Approximately 40 million people in the United States have a chronic sleep disorder. It is estimated that sleep loss issues cost employers $18 billion in lost productivity. While a sleep disorder may be a disability under the ADA, not all sleep disorders will be. So what do you do when you catch an employee sleeping at work? If you have a policy against sleeping on the job, you should be able to disciple an employee for violating the policy, right?
But what if the employee asserts that he fell asleep because of a disability? Generally, an employer does not have to excuse violations of a uniformly applied conduct rule that is job-related and consistent with business necessity. Accordingly, an employer can typically discipline an employee with a disability for engaging in misconduct, as long as the employer imposes the same discipline on an employee without a disability. For example, in 2008, the Eighth Circuit, in McNary v Schreiber Foods, Inc, ruled that an employee who suffered from Graves Disease and diabetes, and who allegedly fell asleep while he was supposed to be working, could not pursue his ADA disability bias claim. The appeals court found that the employer provided a legitimate, nondiscriminatory reason for his termination — violating the company’s policy prohibiting sleeping on the job.
You snooze you lose, or do you? However, a federal court in Virginia recently refused to dismiss the ADA claim of an employee who was fired after he allegedly was caught snoozing instead of working. Despite noting precedent that an employee who can’t stay awake at work would not likely be a “qualified” individual under the ADA, the court found that an employee who suffered from fibromyalgia, and who asserted that he could do his job if his employer would wake him up in case he dozed off, stated a claim for failure to accommodate. The employee had informed his employer about his diagnosis but was terminated after he grew tired at work and “on one or two occasions fell asleep at his workstation.”
The employer argued that the employee was not a qualified individual with a disability and that it was unreasonable for him to ask to be roused whenever he fell asleep. Denying the employer’s motion to dismiss, the court found that the employee alleged that he had a disabling condition that prevented him from sleeping, that the employer knew about the condition, and that he could satisfactorily perform his job with accommodations. Additionally, he said that he requested a specific accommodation and that his employer refused to provide that accommodation. On this record, the court declined to find that the employee was unqualified.
Failure to accommodate. Likewise, a court in South Carolina found that an employee who was terminated for sleeping on the job in violation of company policy could proceed to trial on her failure to accommodate claim. In that case, the employee, who suffered from migraines, was fired when she fell asleep on the job while trying a new medicine for her migraine headaches. The medicine apparently made her drowsy, and she was allegedly observed sleeping for several hours during her shift, although she claimed to have no memory of this. Here, she had requested the accommodation of being given time off to get her medicine regulated and to be allowed to have a snack and break when the migraines came on. The court found that there were disputed fact issues as to whether both parties met their burden of engaging in the interactive process in good faith and whether that caused the failure to accommodate her migraines. Her ADA disparate treatment claim failed, however, because she could not establish that her employer’s reason for terminating her was pretext for disability discrimination.
Disability discrimination. Conversely, an employee in Ohio, who was terminated after he was caught dozing off in the company van, was allowed to proceed to trial on his disability discrimination claim under the ADA. In this case, the employee had previously been warned that sleeping on the job would not be tolerated. After he was terminated, his daughter informed his employer that he had been hospitalized and treated for narcolepsy. She demanded that the company provide her father with FMLA leave. While the employee was reinstated and granted leave, he was terminated the same month he was approved to return from leave, allegedly as part of a company-wide reduction in force. The dispute centered on whether he produced sufficient evidence that he would not have been singled out in the RIF but for his disability.
Here, the court observed that the employee was terminated almost immediately after his employer learned of his disability and was terminated a second time after he attempted to return from leave that he took to bring the symptoms of his disability under control. The close temporal proximity between these occurrences, coupled with the circumstantial evidence suggesting that the employee’s medical condition may have played a role in the termination decision, was enough to establish a prima facie case of disability discrimination in the context of a RIF, concluded the court.
Reasonable accommodations. While not all employees with sleep disorders will need accommodations, the process of determining which job accommodation is appropriate in a particular situation should involve a dialogue between the employer and employee. The precise limitations imposed by the disability should be identified. The parties should then explore potential accommodations that will allow the employee to perform the essential functions of the job.
