I reminded a client that "no good deed goes unpunished," my childrens' college funds would be flush and I'd be planning to retire early.  The recent case of Terwilliger v. Howard Mem. Hosp. (W.D. Ark. 1/27/2011) reminds us that employees will often attempt to ensure that "no good deed goes unpunished" and employers are often "darned if they do and darned if they don't."

Fellow bloggers have comprehensively covered Terwilliger (See Ohio Employer's Law Blog, The FMLA Blog, FMLA Insights, Employment Law Matters) and so only a brief summary is necessary.  In that case, Terwilliger was out on FMLA leave for a back-related injury.  She testied (which the court was required to accept as true) that her supervisor called her weekly while on leave to inquire when she was going to return to work.  As a result, she felt pressured by these calls to return to work.  Because of this testimony, the Court denied the employer's motion for summary judgment finding that a fact-issue existed on Plaintiff's claims that these calls chilled her willingness to and interferred with the exercise of FMLA rights. This is probably the technically correct ruling at the summary judgment stage, but at trial I suspect a different story will be told where the jury, unlike the court, will not be required to accept the plaintiff's version as true.

At trial, I suspect the supervisor will testify that, if she called at all, she was merely calling to check on how the plaintiff was doing and to check on her well-being.  Should that be illegal?   Imagine, if the supervisor never called to check on the employee.  The employee can then complain, "They never even bothered to call to see how I was doing."  Instead, because the supervisor called to check on the employee, she complains that her FMLA rights were interferred with.  Terwilliger teaches that employers cannot always predict how their actions will be spun by creative lawyers representing employees.  Instead, supervisors should ensure they follow the law; treat employees consistent with the employer's policies; and in a manner in which they would want to be treated.  Leave it to the company lawyers to take the spin out of the employee's efforts to punish good deeds.

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The Fifth Circuit issued an important opinion on an issue (i.e., judicial estoppel) that arises frequently when litigating employment disputes.  The issue is whether an innocent bankruptcy trustee is judicially estopped from collecting assets, on behalf of the creditors, that were not disclosed by the debtor in his bankruptcy filings.  The court of appeals held that, like the debtor, the innocent trustee and creditors were also judicially estopped from recovery by the debtor's misconduct. 

The appeal arose from a $1 million-plus judgment an Arlington firefighter obtained against the City  on a claim arising under the Family Medical Leave Act (FMLA).  The Fifth Circuit Court of Appeals affirmed the jury's verdict but remanded the case for a recalculation of damages.  You can read the opinion from the original appeal here.  During the appeal of the judgment, the firefighter filed a Chapter 7 bankruptcy petition seeking a discharge of $300,000 in debt.  Importantly, the firefighter failed to disclose million dollar judgment from his bankruptcy filings and schedules leading the creditors, the trustee and the bankruptcy court to believe it was "no asset" case.  The firefighter obtained a discharge of the debt.

When the City learned of the bankruptcy filing, it requested the court of appeals apply the doctrine of judicial estoppel to prevent the debtor-firefighter from collecting on the judgment.  The Fifth Circuit remanded the case to the trial court for a determination of whether judicial estoppel applied.  After several evidential hearings, the trial court concluded that the elements of judicial estoppel had been met.  However, because the doctrine of judicial estoppel is an equitable doctrine, the court concluded that it would be inequitable to penalize the trustee and the innocent creditors because of the firefighter's misconduct.  The trial court then fashioned a remedy that permitted the creditors to recover the amounts owed to them, but denied any recovery to the firefighter and ordered that any sums due pursuant to the judgment against the City over and above the debts owed the creditors reverted to the City --not the firefighter. 

The City appealed arguing that the trustee should also be judicially estopped recovering on the undisclosed judgment. The question raised by the appeal is whether the doctrine of judicial estoppel prevents not only the debtor who fails to disclose assets on his bankruptcy schedules, but also the innocent trustee and creditors.  The court held that, to protect the integrity of the judicial process, judicial estoppel bars both the debtor and the trustee from recovering on the assets that were not disclosed.  

You can access a full copy of Reed v. City of Arlington here.  Congratulations to my partner, Mike McConnell, who represented the City of Arlington.

UPDATE:  On August 11, 2011, an en banc panel of the Fifth Circuit reversed the panel's decision and held that judicial estoppel does not bar a blameless bankruptcy for pursuing a judgment that the debtor concealed during the bankruptcy and that the debtor is barred from pursuing.  You can read a copy of the opinion here.

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The exercise of sound judgment and the uniform, mechanical application of employment policies are not always synonymous. Every FMLA-covered employer in Texas, Mississippi and Louisiana should be interested in the Fifth Circuit’s most recent FMLA case resulting from an employer’s uniform application of its internal FMLA reporting policy. In Saenz v. Harlington Medical Center, the Court decided, what it characterized as a “close question,” that an employee does not necessarily have to comply with an employer’s internally created, heighted notice provision to maintain FMLA protection and that in some cases the employee need only comply with the FMLA’s more relaxed notice requirements. 

The plaintiff in Saenz, suffered from partial complex epileptic seizures that caused her to lose consciousness and become unable to perform her job. This normally incapacitated her for two days at time. Saenz requested and was granted intermittent FMLA leave for this seizure condition. Her employer, Harlingen Medical Center (“Harlingen”) had a policy that required employees to contact its FMLA administrator not later than two days after each leave period pursuant to the intermittent leave request. Under Harlingen’s policy, failure to provide the required notice could lead to a loss of FMLA protection. In the following six months, Saenz used intermittent FMLA leave eleven times and provided the required notice each time.

