Is This Retaliation or Discrimination? Q & A with Derek D.

Academy Member and book buyer Derek D. and I have been talking about how his bullying boss has gone over the line and started to infringe on Derek’s employee rights.  Of course there is a long history, with the supervisor Trent taking a dislike to Derek back when Trent was himself a machine operator.

After his promotion, Trent made comments that [Read more]

Hostile Workplace Podcast #5: “I Don’t Know What FMLA Is, But I’m Sure YOU Don’t Qualify For It”

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Have you heard a supervisor admit they don’t know about something with one breath, but then proceed to tell you what you should do about that thing in their next breath?  Listen to one of my readers, Vicki, tell her story dealing with that exact scenario.

Once Vicki used FMLA, others at her work wanted to use FMLA leave too.  This angered her supervisors, who launched a campaign to “get” her.

Listen to Podcast Episode #5 now to hear how Vicki has fared against her company’s attack (and don’t expect a nicey nice happy ending).

You can listen to Podcast #5 through the player here on UndercoverLawyer.com.

Or, if you have iTunes you can click on the link below to listen there and subscribe to the podcast for free:

http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741

The Quick Tip for this episode is an update on the subject of Male to Male sexual harassment. New cases are being filed against restaurants you’ve heard of.

Finally, the Hostile Workplace Podcast now has a listener comment line: (360) 450-5750.

After listening to the show call in and let us know what you think of Vicki’s story, or call in and share your own workplace story. You may find yourself on the front page of the iTunes “Careers” section!

Is Time Off On FMLA Really Time Off? (Or, do you have to maintain your full-time work load while working a reduced-time schedule?)

Case: Lewis v. School District #70 (April 17, 2008)

A federal court case established for the first time that your employer can NOT expect you to maintain a full time work load when you are off work under the FMLA. The Federal Court of Appeals for the 7^th Circuit held that employees using their FMLA rights to be away from work cannot be held to the same requirements as full-time employees who are at work all day. Your company violates federal law if it tries to discipline or fire an employee who is on FMLA leave because he or she is isn’t producing as much work as the employees who are not on leave.

A Good Worker Must Live Through Bad Times

The worker in this new case was Debra Lewis. Debra began working for Illinois School District #70 in September of 1997 as a bookkeeper and treasurer. For seven years she received good reviews and everyone agreed she performed her job well. Until 2004. When she started using FMLA leave. That changed everything.

In 2004 both of Debra’s parents became terminally ill. A dutiful daughter, Debra tried to care for her father at home. And it was at home, in May of that year, that he died. At the end of that same month Debra’s mother came home from the hospital. Debra’s mother then needed constant care from Debra.

As a result of all of this, Debra often missed work. Her immediate supervisor at the school district, Dr. Hawkins, gave Debra permission take this time off work in order to care for her parents. During the School District’s 2004 fiscal year, Debra missed 72.5 days of work out of a total of 242.

The Boss Has an Attitude Change Toward His Employee

When she was out Dr. Hawkins encouraged Debra to take her work home get it done whenever she could, including on evenings or weekends. She completed much of her work in this way. Dr. Hawkins complained that Debra’s “flex-time” schedule was forcing other employees to alter their schedules to cover for her. Dr. Hawkins also did not like that Debra was not available to answer questions during regular work hours.

The school board wanted to fire Debra for poor performance. Dr Hawkins, to his credit, expressed fear of FMLA liability. So instead firing her, Hawkins offered Debra 12 weeks of unpaid intermittent FMLA leave. Debra accepted.

Even though Debra was on unpaid intermittent leave, Dr. Hawkins still expected her to perform all of her regular work duties. The school board didn’t hire a part-timer or ask co-workers lend a hand. Debra worked nights and weekends to catch up with her work, but it was all unpaid.

The Conflict Takes a “Ludicrous” Turn For the Worse

The school board, at tape recorded meetings, said it wanted to fire Debra and called the FMLA “ludicrous” and a “fiasco.” The board told Dr Hawkins to build a case against her based on her “poor performance” so she could be terminated. Eventually, Debra was given a choice: resign or take a demotion and salary cut based on her poor performance.

Just like I recommend in Work Laws Exposed, Debra kept her job and then went on the offensive. She accepted the demotion offered by Dr. Hawkins, but then immediately filed an FMLA lawsuit. The school district argued that it had a legitimate non-FMLA reason to fire her: poor performance

The Conflict in Court: Who Won?

The first court said that Debra could be held to the same standards as regular full time employees. The Court of Appeals, however, reversed the lower court. The Court of Appeals stated that the School District could not have Debra working and being paid for a part time schedule (on FMLA leave), but require Debra to produce a full time amount of work. With this double standard the School District wasn’t really giving Debra FMLA leave at all. In fact, the District merely allowed her to do some work from home, but reduced her pay for the privilege.

That is not what the FMLA requires. The FMLA does allow an employer to not pay an employee for the periods the employee is out on medical leave. But if the employee is off work on unpaid leave, the employee must truly be relieved of their duties.

Undercover Lawyer’s Tips To Take Away:

1. Your employer must reduce the amount of work you are required to complete in proportion to the amount of time you are away from work when you use FMLA leave.

