What constitutes the “practice of law”? That question was at the heart of a recent Second Circuit decision involving a contract attorney’s claim that he was not exempt from the FLSA’s overtime provisions based on the work he performed for a law firm.
In Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, the Second Circuit agreed with a district court’s conclusion that state law informed the FLSA’s definition of “practice of law” but disagreed that by undertaking document review, an attorney was necessarily “practicing law” within the meaning of North Carolina law.
Exercise of legal judgment. Finding that the exercise of some legal judgment is an essential element of the practice of law and that the attorney-plaintiff alleged that he performed document review under such tight constraints that he exercised no legal judgment, the appeals court revived the attorney-plaintiff’s putative overtime class action.
Licensed to practice in California, the attorney was contracted to do temp work for the New York law firm of Skadden, Arps, Slate, Meagher & Flom for 15 months in North Carolina. He conducted document review in connection with multi-district litigation pending in Ohio. According to the attorney, his work was closely supervised and his “entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.”
The attorney was paid $25 an hour for his work and worked approximately 45 to 55 hours a week. He was paid at the same rate for any hours he worked in excess of 40 per week. He brought a putative collective action seeking damages for violation of the overtime provisions of the FLSA.
Practice of law. Moving to dismiss, the law firm argued that the attorney was exempt from the FLSA’s overtime rules because he was a licensed attorney engaged in the practice of law. The district court agreed.
While it was undisputed that the attorney was licensed to practice law in California, the parties disputed whether the document review he allegedly performed was “engaging in the practice of law.” Like the district court, the court of appeals found that North Carolina had the strongest interest in making sure that he was fairly paid. Thus, it concluded that the district court properly applied North Carolina law.
Although North Carolina law does not clarify whether “legal services” includes the performance of document review, a North Carolina State Bar formal ethics opinion sheds light on what is meant by “legal services.” The Bar’s Ethics Committee stated that: “A lawyer may use foreign assistants for administrative support services such as document assembly, accounting, and clerical support. A lawyer may also use foreign assistants for limited legal support services such as reviewing documents; conducting due diligence; drafting contracts, pleadings, and memoranda of law; and conducting legal research. Foreign assistants may not exercise independent legal judgment in making decisions on behalf of a client.”
Document review. But the appeals court disagreed that this necessarily meant engaging in document review per se constitutes practicing law in North Carolina. While the ethics opinion did not delve into precisely what type of document review falls within the practice of law, it strongly suggested that inherent in the definition of “practice of law” in North Carolina is the exercise of at least a modicum of independent legal judgment. Many other states also consider the exercise of some legal judgment an essential element of the practice of law.
The attorney’s complaint was that he performed document review under such tight constraints that he exercised no legal judgment whatsoever, so accepting those allegations as true, the Second Circuit found the employee’s complaint adequately alleged that he failed to exercise any legal judgment in performing his duties for the law firm. Accordingly, it vacated the judgment of the district court and remanded his putative collective action.
The recent Amtrak accident in Philadelphia raised concerns in the minds of many that train, bus, or plane operators should not be using their mobile devices while operating their equipment. The safety of the riding public can’t be jeopardized by the impulse to text or talk. Of late, arbitrators have maintained a hard line when it comes to the practice. Below are several recent examples drawn from actual arbitration awards.
Cell phone use while operating a streetcar justified termination
A streetcar operator filed a grievance contesting her termination for using her cell phone to call and text while operating the streetcar. The arbitrator denied the grievance. Louisiana law imposes burdens on transit operators that are stricter than the burdens placed on ordinary drivers (extraordinary care rather than ordinary care). Video of the employee using her phone and texting while operating the streetcar clearly demonstrated that she violated these standards. Her neglect of duty exposed her employer, other vehicles, streetcar passengers, and pedestrians to potential harm. As a result, the employer had just cause to terminate her. Amalgamated Transit Union, Division 1560 and Veolia Transportation. Charles J. Crider, Arbitrator.
Cell phone use by bus driver justified termination
A bus driver filed a grievance contesting her termination for violating the employer’s ban on cell phone use while operating her bus. The arbitrator denied the grievance. The evidence clearly showed that the driver used her cell phone while operating the bus. The fact that she was responding to a personal family matter was unfortunate but it could not excuse her conduct given the potentially serious consequences to people and property. The arbitrator also denied the union’s request to dismiss the grievance on the ground that the employer failed to respond timely to a lower step grievance because the timeliness matter was not raised until the arbitration hearing and that the late response ultimately caused no delay in processing the case to arbitration. Amalgamated Transit Union Local 1764 and Veolia Transportation, Inc. George A. Connolly, Arbitrator.
