Unintended FMLA Retaliation?

medicalleaverequestThe Family Medical Leave Act is nothing new, and neither are the difficulties, issues and paperwork that comes with it.  Most likely, at one point or another, the FMLA has caused a problem for you and your company.  Maybe you had questions about paying an exempt employee when they take intermittent FMLA leave after using up all of their vacation and sick leave.  Or maybe you had a “difficult” employee take FMLA leave just as you were getting ready to terminate them, leading to questions about when and how to go about the termination (or maybe you just let them go and are currently looking down the barrel of a retaliation lawsuit).

The FMLA forbids an employer from retaliating against employees that takes FMLA leave.  It seems fairly simple that you cannot terminate an employee because your employee took FMLA leave to take care of a sick child, undergo back surgery or have a baby.  Unfortunately, things are not always that cut and dry.  And frankly, with the FMLA, they are almost never cut and dry.

The situation is much more difficult where your employee takes three months off for surgery and returns without incident.  However, a few months later you determine that a few employees need to be laid-off.  Using some sort of performance metric, you determine that the employee who took the FMLA leave is at or near the bottom of the list.

Now if this employee is typically underperforming or problematic (and you have documentation to that effect), then laying off the employee should not expose you to liability.  You probably are not that lucky, so we will assume that the employee who took FMLA leave is a middle-of-the-road performer in past years and it appears that he or she only slipped to the bottom of the performance list because they missed three months of work.

If you lay-off this employee, you may be exposing your business to an FMLA retaliation lawsuit.  The employee will allege that, while you claim the layoff was for performance reasons (with documentation!), the only reason for the performance issues was the valid FMLA leave.

Dealing with the FMLA is almost always difficult, and potential retaliation lawsuits only add another wrinkle for human resources to consider.  As a result, its almost always a good idea to sit down with legal counsel if you are considering the termination or layoff of any employee who has recently taken FMLA leave.

To Handbook or Not to Handbook

Terrible Shakespeare paraphrasing aside, the question of whether or not an employee handbook is necessary has been discussed, sometimes heatedly, on a number of occasions. It is easy to see why the employee handbook is ostracized, many are long, boring, heavy and complicated, to the point where an employee needs to hire his or her own legal counsel to parse through the legalese. This assumes, of course, that the employee is even reading the handbook.

I count myself as a proponent of employee handbooks, and not because I write them. If you have read any of my other blog posts, you will notice that I am a firm advocate of clear communication with employees.

Many employee handbooks forget the main purpose of a handbook, to communicate the policies to the employee. For example, your vacation policy should only require a few sentences: how many days they get, the way vacation is accrued, and the policy for requesting vacation.

The contents of an employee handbook will always differ from business to business. Most employers want policies regarding time off, discrimination, and harassment. Your business may want or need to have a dress code, or a computer/social media policy; and the bulk of a handbook’s content should be specifically tailored to your business. However, one rule should govern handbook drafting: keep it as simple as you can. And I would be happy to discuss your particular handbook at any time.

Bringing the Playground to Work

Researchers have determined that workplace bullying may be more harmful to employees, and consequently employers, than sexual harassment. The hidden costs resulting from workplace bullying can be nothing less than staggering.

Workplace bullying is defined as repeated, unreasonable actions of individuals (or a group) directed towards an employee (or group of employees), which are intended to intimidate, degrade, humiliate, or undermine, or which create a risk to the health or safety of the employee.  Bullying can take many forms and may include invalid criticism, being treated differently than the rest of a work group, being sworn at, exclusion or social isolation, or even excessive monitoring or micro-managing.

While bullying can, at times, be difficult to recognize, there are a few indications.  Many organizations where bullying is prevalent show an increase in grievances, sick leave and disciplinary actions. A 2011 Careerbuilder survey reported that while 27% of workers have experienced workplace bullying, the vast majority did not report the abuse. Unfortunately, of the workers who reported the bullying, 62% responded that no action was taken by their employer to investigate or resolve the problem.

Bullying can have a profound effect on the victim or victims. They may experience extreme stress, reduced self-esteem, sleep disorders and depression in the short-term and long-term problems include chronic disease, including cardiovascular disease. Bullied employees tend to be less effective, in part because they are forced to expend time and energy coping with the bullying, and because they are more likely to utilize sick leave.

Bullying can have other financial effects on an employer as well.  Increased turnover, from bullied employees quitting, means an employer must pay to post a job opening, take time to review applications and interview applicants, and then take the time to bring new employees up to speed. Every time a bullied employee quits, the employer must expend time and money to replace them.  And, of course, the bullied employee may choose to sue the employer, causing the employer to incur legal fees and possibly damages.

I experienced workplace bullying from my supervisor at a previous employer. I was often excessively berated for asking questions, given unrealistic deadlines or projects above my experience level, and intentionally embarrassed in front of co-workers. I felt sick every time I drove into the parking lot each day, and it severely affected my work performance. The most difficult part was feeling like I had nowhere to turn for help. My coworkers would simply repeat the mantra “that’s just how he is” when I brought up the situation. Because he was my supervisor, I didn’t feel comfortable reaching out to human resources or anyone higher in the company’s hierarchy because I was afraid of making the situation worse. I didn’t know what to do, so I simply retreated into my office and tried to avoid contact, which did little to improve the situation.

In order to prevent situations like mine, or something worse, employers need to implement strong, clear anti-bullying policies. The policy should be included in the employee handbook and require the employee to sign, stating that they are aware of the policy. Employees need to be assured that they will not be subjected to retaliation for reporting bullying and they need to be provided with the person or, preferably, persons to whom bullying should be reported. As with any workplace policy, a disciplinary system must be put in place, and applied consistently to all employees, regardless of their place in the organizational hierarchy. As with any additions or changes to an employee policy, legal counsel should be consulted to ensure compliance with state and federal law.