2. If your employer gripes and complains about the FMLA, immediately write down their exact remarks; then, sign and date your notes. Courts do not like employers who talk negatively about the law.

3. Your employer should arrange coverage for the work you are missing (from another employee or a temp employee); if no coverage is arranged, you may have an FMLA retaliation claim just like Debra Lewis did.

Do You Want Sundays Off Work?

Do you want to have Sundays off? Does your job require that you work on some Sundays, or every Sunday, even though you would prefer not to? Now you can stay home from work on Sundays whether your boss wants to let you or not. But there is a catch:

You have to tell your boss that you are going to stay home and watch TV.

That’s right, a court recently ruled that an employer had to accommodate a worker who wanted to stay home from work on Sundays and watch TV – church TV. The worker, a woman named Kimberly Bloom from Pennsylvania, asked to be excused from her grocery store cashier position on Sundays for “religious reasons.” But she did not want the day off of work to go to church. She wanted the Sunday off so she could stay home and watch church on TV and spend time with family members.

In this case (which is called EEOC v. Aldi, 2008 U.S. Dist. LEXIS 25206), a court ruled that the grocery store where Ms. Bloom worked had to do more than just allow her to try to find a co-worker to voluntarily swap shifts with her. Ms. Bloom had explained to her boss that due to her religion, she could not work on Sundays and she could not encourage co-workers to work on Sundays either (by trading shifts with her). The Aldi grocery store refused to excuse Ms. Bloom from working the entire day unless she found a co-worker to cover her shift. Aldi did, however, say that she could come to work late on Sunday so she could attend a church service before her shift started. Ms. Bloom then explained to her boss that she did not go to church on Sundays. She watched church services on TV, read her Bible, and spent time with her family. Her boss did not believe that Aldi had to excuse Ms. Bloom from work so she could stay home and watch TV and spend time with her family.

The Showdown

The next Sunday came. Ms. Bloom did not try to find a co-worker to trade shifts with her. Aldi did not excuse her from working that Sunday. Ms. Bloom did not show up for her Sunday shift. Then the next Sunday arrived. Again Ms.Bloom did not try to find coverage for her Sunday shift. Again her boss at the store did not excuse her. And again Ms. Bloom did not show up for work. Aldi fired her. Ms. Bloom quickly fired back, filing a religious discrimination complaint with the EEOC against Aldi. As I explain in detail in Work Laws Exposed, filing a complaint with the EEOC or your own state’s Labor Bureau can save you tons of money compared to hiring a lawyer. Even better for Ms. Bloom, the EEOC decided it would pursue her complaint against the grocery chain Aldi in court, and the EEOC’s own lawyers would handle the case.

The Legal Standard

According to federal law, employers must:

“[R]easonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.”

When the case went to court the lawyers for Aldi made three arguments:

<!–[if !supportLists]–>1. <!–[endif]–>Aldi argued that it did “reasonably accommodate” Ms Bloom by allowing her to search for a co-worker willing to trade shifts with her;

<!–[if !supportLists]–>2. <!–[endif]–>Aldi claimed that Sunday shifts were a core job function of cashiers like Ms. Bloom, and that waiving Sunday shifts for her would be an “undue hardship” on Aldi because it would have to waive that requirement for other cashiers too; and,

<!–[if !supportLists]–>3. <!–[endif]–>Aldi argued that since Ms. Bloom did not attend church in person on Sundays, her desire not to work on that day was a personal desire, not a religious conviction.

Bloom v. Aldi: Who Won? Here’s how the court responded to Aldi’s three arguments:

<!–[if !supportLists]–>1. <!–[endif]–>The grocery store’s shift-swapping policy was not a reasonable accommodation because Ms. Bloom “established that she sincerely believes that it is a sin to work on the Sabbath or to ‘support’ another person working on Sundays.”

<!–[if !supportLists]–>2. <!–[endif]–>Aldi did not present evidence that it needed every grocery cashier available to work Sundays in order to remain open on Sundays. Also, Aldi did not present evidence that so many of its cashiers would ask for Sundays off because of their religious convictions that Aldi would not be able to remain open on Sundays;

<!–[if !supportLists]–>3. <!–[endif]–>The court ruled that Ms. Bloom did not have to attend church services in person in order to claim “religious” discrimination. The court stated that “Church attendance or membership in a particular sect is not necessary to assert a [religious discrimination] claim.”

The Fallout

After ruling in Ms. Bloom’s favor, the court went even further and stated that Bloom could seek punitive damages. These are the “punishment” damages that result in multi-million and multi-billion dollar verdicts that make headlines. Punitive damages were possible because Aldi failed to train management about avoiding religious bias.

The court also said that employers must make a good-faith effort to accommodate an employee’s religious based request. Aldi, however, just kept parroting it’s “you find a co-worker to trade shifts with” policy – which is not an effort to accommodate an employee. This case is surprising because the federal courts have historically not been very supportive of employees who ask for “reasonable accommodations” based on the employee’s religion. This court, however, was very supportive of Ms. Bloom’s claims and so was the EEOC. This may be a change in direction, or it may be an anomaly. Subscribe to the Undercover Lawyer’s Insiders List (green box on the right) and I will keep you apprised of whether this trend continues, and of the all the latest tips, tricks, and cases that affect your rights at work.