In an era when text messages seem more common than phone calls, it should come as no surprise that courts are now addressing when texts to supervisors are sufficient to provide an employer with notice of the need for potentially FMLA-qualifying leave. It appears that brief text messages are not enough and employers are not required to read between the lines. Whether the employer had a call-in policy (requiring the employee actually speak to someone) and whether the employee knew the proper way to request FMLA leave and did not do so appear to be significant factors in the analysis.
In an unpublished June 12, 2013 decision, the Fifth Circuit ruled that a text message requesting to be taken off 24-hour-call duty one night was insufficient to put an IT business analyst’s employer on notice that she was requesting FMLA leave to care for her father (Lanier v University of Texas Southwestern Medical Center). The analyst texted her supervisor that her father was in the emergency room and she could not be on call that night. He responded that he would provide coverage. On a later date, when the analyst failed to respond to pages, he asked her to verify that she was following correct procedures. She cursed and stormed out. The employer subsequently accepted her resignation. Affirming summary judgment for the employer on her FMLA interference and retaliation claims, the Fifth Circuit explained that the analyst’s statements were insufficient to invoke the Act. Her only request for leave was a text message and, even if her supervisor knew her father was elderly and in poor health, it was unreasonable to expect him to inquire further or know that her text was a request for FMLA leave. Having taken FMLA leave in the past, the analyst knew the proper way to request it, yet she did not do so. Because she did not engage in an FMLA-protected activity, her retaliation claim also failed.
In another case, an employee fired for violating a “call-off” absence policy could not proceed with her FMLA interference claim because, even assuming the employer somehow knew of her mental health issues, her text messages to her supervisor did not provide sufficient notice of her intent to take leave to trigger the employer’s FMLA obligations, found a federal district court in Michigan (Banaszak v Ten Sixteen Recovery Network, June 11, 2013). The court explained that the critical question is whether the information was sufficient to reasonably notify the employer that the employee was requesting time off for a serious health condition. Here, it was not. Instead of calling in, the employee simply texted her supervisor that she was “not well.” Despite the supervisor’s numerous attempts to call the employee for further information over the next few days and to leave messages requesting that the employee call her back or provide a doctor’s note, the employee merely texted her doctor’s contact information (with nothing more) and then later texted “As of today, I will be off until July 12th per my doctor for medical reasons.” Finding these texts to be insufficient notice, the court granted summary judgment for the employer.
These cases indicate that, to date, texting brief messages, without more, is not enough to invoke FMLA protections. However, this issue is still emerging and the analysis may change. Further, in light of the expense of litigation (and even reaching the summary judgment stage) employers are well advised to specifically address text messages in their absence or call-in policies. Given the uncertainty involved in whether supervisors have texting on their cell phone plans (if they use their own devices), whether a text has actually been received, and whether it includes sufficient information to constitute FMLA notice, it might be a good idea to explicitly exclude texting from the call-in policy and require that an employee actually speak to someone.
A few weeks ago, I wrote about a ruling that seemed as though it might stem the rising tide of class action wage suits by unpaid interns. In Wang v Hearst Corp, a federal judge in New York refused to certify a Rule 23 class of magazine interns who alleged they should have been deemed “employees” and compensated accordingly. But a major victory on Tuesday in a suit brought by interns at Fox Searchlight represented a sharp course correction: A federal court held the movie company’s unpaid production assistants were statutory employees under the FLSA. Of equal significance: as to interns at the company’s corporate offices, the court certified both an FLSA collective action and a Rule 23 class.
The named plaintiff alleged that he was misclassified and improperly denied pay during the nine months he spent on the filming and post-production of the movie Black Swan. He sought to bring FLSA and New York Labor Law claims on behalf of all other similarly situated Searchlight interns. Giving deference to the Department of Labor’s criteria for determining whether interns must be paid minimum wage and overtime, Judge William Pauley of the Southern District of New York ruled the Fox interns didn’t fit the “trainee” bill, so this FLSA exception did not apply. As the court saw it, any benefits that the production assistants derived from their efforts came from “simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer.”
