Rigid Leave Policies - A Formula for
Companies often maintain a policy that provides that
employment will terminate if an employee fails to return from a medical leave
of absence within a given period of time. Generally, those periods appear to be
generous, sometimes as long as a year. Employers reason that the employee had
enjoyed the full FMLA
benefits and thus the employee lacks statutory job protection. By the leave
expiration date, the employee may have exhausted workers' compensation leave
benefits. Employers sometime set the time limit to correspond with the
commencement of long-term disability benefits, if they are available. Despite
the seemingly long period of time, the employer must still recon with the ADA and its state
and local equivalents.
Within the last few years, the EEOC has been aggressively
pursuing employers who enforce inflexible medical leave policies, regardless of
the length of the leave or whether medical leaves are treated in the same
manner as other non-medical leaves.
The EEOC has taken the position that the ADA requires
employers to provide a reasonable accommodation to employees with disabilities
and the determination of a reasonable accommodation must be made on a
case-by-case basis. Since the courts have recognized that granting a leave of
absence might be a reasonable accommodation, the employer must engage in the
interactive process, including considering requests for an extension of the
leave or returning to work with an accommodation. The employer may then
evaluate whether the requested accommodation imposes an undue hardship. The
EEOC contends that inflexible leave policies ignore the obligation to make
reasonable accommodations on a case-by-case basis.
Rather than maintaining an inflexible medical leave
policy, companies should consider:
a flexible or target expiration date for medical leave.
employees within a reasonable period of time before the expiration of the
leave period that the leave is about to expire.
whether the employee needs additional time off and, if so, how long. The
employer may require the employee to provide a statement from a physician
supporting the need for additional leave and the amount of additional time
whether the employee's request for accommodation is reasonable and whether
it can be granted without an undue burden.
Fifth Circuit Decides That Protection
From a Hostile Work Environment Is Not a "Benefit of Employment" for Service
Members Under USERRA
Theodore T. Eidukas
Members of the armed forces are generally protected from
discrimination in their employment by civilian employers under the federal Uniformed
Services Employment and Reemployment Rights Act (USERRA). In addition to
individual state laws that may protect service members, USERRA makes it illegal
for an employer to deny a "benefit of employment" to a member of the armed
forces based on such membership or the employee's performance of service. Its
primary purpose being to encourage people to join the military reserves, USERRA
claims have increased in frequency during the past decade as reservists have
been called to long stints of active duty due to U.S. military commitments in
Afghanistan and Iraq.
District courts and the federal Merit Systems Protection
Board had concluded that employees could bring claims under USERRA based on
allegations that employers had created a "hostile work environment" for
employees who are members of the armed services - i.e., that claims could be
brought where employers allowed harassment of or derogatory comments to be made
to employees with respect to being a member of the military or due to their
need for time away from work to perform military service. No circuit court had directly
addressed the question of whether such conduct violated USERRA, however, until
the Fifth Circuit's March 22, 2011 decision in Carder v. Continental Airlines, Inc., 636 F.3d 172
(5th Cir. 2011) [the enhanced version of this opinion is available to lexis.com
subscribers] (Carder). In Carder, the Fifth Circuit
held that employees cannot bring claims under USERRA based on allegations that
an employer has created a hostile work environment through harassing,
discriminatory, or degrading comments or conduct related to or arising out of
the employees' military service.
The pilot claimants in Carder had alleged that the
management of their employer, Continental Airlines, had placed "onerous
restrictions" on taking military leave and made derisive and derogatory
comments to the pilots regarding their military service. The Fifth Circuit
affirmed the dismissal of a claim that this conduct created a hostile work environment
prohibited by USERRA. The Fifth Circuit pointed to the fact that the language
of USERRA did not expressly refer to protection from "harassment, hostility,
insults, derision, derogatory comments or any other similar words." Further,
the court relied upon the fact that in choosing the language for USERRA,
Congress used the term "benefits of employment" rather than the phrase "terms,
conditions, or privileges of employment" that were used in both Title VII and
the ADA and previously used by the U.S. Supreme Court for deciding that those
statutes allowed hostile work environment claims. The Fifth Circuit in Carder
thus concluded that USERRA's protection of benefits of employment is narrower
than the protection afforded by Title VII and the ADA, and did not allow for
claims that an employer had created a hostile work environment based on service
in the military.
The Fifth Circuit did leave open the possibility,
however, that such conduct could form the basis of a constructive discharge
claim under USERRA if it created working conditions that were so intolerable
that a reasonable person would feel compelled to resign, acknowledging that
such claims had been recognized by other courts. The court stated that its
decision was meant to bar only actions for the "lesser levels of harassment
that usually form the basis for hostile work environment claims."
AT&T Mobility LLC v.
Concepcion- (More) Good News for Employers?