Accommodation Ideas. The Job Accommodation Network has a list of suggested accommodations for employees suffering from sleep disorders. Such potential accommodations include:
- Providing a device or alarm to keep the employee alert;
- Providing longer, or more frequent, breaks;
- Providing a shift change for when the employee is most alert;
- Increasing natural light or providing full spectrum lighting;
- Dividing large assignments into smaller tasks and steps;
- Providing a flexible start time and or end time;
- Providing a part-time work schedule; and
- Providing back-up coverage for when the employee needs to take a break.
Healthy employee not entitled to FMLA protections when employer forced her to take leave and fired her for exhausting it
Ever read a case that just keeps nagging at you? An opinion from the Eighth Circuit this past July won’t leave me alone (Walker v Trinity Marine Products, Inc).
Here’s what happened. For reasons explained neither by the district court nor the Eighth Circuit, an employer believed its employee suffered from a serious health condition. What condition it believed she suffered from was never revealed. Nonetheless, in May 2009, it put her on involuntary FMLA leave and required her to obtain a fitness-for-duty medical certification to return to work. She did. The company wouldn’t let her return to work, however, and required a second medical certification. She saw a second doctor who also deemed her fit to work without restrictions in June 2009. Again, the company would not allow her to return to work and instructed her to see a physician at Vanderbilt University Medical Center, about 200 miles driving distance. The Vanderbilt physician examined her twice during July 2009, determined she was able to return to work without restrictions, and sent a letter so stating to the employee on September 2, 2009, which she promptly turned over to her employer. But when she did, her employer told her – whoops – she had exhausted all available FMLA leave in August, so she was fired.
Just let that sink in.
The employee sued, believing her employer interfered with her rights under the FMLA by placing her involuntarily on FMLA leave while she was healthy, exhausting her leave, and then refusing to permit her to return to work after receiving being certified fit to work. She also asserted that it unlawfully fired her because she attempted to exercise her right to return to the position that she held prior to taking leave. Moving to dismiss, the employer reversed its position, claiming that because she never suffered from a serious health condition that would have entitled her to FMLA leave in the first place, she was not entitled to the protections of the Act. The district court dismissed her claims, and the Eighth Circuit affirmed.
You must be entitled to leave, not just eligible, to be protected. Basically the Eighth Circuit’s reasoning was this: If forced leave can amount to interference with a right provided under the FMLA, it can do so only if the employer’s action prevents the employee from using benefits to which she is entitled under the Act, which it interpreted narrowly. Noting that it had not decided whether placing an employee involuntarily on FMLA leave was a form of interference under the FMLA, the court said that, even assuming there was such a cause of action, the employee’s claim wasn’t viable.
Why? She argued that the employer interfered with her FMLA benefits because, by forcing her to take leave when she did not have a serious health condition, it interfered with her right to use FMLA leave if and when she actually needed it. But the Sixth Circuit precedent on which she relied held that being forced to take leave could be a type of “interference claim” that “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.” Because she got the right to a certain amount of leave under the Act – in fact, her employer forced her to take it all – the Eighth Circuit said her claim was properly dismissed.
The point the court seemed to miss was that the employer’s action actually did foreclose her from taking leave at a later date – it’s tough to wait around until your claim has “ripened” when you’re fired and your “claim for benefits” can never ripen. Perhaps the situation here is more analogous to the Eleventh Circuit’s 2012 decision in Pereda v Brookdale Senior Living Communities, Inc, which found that employees are protected from FMLA interference prior to the occurrence of a triggering event — even employees who are not yet eligible for FMLA protection — because to hold otherwise “would violate the purposes for which the FMLA was enacted.” There the Eleventh Circuit refused to allow an employer to fire a pregnant employee, instead finding her pre-eligibility request for post-eligibility FMLA leave was protected from interference.
Return to work not protected. The employee also claimed that her employer interfered with benefits to which she was entitled under the FMLA when it refused to permit her to return to work, even after she received multiple certifications of her fitness to do so (notably, the employer had no right under the FMLA to obtain multiple certifications of her fitness for duty; see below). The Eighth Circuit disposed of this in one sentence: “Because Walker admits that she never suffered a serious health condition within the meaning of the Act, we conclude that she has no right to the benefits provided by the FMLA.”