The decision offered several important takeaways:
• The court sanctioned the DOL’s six-factor test for determining interns’ status under the FLSA and soundly rejected the “primary benefit” test advocated by the employer as subjective, unpredictable, and unmanageable. Under the latter approach, because one intern might derive great benefit from the unpaid position while another could receive little value from the same experience, one intern would be compensated while the other would not. “An employer could never know in advance whether it would be required to pay its interns,” Pauley wrote. (He noted, though, that even under the primary benefit test, Fox Searchlight would have lost.)
• If an internship provides nothing beyond what a paid employee would receive, it won’t pass muster. Employment references, job-specific new skills, and professional connections alone won’t justify not paying the minimum wage. As the court wrote, “those benefits were incidental to working in the office like any other employee and were not the result of internships intentionally structured to benefit them.” Formal educational training must be provided. (The kind of training your typical new hire wouldn’t receive—and that likely comes at considerable cost and effort, and little tangible advantage, to the employer.)
• If a paid employee would have to perform the intern’s duties if the intern weren’t around, it’s not an internship. The Fox Searchlight “interns” performed routine menial tasks such as obtaining documents, picking up paychecks, tracking purchase orders and invoices, organizing filing cabinets, making photocopies, arranging travel plans, taking out trash, taking lunch orders, answering phones, watermarking scripts, and making deliveries. Their supervisor attested that if the interns hadn’t performed these tasks, “another member of my staff would have been required to work longer hours to perform it, or we would have needed a paid production assistant … to do it.” More red flags: The company’s internship placements coincided with the employer’s busy periods. And, after corporate belt-tightening led to job cuts, the company’s unpaid internship program “more than doubled.” As the court pointed out, using unpaid interns “to fill the interstices created by eliminating paid positions” clearly violates New York wage law.
On the heels of its victory in Fox Searchlight, New York law firm Outten & Golden LLP announced it had launched a proposed class action wage suit on behalf of former Conde Nast interns who had worked at W magazine and The New Yorker. The plaintiff’s firm, which has largely driven this growing area of class wage litigation, has set its sites on large media companies. (Outten & Golden also represents the plaintiffs in the Hearst suit.)
“This case is about the fundamental principle that if you work, you must be paid,” said Outten & Golden’s Juno Turner, one of the attorneys representing the Conde Nast interns. “Our clients seek to end the wage theft endemic in the media industry.”
Psychiatric fitness-for-duty exam can be required so long as employer has objective evidence justifying it, but what does that mean?
Last month the Eleventh Circuit ruled that it was reasonable under the ADA for Coca Cola to require a psychiatric fitness-for-duty examination for an employee who, for the first time in more than seven years of employment, complained at a meeting with his supervisor that he had suffered from discrimination and harassment because he was from Ghana. He allegedly became agitated during the meeting, banged his hand on the table where they sat, and said that “someone is going to pay for this” (Owusu-Ansah v The Coca-Cola Company, 11th Cir, May 8, 2013).
A workplace “threat.” Things escalated significantly from there. The supervisor, manager, HR, and security considered his statement a threat and got an outside consulting psychologist involved. Although the employee wouldn’t discuss the incident further with HR, a few days later he did talk to the outside psychologist, who found him stressed, agitated, and noted there was a “strong possibility that he was delusional.” Coca Cola immediately put him on paid leave. The psychologist wanted a psychiatrist to evaluate the employee; he agreed, but when he met with the psychiatrist, he wouldn’t discuss the incident (or the workplace) with the psychiatrist either. Consequently, the psychologist recommended a psychiatric fitness-for-duty evaluation to “rule out” a mental condition that could interfere with his safe job performance. Coca Cola told the employee that taking the exam, including taking the MMPI, was a condition of employment before he could return to work: if he didn’t take the exam, he’d lose his job. He eventually took the MMPI exam, scored within normal limits, and returned to work more than four months after he was placed on leave.