The Supreme Court, led by Chief Justice John Roberts,
continues to render decisions favorable to employers and continues to beat back
attempts led largely by plaintiffs' attorneys and consumer activists to limit
the use of mandatory arbitration as an alternative to civil litigation in
The latest chapter in this ongoing saga was written on
April 27, 2011, when the United States Supreme Court announced its 5-4 decision
in AT&T Mobility v. Concepcion. What was the case
about and what - if anything - does it mean for employers?
In 2002, Liza and Vincent Concepcion had signed up for
cell phone service from Cingular, receiving what was advertised as two
"free" cell phones in the process. In the paperwork initiating
service, they were required to agree to arbitrate any disputes they had with
their new provider. They also were required at the time to pay $30.22 for
"sales" tax for the imputed value of their two "free" cell phones.
The Concepcions apparently did not think paying $30.22
for "free" phones was fair and subsequently brought a claim for false
advertising and fraud in federal district court in Southern California. In
response to the Concepcions' complaint, pointing to their arbitration
agreement, AT&T asked the federal court to compel arbitration of the
lawsuit. And as the arbitration agreement had a provision that precluded
class-based claims, any arbitration between AT&T and the Concepcions would have
to proceed purely on an individual, rather than class, basis.
The Concepcions opposed AT&T's request, arguing the
arbitration agreement's prohibition of class claims rendered the agreement
"unconscionable," or illegal, and unenforceable, as a matter of California law.
Their point was simple: By both requiring arbitration and precluding class
actions, AT&T was in effect trying to insulate itself from attempts by
consumers and their class action attorneys to aggregate many small individual
claims into a class action with big enough damages at issue to make AT&T
pay attention - and change its practice. In making this argument, the
Concepcions pointed to a 2005 decision of the California Supreme Court in Discover Bank, which had found that arbitration
agreements containing bans on class actions seeking aggregation of many small
recoveries are generally unenforceable under California law as unconscionable
The Concepcions were able to convince the trial judge to
rule in their favor as well as the Ninth Circuit Court of Appeal, the federal
court of appeal with jurisdiction over California. They could not, however,
convince a majority of the Supreme Court. In an opinion written by Justice
Scalia, a Supreme Court majority composed of the four "conservative" justices
(Chief Justice Roberts plus Justices Scalia, Alito, and Thomas) and the "swing"
justice (Justice Kennedy) found that the California Supreme Court's Discover
Bank decision impermissibly "discriminated" against arbitration authorized
by the Federal Arbitration Act and was therefore "preempted" by federal law.
The "liberal" members of the Court (Justices Breyer,
Ginsburg, Kagan, and Sotomayor) disagreed. They felt that under the Federal
Arbitration Act it was perfectly permissible for a state Supreme Court to find
as a matter of state law that a general statute prohibiting unconscionable or
exculpatory contract provisions could preclude the agreement provisions that
AT&T had sought to enforce against the Concepcions.
What Does AT&T Mobility v. Concepcion
Mean for Employers?
It is unlikely this case will be the last word on the
issue. The Ninth Circuit Court of Appeal - which is dominated by "liberal"
judges - has had a running battle with the Supreme Court for almost two decades
regarding whether or not to expand mandatory arbitration, and the California
state courts may well take another crack at invalidating class action waivers
in arbitration agreements using another legal rationale not precluded by this
That said, so long as AT&T Mobility is not
somehow circumvented, it may prove a tremendous boon for employers struggling
to defend and prevent class action employment litigation.
Based on the behavior of the Justices during the oral
argument of the case, it is already expected that the Supreme Court's
upcoming decision involving a nationwide class action against Wal-Mart may
throw some sand in the gears of a current juggernaut of class actions already
attempting to raise claims of systemic discrimination based on sex and race. AT&T
Mobility does the same thing. Particularly in the area of wage and hour
class actions, AT&T Mobility should provide some long-awaited music
for the ears of employers swamped by wave after wave of wage and hour class
actions raising ever more technical, and "creative," legal theories.
How is this? Simply put, at least potentially, every
employer big enough to face significant class action litigation risk (generally
those with more than a couple dozen employees) can now have its employees sign
an agreement to arbitrate as a condition of employment - and furthermore,
require that any claim brought in arbitration be an individual one.
As with everything in life, there are pluses and minuses
to arbitration. The one big minus - there is little if any, right of appeal -
generally even if the arbitrator clearly makes a mistake. AT&T Mobility
will not change this. The big pluses for arbitration have included the facts
that it generally is cheaper and faster and much more private, and the risk
associated with jury trials can be avoided. To these, AT&T Mobility
adds another plus: An employer may be able to use it to eliminate class actions
entirely. At least for some employers, that latter advantage could make the
decision to institute mandatory arbitration the proverbial no-brainer. This
much is clear - if an employer has not done so already, there seems to be no
better time than now to give the mandatory arbitration option a very close
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