Any equitable estoppel here? Given that it was her employer’s insistence that she had a serious health condition – not just a “mistaken belief” as the court so quaintly characterized it — the employee argued that, despite the fact she was proven healthy by three employer-required medical certifications, equitable considerations should prevent the employer from denying that she was entitled to FMLA protections. She said the company should be bound by its own decision to treat her as having a serious health condition when it required her to take FMLA leave.
Again, the court missed the point. First, the court said that if equitable estoppel applied in the FMLA context, she would have to “show that she has changed her position to her detriment in reasonable reliance on another’s misleading representation.” The court said her only colorable argument of reliance was that she sought several medical opinions due to the employer’s insistence she had a medical condition, and her “inconvenience” was “not a cognizable detriment for purposes of an estoppel claim invoking the FMLA.” Plus, the court tacked on the fact that FMLA interference damages are limited to “actual monetary losses sustained by the employee as a direct result of the claimed interference.” First, what she relied on was that, if she obtained a fitness for duty certification (or two, or three), she would be allowed to return to work. It wasn’t the inconvenience of the medical certifications; it was the job loss that was to her detriment. As for actual monetary loss? Typically that does result from losing one’s job.
Termination for exceeding leave. The appeals court also found that the employee could not state a claim for unlawful discrimination based on her termination after she sought restoration to her position – because her leave ( the court conveniently ignored the fact her leave was involuntary and employer-imposed) was not for an “intended purpose” of the FMLA, resulting in no statutory restoration rights. “The employer’s mistaken belief that she had a serious health condition could not entitle her to the benefits of the FMLA,” the court concluded. Yet why did the employer’s “mistaken belief” – willfully obstinate in the face of medical evidence – entitle it to hide behind the FMLA, place the employee on involuntary leave, and require her to obtain three medical certifications, all of it ignored when they certified she was fit to work without restrictions?
What do the regs say? The employer’s right to seek a medical fitness-for-duty certification is carefully circumscribed by Sec. 825.312 of the regs, which clearly state that “the employer may not delay the employee’s return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required.” Other medical certifications under the general certification rule in Sec. 825.305 assume that an employee’s request for leave will initiate the certification requirement. Even then, the requirements for second and third medical opinions clearly contemplate that “the third opinion shall be final and binding” – on both the employer and the employee.
Regarded-as claim? It may be, as the court mentioned briefly, that a legislative remedy is required to provide for claims based on an employer’s perception of an employee’s health – a “regarded-as claim,” as it were. And it’s clearly possible that there were facts carefully undisclosed by both courts here that somehow shifted the equities. Nonetheless, the case currently can be cited to allow an employer to use the FMLA with impunity as a bad-faith weapon against an employee who, for whatever reason, it wants to fire.
The stated purposes of the FMLA are to balance the demands of the workplace with the needs of families, to entitle employees to take reasonable leave for medical reasons, and to accomplish those purposes in a manner that accommodates the legitimate interests of employers. Really, how does protecting an employer’s forcing of involuntary leave on an employee, which results in her termination for exhausting that leave despite multiple medical certifications confirming her fitness for duty, advance those purposes?
On September 17, the DOL released its final rule extending FLSA minimum wage and overtime protections to most of the nation’s workers who provide essential home care assistance to elderly people and people with illnesses, injuries or disabilities. As a result of the new rule, nearly two million direct care workers, including home health aides, personal care aides, and certified nursing assistants, will now receive the same basic protections already provided to most U.S. workers.
The DOL points out the regulatory change will also help guarantee that those who rely on the assistance of direct care workers will have access to consistent and high-quality care from a stable and increasingly professional workforce. The final rule is effective January 1, 2015.
Changes prompted by industry developments. In 1974, Congress extended the protections of FLSA to “domestic service” employees, but exempted from the Act’s minimum wage and overtime provisions domestic service employees who provide “companionship services” to elderly people or people with illnesses, injuries, or disabilities who require assistance in caring for themselves. It also exempted from the Act’s overtime provision domestic service employees who reside in the household in which they provide services.
