Timing Is Everything: FMLA Protection in the Face of
Discharge
By Jeffrey S. Kopp
Scene: Employee has performance issues. Employee notifies his supervisor that he needs leave for a medical condition. Employee calls in sick for two consecutive days, a Thursday and Friday, and returns to work the following Monday. Upon return, the employee tells the supervisor that he will need additional days off and requests the FMLA application and certification paperwork. A few days later, the employer notifies the employee that he is being terminated for performance reasons. What is the potential liability for the employer?
This hypothetical is commonplace. Indeed, in Spakes v. Broward County Sheriff's Office (http://tinyurl.com/3fozxx5), the federal Court of Appeals sitting in Atlanta upheld a jury verdict in favor of an employee who asserted FMLA claims against her former employer. In that case, a jury awarded the employee, Diane Spakes, back pay, prejudgment interest, liquidated damages, five years of front pay, and attorneys' fees after finding the employer interfered with Ms. Spakes' FMLA rights. Her employer, the sheriff's office, terminated Ms. Spakes less than a week after she requested FMLA to treat a medical infection. Although the employer claimed it discharged Ms. Spakes for performance reasons, the jury found that Ms. Spakes gave proper notice for FMLA leave, she was terminated because of her FMLA request, and she would not have been terminated but for her request.
Notably, on appeal, the employer argued that the trial court erred by not requiring Ms. Spakes to prove a "causal nexus" between her leave request and her termination. However, the appellate court held that a causal nexus is not required for an FMLA interference claim, although the employer can raise lack of causation as an affirmative defense. Holding that the employer's motives are irrelevant, the court stated, "[t]o prove FMLA interference, an employee must demonstrate that he was denied a benefit to which he was entitled under the FMLA."
Spakes demonstrates the tightrope employers face when disciplining an employee who seeks to exercise or is exercising FMLA. The key to prevailing in these types of cases is documentation. Human resources managers and legal counsel should ensure that the employee's performance issues were well-documented — before the employee has requested FMLA. If a termination decision already had been made before the FMLA request, that decision should be memorialized in a memorandum that clearly states the reasons for the employee's discharge. Alternatively, employers should proceed carefully if an employee requests FMLA, but a final decision had not been made regarding termination — or, at a minimum, that progressive discipline had not already started before the FMLA request. Because it is less risky, the employer should consider whether to allow the employee to take the FMLA leave, and wait to address the performance issues upon the employee's return. Proceeding cautiously also will permit the employer to better document its legitimate reasons for discipline or termination and to ultimately prevail in an FMLA interference or retaliation case.
FCRA Amended to Require Credit Score Disclosures to Adversely
Affected Applicants/Employees
By Cherice Hopkins
Beginning next month, if an employer makes an adverse decision based, even partially, on the information contained in a consumer report, the employer must provide the affected individual with written or electronic disclosure of the following:
- The individual's credit score that was used by the company
- A range of credit scores possible under the credit scoring model used
- Each of the key factors that adversely affected the individual's credit score under the credit scoring model used, not to exceed a total number of four (if the number of inquiries made with respect to the credit report is a factor, it is not be counted toward the four)
- The date the credit score was created
- The name of the entity or person that supplied the company with the credit score, or that provided the credit file from which the score was created
These additional requirements are imposed under the Dodd-Frank Wall Street Reform and Consumer Protection Act's amendments to the Fair Credit Reporting Act (FCRA) (http://tinyurl.com/2g9yce).
The purpose of the FCRA is to protect consumers by ensuring fairness and accuracy in credit reporting. The Dodd-Frank Act, which provides for various changes to financial regulations, amended Section 615 of the FCRA (http://tinyurl.com/2g9yce), which governs the obligations of users of consumer reports. In an employment context, a consumer report is any communication of information by a consumer reporting agency that bears on a prospective or current employee's "credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living" and is used or is expected to be used as a factor in considering the individual's eligibility for employment purposes. See 15 U.S.C. § 1681(d) (http://tinyurl.com/3ksqq9h). Section 615(a) is applicable to many employers as it has become common practice for employers to conduct background checks on prospective and current employees. Such screenings generally produce information that falls within the definition of a consumer report.
All of these new requirements are in addition to the existing notice requirements employers must give to job candidates or employees. Some of the current obligations of employers include providing contact information for the consumer reporting agency that provided the consumer report; information about the applicant/employee's right under the FCRA to obtain a free copy of his/her consumer report from the consumer reporting agency if he/she requests it within 60 days of receiving the notice; and the consumer's right to dispute the accuracy or completeness of information with the consumer reporting agency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.