Here’s what apparently did not happen. There were no prior incidents showing the employee had a propensity for violence. Coca Cola never asked him for his version of the meeting. It doesn’t appear from the court’s opinion whether Coca Cola ever investigated his allegations of discrimination and harassment. (It’s worth noting that the court made a special point that “this was not a typical summary judgment case.” The employee failed to object to the magistrate’s report of the facts, so the court did not consider all the record evidence but only the magistrate judge’s report.)
“Objective evidence.” In upholding summary judgment for Coca Cola that requiring a psychiatric exam was job-related and consistent with business necessity, the court cited the psychologist’s significant concerns about the employee’s emotional and psychological stability. It also cited the employee’s refusal to speak with HR and the psychiatrist as objective evidence supporting this conclusion. With this kind of “objective evidence,” said the court, the examination was job-related and consistent with business necessity.
The employee tried to rely on an EEOC enforcement guidance that defined a medical exam as being job-related and consistent with business necessity “when an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” The court focused primarily on that “objective evidence” requirement. Here, Coca-Cola had the manager’s account of the employee’s conduct, it knew he had refused to talk to the HR manager and psychiatrist, and it had the psychologist’s observations and recommendations. Therefore, it had sufficient objective evidence that the employee had a potentially dangerous mental condition.
No need to prove “direct threat.” That was enough, said the court, rejecting the argument that Coca-Cola also needed evidence that he was a direct threat, a term defined by the ADA as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The enforcement guidance says a direct threat is required only if the employer does not have objective evidence, stressed the court – and here it determined Coca-Cola had that objective evidence.
Cultural dissonance? I’m not second-guessing the 11th Circuit. But what struck me was the court’s repeated reliance on the fact that the employee refused to talk to HR, refused to talk to the psychiatrist, and was regarded as delusional by the psychologist. In fact, what came to mind was the 1997 book by Anne Fadiman, The Spirit Catches You and You Fall Down, which tells the tragic story of the breathtaking cultural dissonance between a Hmong child with epilepsy and her family, and the American medical and sociological professionals who attempted to treat her. The book is dominated by the miscommunication, mistrust, and misunderstanding that flowed from each culture’s misperception of the other.
So, I Googled “Ghana business culture.” “Silence is a common way of responding to a question that can’t be answered without causing discomfort or causing a loss of face,” I read. “Silence is a common means of communication.” “They will say nothing rather than make the other person uncomfortable,” stated another site. Over and over I saw references to the importance of not losing face, and the response to a perceived loss of face being “the silence that will fill the room.” Still other websites spoke of Ghanaians’ propensity to communicate indirectly; to speak in “proverbs” or “analogies.”
Viewed through a different cultural lens, perhaps the employee’s alleged statement that “someone is going to pay” was a mere analogy. Perhaps the employee’s refusal to discuss the incident would be more understandable if viewed as his attempt to preserve what must have been a significant “loss of face.” Perhaps the psychologist and psychiatrist did take into account the employee’s cultural orientation. It may be that the case will be cited for what constitutes objective evidence that an employee has a potentially dangerous mental condition. What I’ll wonder is what might have happened if Coca Cola, a company that deservedly prides itself on its commitment to diversity, had found somebody else from Ghana to talk to this guy.
In a 2012 survey, thirty-six percent of participating workers reported that they discuss politics at work. Of those, 23 percent had a heated discussion or fight with a co-worker, boss, or someone else higher up in the organization. Not surprisingly, then, a recent decision from a federal court in Pennsylvania has served up a reminder as to why allowing politics in the workplace may spell t-r-o-u-b-l-e for the employer. In Lucas v City of Philadelphia (No 11-4376), an African-American employee alleged that he was a surrogate for his supervisor’s hostility toward Barack Obama. The employee claimed that his supervisor made racist comments to him regarding Obama, made him listen to Rush Limbaugh, and made him a surrogate for Obama at work “where he took out his displeasures of what was going on in the political arena and the race arena.”