Train operator’s cell phone use justified termination
An employee filed a grievance contesting her termination for using a cell phone while operating a train. The arbitrator denied the grievance. The employee essentially admitted using her cell phone while operating the train, which was a violation of the employer’s Distraction Avoidance Policy (DAP). The arbitrator also rejected the employee’s argument that the DAP was invalid—on the ground that it was never negotiated with the union—because it had previously been found valid by a different arbitrator. As a result, the employer had just cause to terminate the employee for violating the DAP. Metropolitan Atlanta Rapid Transit Authority and Amalgamated Transit Union, Local 732. Jerry A. Fullmer, Arbitrator.
Termination upheld for talking on cell phone while driving
A bus driver filed a grievance after being terminated for using a cell phone while driving the bus. The arbitrator upheld the termination and denied the grievance. Even though the bus driver was talking to the dispatcher, talking on a cell phone while driving was a firing offense under company rules. The driver could have taken various actions, such as pulling off to the side of the road before talking on the cell phone, but she did not. Veolia Transportation, Inc. and ATU Local 819. Joseph Licata, Arbitrator.
Ten-word call violated the zero tolerance cell phone policy
A bus driver filed a grievance after being terminated for violating the employer’s cell phone use policy by answering his cell phone while driving and saying “I can’t talk right now; I will call you later.” The arbitrator denied the grievance and upheld the termination. The employer and the union had agreed to a zero tolerance policy that permitted termination on a first offense. The fact that the conversation was brief was irrelevant. If the employee could not resist answering the phone, he should have turned it off. Even though the bus driver’s phone records showed no call on that date, the arbitrator chose to believe the testimony of the employer’s spotter who witnessed the call while riding on the bus. Veolia Transportation and Teamsters, Local 683. David B. Hart, Arbitrator.
However, termination too severe for first violation of cell phone policy
A bus driver filed a grievance contesting his termination for violating the employer’s zero tolerance policy against using a cell phone while operating a bus. The arbitrator sustained the grievance and ordered that the termination be converted to an approximately 11-month suspension without pay. The arbitrator determined that the employee did violate the policy by putting his phone away when it rang without engaging in any conversation. Termination, however, was excessive given that no passengers were aboard, no pedestrians were in sight, and this was the first case under the new zero tolerance policy. Also, the policy was ambiguous about whether termination was required on a first offense. Under these facts, it was too harsh a penalty. Greater Cleveland Regional Transit Authority and Amalgamated Transit Union, Local 268. Jerry A. Fullmer, Arbitrator.
…And, cell phone use justified suspension but not termination
A bus driver filed a grievance contesting his termination for using a cell phone while operating a bus, in violation of the company’s zero tolerance policy against cell phone use. The arbitrator granted the grievance to the extent that the termination was converted into an unpaid, 7-month suspension. A zero tolerance policy cannot cancel out an employer’s obligation to terminate for just cause. Circumstances matter. In this case, an 18-year employee with a clean record clearly violated the rule, but he did not steal, commit violence, use drugs or engage in gross insubordination. He deserved to be punished but not to be terminated. He was now on notice, however, that any future violation would result in termination. Amalgamated Transit Union and Central Florida Regional Transportation Authority (LYNX). Stanley Kravit, Arbitrator.
By Lorene D. Park, J.D.
Think an FMLA leave request has to be an “FMLA” leave request? What about suggesting that an employee, who is on a tight budget and must care for a seriously ill child, telecommute part-time instead of taking FMLA leave so she can retain her salary—think that’s reasonable? In fact, some employers are now facing costly legal battles over these and other FMLA missteps. In reviewing decisions that came out in the past few months, five avoidable mistakes made more than one appearance, and a couple seemed to form a common theme:
Don’t assume an employee has to ask specifically for FMLA leave. As explained by a DOL fact sheet, an employee is not required to mention the “FMLA” when requesting leave. The notice required varies depending on whether the need for leave is foreseeable. If it is, an employee must give notice (30 days’ notice unless impracticable) sufficient to make the employer aware that FMLA leave is needed, as well as the anticipated timing and duration of the leave. If the need for leave is unforeseeable, an employee need only provide sufficient information for an employer to reasonably determine whether the FMLA may apply.