Thereafter, Saenz began suffering from depression and bipolar disorder that caused hallucination and disorientation. She was admitted the hospital and later committed to a behavioral center for three days of evaluation. Saenz’s mother contacted her daughter’s supervisor to advise of the symptoms and that Saenz would not be reporting to work.   While at the emergency room (in the same hospital where she normally worked), another Harlingen supervisor personally visited Saenz and observed some of her treatment. In the nine days during which she was incapacitated, Saenz was hospitalized, placed under a judicially created guardianship and eventually released into her mother’s care.

Ten days after first becoming incapacitated, Saenz called Harlingen’s FMLA administrator to advise of her depression/bipolar diagnoses and to discuss the five work absences she suffered as a result of her condition. She also requested approval for intermittent FMLA for these new conditions. Eight days later, Saenz received two letters. The first was from the FMLA administrator advising her that her intermittent FMLA leave request was being processed. The second letter was from Harlingen advising her that her employment was being terminated for excessive absenteeism. The termination letter expressly referenced her failure to comply with the two-day call-in policy. 

Saenz sued Harlingen for violations of the FMLA. The trial court dismissed the case holding that that factual issues existed as to whether the employer could rely on its heightened notice provision, namely, the employer’s actual notice of the severity of Saenz’s condition and the lack of evidence that Saenz affirmatively refused to comply with the company’s heightened noticed provisions. The court of appeals also found that fact issues existed as to whether Saenz gave sufficient notice of her need for leave as soon as practicable as required by the FMLA because the evidence showed that her mother told two supervisors of her hallucinations; at least one supervisor visited her in the hospital emergency room and observed Saenz’s treatment; and her mother stayed in constant contact with the employer as to the status of Saenz’s treatment. Based on these facts and this evidentiary record, the court of appeals remanded the case to the trial court for further proceedings.

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In its first FMLA opinion, the Texas Supreme Court held that agencies of the State of Texas cannot be sued for FMLA violations arising out of an employee's FMLA leave taken for his own serious health condition.   In University of Texas at El Paso v. Herrera, the Supreme Court of Texas held that, unlike the family care provisions of the FMLA, Congress did not abrogate Texas' sovereign immunity for violations of the FMLA self-care provision and therefore the State of Texas cannot be sued for such violations.

The underlying facts are as follows.  Alfredo Herrera was an HVAC technician for the University of Texas at El Paso.  Herrera sustained a work-related injury to his elbow requiring a nine month leave of absence.  One month after he returned to work, his employment was terminated.  He sued alleging that he was terminated for taking personal medical leave under the self-care provision of the FMLA and exercising his First Amendment rights by complaining about unsafe work conditions.  UTEP challenged the court's jurisdiction over the claim asserting that it was barred by sovereign immunity.  The trial court and court of appeals found that jurisdiction existed. 

Acknowledging that the U.S. Supreme Court held that Congress effectively abrogated state sovereign immunity for the FMLA family-care provisions, the Texas Supreme Court found that there was no evidence in the FMLA legislative history or Congressional findings that women took more personal medical leave (or were thought to do so) than men.  Because, according to the Court, the self-care provisions of the FMLA were not targeted at an identified pattern of gender discrimination on the part of the States, Congress overreached when it attempted to apply the self-care leave provisions to the states. 

While the opinion analyzes complex issues of state sovereignty and Congressional findings, the simple take away from Herrera is that the State of Texas cannot be sued for FMLA violations arising out of an employee's need for leave for self care.   

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The U.S. Department of Labor has "clarified" the reach of the FMLA by offering an interpretation of the meaning of "son or daughter" under the FMLA.  Under the FMLA regulations, a "son or daughter" is defined as:

a biological, adopted, or foster child, a stephchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and 'incapable of self care because of a mental or physical disability' at the time that FMLA leave is to commence.

The new Administrator's interpretation (and first issued under the FMLA) provides some examples where the the Department would find a parental relationship despite the absence of of a biological or legal relationship such as:

• where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child;
• where an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth ;
• where an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

You can access a complete copy of the Administrator's interpretation here.

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President Obama signed the 2010 National Defense Authorization Act setting the budget for the Department of Defense for fiscal year 2010.  The NDAA amends the Family & Medical Leave Act and is effective immediately.  In relevant part, the NDAA amends the FMLA to extend its military leave entitlements.  The FMLA is amended, in relevant part, as follows:

• Expands the exigency leave provisions (which had been limited to family members of reservists) to make clear that employees make take up to twelve (12) weeks of unpaid leave for qualifying exigencies to family members of any member of the armed services on active duty.
• Provides up to twenty-six (26) weeks of unpaid caregiver leave to care for any veteran family member (i.e., child, spouse, parent or next of kin) who is undergoing medical treatment, recuperation or therapy for a serious illness or injury that was sustained or aggravated in the line of duty  and was a member of the Armed Services during the five (5) period preceding the date on which the veteran undergoes the treatment, recuperation or therapy.   

Employers should amend the FMLA policies in their handbooks and procedures to incorporate these changes and train those responsible for administrating leaves of absences on these important changes.

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