Around this same time, the supervisor spoke to the employee about violating city policy by failing to remain within five miles of the work area during lunch. He was subsequently suspended without pay for violating this policy three separate times. However, after a bout of anxiety landed him the hospital and then to early retirement, he sued the city alleging, among other things, that he was subjected to a hostile work environment because of his race.
“Weak at best.” The city first argued that the employee failed to show he suffered intentional discrimination. It pointed out that of the 14 employees the supervisor managed, eight were African American and the employee failed to prove that any other African Americans in his unit were subjected to the same treatment. Rejecting this argument, however, the court focused on the employee’s testimony that his supervisor repeatedly commented about his support for Obama because he was black, that he was Obama’s surrogate for his supervisor’s hostility over race and politics, and that the supervisor had a derogatory image of Obama on his computer. Despite finding that this evidence was “weak at best,” the court nonetheless concluded that a reasonable jury could find that the supervisor did, in fact, harbor some racial animus and treated the employee poorly due to his race.
Hyper-sensitive employee? The court also rejected the city’s contention that the supervisor’s allegedly discriminatory actions were merely instances in which he performed his supervisory duties and the employee unreasonably took offense. Noting that there could be some truth to this argument, the court observed that crediting the supervisor’s version of events, it would be inclined to agree that the employee’s interpretation of the conduct at issue was nothing more than the reaction of a hyper-sensitive employee. Crediting the employee’s version, however, the court noted that a reasonable jury could conclude that a similarly situated African American would have been detrimentally affected by the supervisor’s actions. Accordingly, the court allowed the employee’s race-based hostile work environment claim to proceed to trial.
When we think of “taboo” workplace topics, we instantly think of religion, race, and personal issues as subjects to avoid. However, as this opinion illustrates, allowing political incivility into the workplace can be costly for employers who may end up defending an employment discrimination claim as a result, despite evidence that may be “weak at best.”
Just in time for summer hiring season, a recent decision out of a federal district court in New York was a ray of sunshine for employers that offer college internship programs for budding professionals: the court rebuffed former magazine interns at Hearst Corporation in their attempt to pursue state-law wage claims against the company as a class. The ruling could mean that a once-promising cottage industry of class actions by unpaid interns has less growth potential than originally anticipated. However, employers ought not to assume that avoiding wage liability for unpaid interns will be a day at the beach.
Entry-level employees? The status of unpaid interns and their proper classification under the FLSA and other labor laws has been the focus of DOL enforcement efforts in recent years. In 2010, the DOL’s Wage and Hour Division issued Fact Sheet #71, laying out a six-factor test to guide employers in determining whether interns are statutory employees who must be paid minimum wage and overtime under the FLSA. That came on the heels of an Economic Policy Institute report contending that current regulations governing internships typically go unenforced and are in need of reform.
Unpaid internships are especially common in highly competitive, “glamorous” fields — publishing, film, fashion, sports — where job seekers are jockeying for a leg up. “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work,” said Adam T. Klein, an attorney with the New York plaintiff’s firm Outten & Golden, which represents the class in the Hearst case. The law firm contends that the use of unpaid interns often violates the FLSA and state labor laws, and that these workers are unfairly denied the standard benefits of employment and the protections of antidiscrimination laws.
In addition to the Hearst action, the firm has filed several other lawsuits on behalf of unpaid interns, including claims against film company Fox Searchlight and PBS’ Charlie Rose show. (A class certification decision is still pending in the Fox case, brought by an intern who worked for nine months on the movie Black Swan. The Charlie Rose suit, filed on behalf of nearly 200 interns, settled last December for $250,000.)
“These lawsuits will be hot,” said Michael J. Puma, a partner in the Philadelphia office of Morgan Lewis & Bockius, during a May 2012 conference when the complaints were just beginning to pick up steam. “These are kids who are just out of college, there are no jobs out there, they’re minimum wage claims — these are very sympathetic plaintiffs.” Puma predicted that the early spate of suits was a harbinger of more to come.