The sufficiency and timing of notice has been the subject of much litigation. In an Eleventh Circuit case, an employee who previously injured her knee opted for physical therapy instead of surgery. Months later, she reinjured her knee and requested FMLA leave for surgery. The district court found that her need for leave was foreseeable because she knew from the start that surgery was an option. But to the appeals court, she had no plan (or need) to undergo surgery until her reinjury, so the less stringent notice requirements applied, and she complied by giving notice as early as practicable—a day after the reinjury. Also, telling her supervisor that her knee “gave out,” “was painful,” that she could not put weight on it, and that she was going to an orthopedic surgeon was “plenty of information for an employer to reasonably determine” whether she needed FMLA leave.
Context matters in deciding whether an employee provided notice that FMLA leave was needed. For example, it could be significant if the employee took FMLA leave in the past for a condition that later makes a reappearance. In one case, an employee who previously took FMLA leave to care for her disabled son made a request to work from home because, due to work schedule changes, her childcare arrangements had to be adjusted. A federal court in Wisconsin ruled that a jury must decide if she was requesting FMLA leave or was merely requesting to telecommute. In another context, awareness of a health incident at work could suggest an employer knew of the potential need for FMLA-qualifying leave. For example, the Sixth Circuit found that an employee gave notice of a serious condition qualifying him for intermittent leave based on a doctor’s note limiting his workday to eight hours, together with the employer’s knowledge of a health incident at work (chest pains).
Don’t simply reject an insufficient medical certification. An employer may require employees who request FMLA leave to provide a certification from a health care provider. A “sufficient” certification must state: (1) the date the condition began, (2) probable duration, (3) medical facts, (4) that the employee is unable to perform her work, (5) the dates and duration of treatment, and (6) the expected duration of leave. An employer must notify an employee if the certification is incomplete or insufficient, must state what further information is necessary, and must provide the employee time to cure any deficiency before denying leave.
The latter requirement was center stage when the Third Circuit recently reversed summary judgment on an FMLA interference claim due to questions about whether an employer violated the FMLA by firing an employee who provided an insufficient certification. It was vague because, in stating a “probable duration of one month,” the certification failed to specify whether that duration referred to the length of her leave request or of her condition. Because the employer failed to tell her it was insufficient, or to state what information was needed and provide her a chance to cure the deficiency before denying her request, her interference claim was revived.
Don’t expect an employee to work while on leave (or in lieu of leave). Several cases involve employers who suggest that an employee work (even just a little) while on FMLA leave or in lieu of full-time leave. That is simply not a good idea, even when an employer asserts the best of intentions. In one case, while a bank employee was on maternity leave, the bank learned that she was far behind on testing for a software upgrade and called her to discuss the possibility of her working from home. Ultimately, she did not return early and was fired for performance issues while on leave. Denying summary judgment, a federal court in Ohio explained that because the bank was willing to let her to return to work if she did so early, a jury could infer that she was actually fired because she chose to fully exercise her FMLA rights.
In another case, an employee of a family-owned business told the owners her son was diagnosed with cancer. She asked for FMLA forms but, in lieu of leave, they formed a plan where she would receive full salary while working as much as she could during her son’s treatment. The owners claimed she had tearfully said she couldn’t afford unpaid leave. But she claimed she was discouraged from taking leave. While on the plan, she worked 5 to 25 hours per week, but she always had her work phone. At some point, the owners became upset and fired her for “lack of communication” during her remote, part-time work. She claimed the problem would not have arisen if she had clearly taken demarcated intermittent FMLA leave during which the employer couldn’t expect her to communicate. A federal court in North Carolina found the issue triable.
Although an employer should not expect an employee to work while on FMLA leave, some interactions are fine. For example, a federal court in Virginia dismissed the FMLA interference and retaliation claims of an employee who voluntarily checked in with his work team and answered questions while absent. It explained that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.” Likewise, the Fourth Circuit recently explained that requiring an employee to attend a pre-disciplinary conference in an ongoing investigation into misconduct did not constitute forcing him to “work,” so his interference claim failed as a matter of law.