The DOL’s final rule revises its 1975 regulations implementing these amendments to the Act to better reflect Congressional intent given the changes to the home care industry and workforce since that time. The most significant change is the DOL’s revision of “companionship services” to clarify and narrow the duties that fall within the term. Moreover, third party employers, such as home care agencies, will not be able to claim either of the exemptions. The major effect of this the final rule is that more domestic service workers will be protected by the FLSA’s minimum wage, overtime, and recordkeeping provisions.
The last several decades have seen dramatic growth in the home care industry as more individuals choose long-term care at home instead of in nursing homes or other facilities, the DOL noted in a statement. However, despite this growth and the fact that direct care workers increasingly receive skills training and perform work previously done by trained nurses, direct care workers remain among the lowest paid in the service industry.
The final rule also clarifies that direct care workers who perform medically related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime. Moreover, consistent with Congress’ initial intent, individual workers who are employed only by the person receiving services, or that person’s family or household, and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.
There are about 1.9 million direct care workers in the United States, nearly all of whom are currently employed by home care agencies, according to the DOL. An estimated 90 percent of direct care workers are women, and nearly 50 percent are minorities.
“The department carefully considered the comments received from individuals who receive home care, workers, third-party employers and administrators of state programs that support home care,” said Laura Fortman, the principal deputy administrator of the Wage and Hour Division, the agency that administers and enforces the FLSA. “In response, the final rule provides increased flexibility, and gives programs sufficient time to make any needed adjustments. Together these changes will allow the rule to better meet consumers’ needs while better protecting direct care workers.”
Sub-regulatory guidance. In conjunction with the release of the final rule, the DOL has issued sub-regulatory guidance, including a frequently asked questions (FAQ) document and a series of fact sheets addressing topics such as the application of the final rule; private home and domestic service employment under the FLSA; companionship services under the FLSA; live-in domestic service workers under the FLSA; and hours worked applicable to domestic service employment under the FLSA. A new web portal includes all of these documents as well as interactive web tools and other materials to help families, other employers and workers understand the new requirements.
Webinars. The DOL will also be offering five webinars on the final rule, to be held at the following locations:
- Thursday, October 3: Northeast Region (ME, NH, VT, MA, RI, CT, NY, PA, NJ, DE, MD, DC, VA, WV, PR), 3:00-4:30 ET;
- Tuesday, October 8: Western Region (AZ, NV, CA, OR, WA, ID, HI, AK), 10:00-11:30 PT;
- Thursday, October 10 Midwest Region (OH, MI, IN, IL, WI, MN, IA, MO, NE, KS), 1:00-2:30 CT, 2:00-3:30 ET
- Tuesday, October 15: Southeast Region (KY, TN, NC, SC, GA, FL, AL, MS), 9:00-10:30 CT, 10:00-11:30 ET
- Thursday, October 17: Southwest/Mountain Region (LA, TX, AR, OK, NM, CO, WY, UT, MT, ND, SD), 1:00-2:30, MT; 2:00-3:30 CT
Registration will information will be available on the webinar webpage shortly.
Further information. For further information, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, U.S. Department of Labor, Wage and Hour Division, 200 Constitution Avenue, NW., Room S-3502, FP Building, Washington, D.C., 20210; telephone: (202) 693-0406 (this is not a toll-free number).
The United Auto Workers issued a statement on September 6 regarding its discussions about representation and a “works council” for Volkswagen’s new plant in Chattanooga, Tennessee. If fruitful, the discussions may lead to the introduction of a new labor relations model in the United States.
The term “works council” is foreign to U.S. labor law. According to WikiPedia, a works council is a “shop-floor organization including workers and executives that functions as local/firm-level complement to national labor negotiations. Works councils exist with different names in a variety of related forms in a number of European countries. Works councils safeguards employees’ collective interests and have three primary duties:
- The duty to work cooperatively and in good faith with trade unions and the employer
- The duty to preserve peace in the workplace. This means that it cannot initiate any form of industrial action to exert pressure on the employer.
- The duty to defend the principle of equal treatment with regard to age, and the personal development of staff members.