Not every plaintiff’s firm is chomping at the bit to take intern cases, it should be noted. Paul Lukas, a partner in the Minneapolis plaintiff’s firm Nichols Kaster who litigates class wage suits, sees little promise here. “The problem is you just can’t get a big enough class,” he said. “It’s not like an off-the-clock case where you’ve got a few hundred call center workers.” He also noted that interns are reluctant plaintiffs because they are so eager to secure a full-time job with the employer.
Early win. In response to the recession, Hearst had endeavored to reduce costs by decreasing headcount and expenses. Since 2008, the publisher had used more than 3,000 interns at 20 magazines. Some of the duties performed by the interns — answering phones, making deliveries, and organizing clothing and accessories, among other tasks — were also carried out by paid employees. In fact, several internal emails were unearthed that instructed staff to use interns instead of paid messengers as a cost-cutting measure.
A former Harper’s Bazaar intern filed suit, claiming that she regularly worked more than 40 hours per week at the magazine, and sometimes as many as 55 hours per week, without compensation. In July 2012, a federal court ruled the plaintiff could proceed with her FLSA claim against Hearst as a collective action, certifying a class of all unpaid interns who worked in the company’s magazines division since February 2009. The court rejected the company’s subsequent motion for reconsideration.
Other suits soon followed: a $50 million class action was brought by a former unpaid intern for Elite Model Management. An athletic department intern at Hamilton College filed a minimum wage claim (although he received a stipend, when broken down by hours worked, his pay came to less than $3 per hour). And earlier this month, a former photography intern for an arena football team filed suit on behalf of other unpaid staffers alleging willful violations of the FLSA as well as various claims under the Pennsylvania Minimum Wage Act.
Setbacks. In January, Hearst won a victory when the court disposed of claims that the publisher violated New York Labor Law (NYLL) by requiring interns to pay for college credit as a condition of their internship placement. The plaintiff representing this separate “deductions” class in the litigation was a former Cosmo magazine intern who had worked 32-36 hours per week one summer communicating with modeling agencies, selecting models, and attending casting meetings. She asserted that the tuition requirement amounted to an unlawful deduction from wages. But Hearst argued convincingly that the company gained no benefit from the interns’ paying tuition to their schools, and the students, in contrast, had received college credit. Another “insurmountable hurdle” for the interns: they did not receive payment, “or anything even arguably close,” that could constitute “wages” under the statute. As the court saw it, there can be no “deduction” that would implicate the NYLL if “there were no wages to begin with.”
Also in January, the Eleventh Circuit, in an unpublished decision, affirmed a grant of summary judgment to an employer in a minimum wage suit brought by three medical billing students who worked for the defendant company as part of a required school externship. They asserted that the externships were of little educational benefit and they were performing tasks for the company for which it benefitted economically. However, the appeals court observed that the interns received academic credit for the work, thus deriving a benefit in that they were now eligible to earn their degrees. Also, the employer’s paid staff had to spend time away from their own duties to train and supervise the interns’ work, causing the business to run less efficiently. As a result, the company saw little, if any, economic benefit from the interns’ efforts, the appeals court found.
Then, on May 8, the Hearst court denied the interns’ motion for partial summary judgment on the issue of whether they were employees under the FLSA and NYLL. Although the interns contended that Hearst had to satisfy all of the six factors set forth in the DOL’s test, Hearst urged the court to eschew a “rigid checklist” approach and argued for a “balancing of the benefits” and an evaluation of the economic reality of the relationship. Looking to the totality of the circumstances — the six factors articulated by the DOL among them — the court concluded that disputed fact issues meant a jury could find in Hearst’s favor.