Don’t include FMLA leave when disciplining for absences. FMLA claims often involve adverse actions taken over absences that arguably qualified for FMLA protection. For example, an employee in Tennessee advanced her claims based on evidence that she repeatedly told a supervisor that many of her absences—for which she was ultimately fired—were caused by her irritable bowel syndrome. In another case, Boeing was denied summary judgment on claims under a Washington law that mirrors the FMLA due to evidence that FMLA-protected leave was included in its calculation of unexcused absences leading to an employee’s termination. And a court in Wisconsin rejected an employer’s argument that an employee fired for excessive absences (due to his partner’s terminal illness and the emotional needs of their children) could not recover because he failed to adhere to its policy for submitting a leave request. A jury could find his designation of the absences as FMLA leave was enough.
These cases suggest the erring on the side of caution is warranted when calculating the number of absences an employee has before imposing discipline for excessive absenteeism. At the very least, consider whether the employee arguably provided notice that some of the absences might qualify for FMLA protection.
Don’t let your irritation show. Obviously, you can’t fire someone for requesting FMLA leave. But employers can get in trouble for other actions that indicate less than good faith compliance with the FMLA, or worse, retaliation. In one case, an FMLA retaliation claim survived summary judgment based in part on a supervisor’s email telling others that she was “irked” because an employee took the full six weeks of medical leave approved (the employee originally thought she might need less). It didn’t help that in the same email chain, the supervisor said she wanted to counsel the employee immediately upon her return and was cautioned by an HR rep that the employee should not be reprimanded for taking medical leave—suggesting to a federal court in Illinois that the supervisor was doing just that.
In another case, a call center employee who had PTSD told his supervisor that sitting next to a coworker who was sexually harassing him exacerbated his symptoms. She refused to move him and later told him she was “tired of walking on eggshells around him because of his disability.” Two days later the employee requested FMLA forms and was directed to the company’s intranet. Before he submitted the forms, though, he was fired for allegedly taking excessive breaks and dropping calls, which he claimed was due to panic attacks. To a federal court in Washington, this was enough to state a claim for FMLA retaliation.
Good faith compliance. While these five mistakes stood out in a review of recent cases, there are, of course, many more ways to run afoul of the FMLA’s requirements. For example, Staples agreed to pay $275,000 to a furniture sales executive who was never notified of his FMLA rights when he needed to take leave to care for his critically ill wife—for two years he used personal leave and vacation days and worked remotely. To avoid these types of costly compliance errors, employers should make sure HR staff and supervisors are well-versed in the Act’s requirements, and have information and forms readily available for employees who may need them.
Indeed, the failure to ascertain the FMLA’s requirements and to act accordingly can lead, in some cases, to the imposition of additional liquidated damages. In one case, a federal court in Michigan explained that such an award is normal where an employer fails to show that its act or omission “was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation” of the FMLA. In that case, the employer’s “cavalier manner” of handling FMLA obligations cost an additional $33,000.
Resources for employers who want to learn more about the FMLA are available online. A wealth of information is available on the Department of Labor’s website, which provides an overview of FMLA requirements and links to other resources, such as general guidance; posters; e-Tools; and fact sheets on how to calculate FMLA leave, rules for military family leave, and other topics.
According to the American College of Allergy, Asthma, & Immunology, allergies are a major cause of illness in the United States, affecting as many as 50 million people, or one in five Americans. One common allergy trigger, mold, can be found both in and out of the workplace, and can cause a variety of reactions, including for some, severe respiratory problems. Several recent decisions highlight issues faced by employers when dealing with employee allergies in and to the workplace.
No disability for undiagnosed mold allergy. On June 1, a federal district court in Oklahoma found that an employee for an air conditioning and heating equipment manufacturer, who insisted she was disabled by a mold allergy triggered by her workplace environment, could not show she was disabled or regarded as disabled, or that she could fulfill the essential functions of her job from home.
Two years into her employment, she sought treatment for a respiratory problem she believed was caused by her work environment. After being relocated to a newly renovated building, she submitted medical records showing she was allergic only to cockroaches.
She continued to experience breathing difficulties at work, however, and was placed on leave. Environmental testing of the workplace indicated no mold problem. When she reported being asymptomatic since leaving work, her doctor concluded she could return without restrictions. While the employee suggested she could work from home, her employer disagreed and she was ultimately terminated for failing to provide requested medical documentation. She then filed suit under the ADA.
The employee presented no evidence of an “identifiable respiratory problem.” Nor could she establish she was disabled by an actual physical or mental impairment or that her employer regarded her as having an impairment. Though she had breathing problems at work, that was not enough. Not only was there some evidence her coworkers believed her breathing problems were the result of anxiety issues, her physician found no medical evidence of any particular breathing problem. Further, medical documentation did not show a disabling condition.