The works council has various rights according to the German Works Constitution Act, none of which are executive in nature. Only the employer can implement measures within the business unit, such as hiring, dismissal, operational changes, etc. Some of the rights of the work council include:
- Information Rights: The works council has a general right to be kept informed in detail and without delay in keeping its duties under the Works Constitution Act. The employer is obliged to give the works council a hearing before reaching a decision on certain matters and to take its arguments into account. However, management is not bound to accept these arguments. Most important is the right to be heard before every dismissal and informed of all reasons of the dismissal.
- Consultation Rights: The works council has the right to be consulted on such matters as workplace design and equipment, personnel planning, and vocational training. Again, the employer is not obliged to implement the works council’s proposals.
- Co-determination Rights: The most far-reaching rights of the works council are those of co-determination, which mean that measures cannot take effect until the works council’s approval is granted. Any social, personnel-related, and economic measures planned by the employer require the works council’s approval before they can be implemented.
According to Associated Press, the UAW’s regional director responsible for Tennessee, Gary Casteel, said September 13 that workers at the plant have signed authorization cards including a statement about wanting to join VW’s global works council and supporting cooperative and collaborative relations with the company. In Germany, unions bargain for wages, while works councils weigh in on job security, safety and other plant-specific matters. So how the UAW’s role would intermesh with a works council is at this point somewhat unclear, but would be totally different from established relationships with U.S. automakers.
By Pamela Wolf, J.D.
For employers that aren’t already clued into the changing face of labor in the United States, the AFL-CIO’s 2013 Convention has provided a jolt of reality. Among the several resolutions approved at the federation’s big event, which kicked off September 8 in Los Angeles, is one that permits any U.S. worker to join the labor movement. The federation says it will develop new pathways, either through affiliate unions, AFL-CIO’s community affiliate Working America, worker centers, or through students. The union umbrella organization clearly intends to expand its outreach through so-called “alt-labor,” but it also will carefully avoid any detrimental impact on the unionized labor segment.
Expanding alt-labor presence. According to Resolution 5, transparently aimed at growth, the labor movement must be broad and inclusive, and “cannot be confined within bargaining units defined by government agencies or limited to workplaces where a majority of employees votes ‘Yes’ in the face of a ruthless campaign by their employer to deny them representation.”
Noting that the labor movement includes all workers who wish to take collective action to improve wages, hours and working conditions, the resolution says: “Our unions must be open to all workers who want to join with us. The AFL-CIO and affiliated unions must continue to innovate and experiment with new forms of membership and representation to achieve the ultimate objective of assisting all workers to bargain collectively through an affiliated union.”
For these and other reasons, the resolution says, the AFL-CIO and its affiliate unions should “expand existing forms and create new forms of membership to make membership available to any worker who wants to join the labor movement,” targeting those who are not already covered by a CBA, a union member, represented by a union, or included in an affiliated union’s organizing plan.
Via Resolution 5, the federation has invited “every worker in the United States to join the labor movement either through an affiliate or through Working American.” Working America is “another form of membership” created by the AFL-CIO — its alt-labor group.
Balance between Working America and union activity. “The AFL-CIO will continue to experiment with this form of membership in close cooperation with affiliates and without undermining affiliates’ current collective bargaining relationships or organizing plans and with the ultimate objective of enabling workers to obtain representation for purposes of collective bargaining through an affiliated union,” according to the resolution.
Reaching nonunion workers. To make these new, expanded, open forms of membership meaningful, democratic, and self-sustaining, Resolution 5 directs that the AFL-CIO, affiliates, and Working America shall:
- Develop forms of workplace representation and advocacy that can benefit members outside collective bargaining by educating them about their workplace rights, providing assistance when their rights are violated, encouraging concerted action to redress workplace problems, and by other lawful means.
- Seek to extend non-collectively bargained benefits to those members who are not represented for purposes of collective bargaining in cooperation with Union Privilege.
- Provide members with education, training, and leadership development opportunities.
- Mobilize these new members in electoral and other political efforts and in support of organizing drives and collective bargaining campaigns.
Resolution 5 also calls on the AFL-CIO and affiliated unions to “deepen their relationship” with worker centers and other emerging organizations that serve as advocates for workers not covered by a CBA, who are not union members, and are not represented by a union, with the aim to “better further the common objective of expanding the labor movement and raising workers’ standard of living.” The AFL-CIO and affiliated unions should also “renew and strengthen their ties to students, recognizing that students have a vital interest in working with union members to ensure that the workplaces they are about to enter are just, fulfilling and rewarding,” according to the resolution.