Of greater significance, however: the court refused to certify the state-law class, concluding that the interns did not satisfy the commonality requirement under Rule 23(a)(2) and the predominance requirement of Rule 23(b)(3). With an eye to the Supreme Court’s decision in Wal-Mart Stores, Inc v Dukes, the court determined that the plaintiffs could not show anything more than a uniform policy by Hearst of utilizing unpaid internships. That alone could not resolve the liability issue, which turned on what duties the interns performed and what benefits they received during their internship, which varied greatly from magazine to magazine. There was a myriad of internship postings, manuals, and guidelines that set out different duties and training for each magazine. As such, the court would have to undertake an individualized analysis of the factors set forth by the DOL in distinguishing “interns” from “employees.” (The plaintiffs have recently asked the district court for permission to challenge the denial of their motions for class certification and summary judgment on interlocutory appeal to the Second Circuit.)
A failure notice to plaintiffs? “The Hearst ruling is clearly a significant obstacle for plaintiffs seeking to bring these cases on a class or collective basis,” said Will Anthony, a partner in the Hartford, Connecticut office of Jackson Lewis (and Employment Law Daily Advisory Board member). “It is, however, only a district court decision, and I doubt that it will cause plaintiffs’ counsel to stop bringing these lawsuits entirely,” he predicted. Yet, “its analysis and citation of the Supreme Court’s certification decisions should make plaintiffs’ counsel think twice before investing time and money on cases that may end up as single-plaintiff claims.”
While Anthony has always advised employers to be mindful of the case law and the DOL criteria in considering their interns’ status under the law, he noted that “if the case law starts to break significantly in favor of rejecting class claims in the context of an intern or other fact-intensive wage claim, companies may be willing to tolerate more risk of an adverse ruling regarding an individual intern in a single-plaintiff case.”
“At the same time,” Anthony pointed out, “we caution companies to remember that enforcement agencies do not typically have to satisfy standards for class certification and thus can proceed with across-the-board enforcement actions more readily than private attorneys can.”
Making the grade. Morgan Lewis’ Puma noted the difficulty of administering an internship program that would safely pass muster under the DOL’s criteria:
(1) The internship, even though it includes actual operation of the facilities of the employer, must be similar to training that would be given in an educational environment;
(2) The internship experience is for the benefit of the intern;
(3) The intern does not displace regular employees, but works under close supervision of existing staff;
(4) The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded;
(5) The intern is not necessarily entitled to a job at the conclusion of the internship; and
(6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
While no easy task, here are several pointers for meeting the mark:
• Interns should earn college credit for their efforts as part of a formal academic program at a college or university.
• Structure tasks around the intern’s academic goals, not the employer’s operations. “Grunt work” should be only rarely assigned.
• Afford the intern the chance to attain skills that are readily transferable to other employers within the industry, not skills or procedures that are unique to your organization.
• Cooperate closely with the educational institution, which should be providing careful oversight. Such scrutiny helps to demonstrate that the intern’s duties are educational, not merely operational, and that the internship is primarily academic in nature.
• Set a clear start and end date, perhaps tied to a school semester or break. Establish the duration before the internship begins, and don’t schedule it around the organization’s busy season or an employee downsizing.
• Don’t over-work your interns, even if they aren’t currently enrolled in classes. Generally, the intern should not be scheduled based on your productivity needs, but in accordance with the intern’s academic goals. (As a practical matter, you shouldn’t “need” an intern; if you’re so reliant on interns to get the work done that they are working extreme hours, then your interns are probably employees.)
• If unforeseen circumstances create a need for interns to fill in for regular employees, consider hiring them on a temporary basis. Make clear, however, that the intern is not being given a “tryout” for eventual full-time employment.
• The DOL six-factor test is based on an intern’s status according to the FLSA’s definition of “employee.” But state wage and hour laws apply too.
• In light of these considerable demands and caveats, consider whether an internship program is ultimately worth the risk and administrative burden.
In the end, it might just pay to pay. Says Puma: “I ask employers, ‘do you really want this headache? Couldn’t you just pay them minimum wage?’” Some companies have started to do just that, compensating their interns based on an hourly rate or modest per-semester stipend. In such cases — as our Hamilton College plaintiff instructs us — you’ll need to ensure that the stipend satisfies the minimum wage after calculating the intern’s hours worked, and that overtime is paid where due.