. . . mystery illness. Without an ability to actually identify the underlying medical condition, the employee also could not specify accommodations that would allow her to perform her job’s essential functions. While the employer did move her office, it refused to do so again. Because she could not identify a “trigger” for her problem, there was no reason to believe a second move would help. Even diagnosing her with a mold allergy would not have made a difference, said the court, because there was no evidence of mold at the workplace. Thus, her disability discrimination claims failed.
Sick teacher ‘could not work, period.’ In a decision just days earlier, a federal district court in Connecticut found an art teacher with severe allergies, who alleged that the environmental conditions in her building caused or exacerbated her health problems, led to her cancer diagnosis, and ultimately required her to take a series of medical leaves, could not show her eventual termination was the result of disability discrimination. Nor could she show she was fired in retaliation for her complaints in the face of undisputed evidence of her employer’s sustained efforts to respond to her concerns about the air quality in her room.
After the school converted the teacher’s room into two classrooms, she became ill almost immediately, informing the principal that there were odors from the paints, sealants, and adhesives in the windowless room. Upon learning she was being treated for bronchitis, asthma, and allergic rhinitis her doctor believed might be due to environmental issues, the school made multiple accommodations, including allowing her to teach “art on a cart,” installing an air conditioning unit and a window in the room, reconfiguring the door to provide air from the hallway, providing air cleaners, and allowing her to take several leaves of absence. She was ultimately diagnosed with multiple myeloma. She then filed suit, asserting claims under the ADA, the Rehab Act, and state law. The school removed her from its payroll and eventually placed her on retirement status.
The court found she could not show she was qualified or able to perform her job’s essential functions at time her wages and benefits were terminated. Not only did her own doctor state she was not able to return to work in any capacity for the foreseeable future, no doctor had authorized her to return to work at any time since before the prior school year.
Further, she was not terminated for being unable to perform a job she could in fact perform with the right accommodations; rather, at the time she stopped receiving her salary, she could not work as an art teacher, period, said the court. In addition, she failed to show the school’s reason for her termination—that it no longer made sense to keep her on the payroll when she could not perform the job’s essential functions and there was no suggestion of when, if ever, she would be able to return to work—was pretextual.
As to her argument that she received ineffectual accommodations, the court found no reasonable jury could conclude that the multiple accommodations were provided in bad faith with the purpose of terminating her employment.
. . . holding position open longer. And while she argued that the school should have held her position open at least for the duration of her accrued sick leave, she cited no law to support her position that after multiple extended medical leaves (the last of which was a full year long) and a doctor’s letter stating she would not be able to work in any capacity for the foreseeable future, the board was nevertheless obligated to accommodate her by continuing to keep her on the payroll. Nor was there evidence that a longer medical leave would have allowed her to perform the essential functions of her job. Thus, she failed to show she was denied a reasonable accommodation.
. . . bad faith. Finally, the court found no evidence showing that the school board’s efforts to accommodate her amounted to bad faith or even a breakdown in the interactive process. Although she found the accommodations inadequate or undesirable, and they did not ultimately solve her health issues, that did not indicate a communication breakdown.
Employee with mold allergy states ADA claim. Just a few weeks later, a federal district court in the Virgin Islands found that a Department of Justice employee, who alleged her allergic reactions to workplace mold forced her to work out of her car and use sick leave and that her requests for relocation and air quality testing were denied, stated a claim for disability discrimination in violation of the ADA.
Shortly after she started working at the VIDOJ, she began experiencing pressure headaches, aggravated sinus pressure, pain around her left eye, and a numbing sensation on the left side of her face. These symptoms occurred only at work and in order to deal with them, she worked out of her car and used sick leave. She also purportedly asked her supervisor to perform an air quality test and temporarily relocate her but her requests were denied.
. . . mold in the building. Shortly thereafter, she learned the building had mold issues. Although she told her supervisor, he again denied her requests for an air quality test and relocation, advising her instead hat he was extending her probationary period and recommending termination if her attendance did not improve. Her physician then sent her supervisor a note recommending that the employee “refrain from work until the mold issue is resolved at her work place.” A second doctor recommended that she be relocated to some place free of mold and dust. She subsequently sued, asserting among other things that her employer discriminated against her in violation of the ADA by refusing to reasonably accommodate her disability.