Traditional unions in decline. As virtually everyone knows, traditional unions in the United States are on the decline. According to the U.S. Bureau of Labor Statistics, the union workforce membership rate was 11.3 percent in 2012, down from 11.8 percent in 2011. In 1983, the participation rate was 20.1 percent. The public sector membership rate in 2012 was 35.9 percent as compared to a private sector rate of 6.6 percent. New York had the highest union membership rate in 2012 at 23.2 percent, and North Carolina had the lowest participation rate at 2.9 percent.
Controversy over nonunion organizations. But other labor advocacy efforts are on the rise. Indeed, the line between union and nonunion labor organizations is increasingly blurred. Many of the recent nationwide protests against low wages and lack of benefits in the fast food and retail segments, as well as those against Walmart, have been supported by unions.
In a July 23 letter, the House Committee on Education and the Workforce asked Secretary of Labor Thomas Perez to weigh in on the question of whether so-called “worker centers” are “labor organizations” or otherwise fall under the Labor-Management Reporting and Disclosure Act (LMRDA) and thus, are subject to annual filing requirements.
John Kline (R-Minn), Chairman of the Education and Workforce Committee and David P. Roe (R-Tenn), Chairman of the Subcommittee on Health, Employment, Labor and Pensions wrote: “In the last decade, the line between so-called ‘worker centers’ and labor organizations has blurred. Today, many of these ‘worker centers’ are dealing with employers directly on behalf of employees. Given these activities, a case has been made that at least some ‘worker centers’ are labor organizations as defined by the Labor-Management Reporting and Disclosure Act (LMRDA), which would make them subject to annual filing requirements.”
The two committee chairmen accordingly have requested an official determination as to the LMRDA filing requirements pertaining to worker centers, as well as all documents and communications used by the agency to reach its determination.
According to the committee chairmen, worker centers “have traditionally been ‘defined as community-based and community-led organizations that engage in a combination of service, advocacy, and organizing to provide support to low-wage workers.’” These organizations provide “information and training in workers’ rights, employment, labor and immigration law, legal services, the English language, and many other programs,” the chairmen wrote. They have, however also “taken direct action to alter conditions of employment and organize employees.”
Work councils coming? Another potential development is the importation of European-style work councils, as foreshadowed by a United Auto Workers statement, issued on September 6, regarding the union’s discussions about representation and a works council for the Volkswagen plant in Chattanooga, Tennessee. If fruitful, the discussions may lead to the introduction of a new labor relations model in the United States.
The UAW confirmed that officials of Volkswagen Group, the Volkswagen Global Works Council, and the UAW met in Wolfsburg, Germany, on August 30, in continuation of a series of meetings between their respective representatives. “The meeting focused on the appropriate paths, consistent with American law, for arriving at both Volkswagen recognition of UAW representation at its Chattanooga facility and establishment of a German-style works council,” the UAW said.
The UAW touted VW’s Global Labor Charter and its Social Charter, noting that they go beyond international labor standards to establish principles that govern labor relations and social matters, including remuneration systems, information and communication, training, occupational health and safety, social and ecological sustainability, labor standards at suppliers and, most recently, principles for the use of temporary workers. In addition, the Charter establishes annual labor-management meetings and gives employee bodies the right to hold workforce meetings at least once a year during which management informs the workforce on the economic situation and developments in the area of human resources and social matters, the UAW said.
“VW workers in Chattanooga have the unique opportunity to introduce this new model of labor relations to the United States, in partnership with the UAW,” according to the union. “Such a labor relations model would give workers the job security that would accompany their having an integral role in managing the company and a vehicle to provide input on workplace improvements that will contribute to the company’s success.”
Alt-labor vulnerability. Three questions employers might want to consider:
- Is your workforce likely to be targeted by an alt-labor group, and if so, why?
- Have you completed a workforce compensation analysis and compliance check recently with an eye toward determining worker satisfaction/organizing vulnerability?
- Is there a process in place that gives workers a voice?