Allegations that the employee informed her supervisor of her allergies and medical ailments on multiple occasions and that it denied her requests for temporary relocation and air-quality testing were sufficient to state a claim that her employer failed to make a reasonable accommodation to her known physical limitations, said the court. In addition, she sufficiently alleged she suffered from a physical impairment. She averred that she experienced “recurring headaches and severe allergies” while working in the VIDOJ’s office. Further, she had to work out of her car and use her sick leave to deal with the allergic reactions. Her headaches and sinus problems, caused by a mold allergy, constituted a physiological condition affecting her respiratory and immune systems. And, said the court, she sufficiently alleged that her allergic reactions substantially limited the major life activity of working. Therefore, she stated a claim that she was disabled.
And while the employer argued that she could not perform the essential functions of her job because she could not work while physically present in the office, the court pointed out that it unwittingly conceded her allergic reaction to conditions in the workplace prevented her from doing her job. Finding that the employee sufficiently averred that she was qualified for her job, the court denied the employer’s motion to dismiss her claim.
Chemical-sensitive employee. That same month, a federal district court in Pennsylvania ruled that an employee fired after almost a year’s worth of wrangling with her employer to obtain a fragrance-free work environment to accommodate her chemical sensitivity could present her disability discrimination and FMLA claims to a jury.
. . . fragrance free zone. Five years into her employment, the employee developed a heightened sensitivity to chemicals and fragrances, which led to severe headache. She asked her employer to provide a fragrance free zone in which she could work and in response, the company moved her to another area, provided her with an air purifier, and issued a penalty-free “No Fragrance Memo” to employees on that floor. The worker seated next to her, however, wore perfumes every day and many workers openly objected to the policy.
When the employee complained, the memo was re-circulated, again without any associated penalties for violation. Upon learning that the coworker she sat next to had been specifically exempted from the policy because of a skin condition, the employee complained and the coworker was finally moved to a different location. The employee also noted that the air purifier was broken and not necessarily effective. She subsequently took nine days of FMLA leave.
. . . reissued memo (again). Four months later, the employee again requested that the no-fragrance policy be circulated, complaining that the fragrances were getting worse instead of better. The employer modified the memo to include body lotions and sprays, as well as a threat of disciplinary action for non-adherents, and reissued it.
. . . laid off. The employee continued to complain about migraines from perfume fragrances. She requested intermittent FMLA leave and worked with her supervisors and HR to find a location where she could function. However, she ultimately received a letter informing her that she had been laid off because, in spite of the employer’s self-proclaimed “extraordinary efforts to accommodate” her, she still had not been able to consistently perform the essential functions of her job. The employer explained that the accommodations it had provided had not allowed her to report to work regularly and it did not have work available that met her restrictions. She subsequently sued, alleging violations of the FMLA, the ADA, and state law.
. . . FMLA claims. In arguing that the employee was not eligible for or denied FMLA leave, the court noted that the employer appeared to rely on the fact that it never responded to her final request for intermittent leave. Here, the court found that the employer had, at the very least, constructively denied her request by firing her, which could constitute interference. Moreover, although it claimed that the requested leave was indefinite and unpredictable, when viewed favorably to the employee, her request would have accommodated her flare-ups and allowed her to work for a substantial number of hours each week. Material fact disputes persisted, therefore, regarding her interference claim.
As to her retaliation claim, the court found no evidence that her supervisors had expressed concerns about her absences or any other performance issues prior to her leave request. Additionally, the correlation of the employee’s request to her termination, only a few days later was suggestive of a retaliatory motive, said the court.
. . . disability discrimination. Further, the employee presented sufficient evidence that she was “disabled” within the meaning of the ADA. She asserted that several major life activities had been substantially limited by her condition, including “breathing, thinking, concentrating, perception, taste, and work.” She also demonstrated that she sought medical treatment from several physicians and specialists and alleged that she suffered frequent and debilitating headaches. She provided substantial documentation of her condition to her employer, as well.
She also presented evidence that she was a qualified individual. While the employer contended that the ADA does not protect employees who have “erratic and unexplained absences,” the court noted that her absences were not unexplained. In fact, her condition was triggered by stimuli that were at least somewhat within the employer’s power to control. If it would not sufficiently administer or enforce its no-fragrance policy, then, said the court, it might have to accept that the employee would have to take some time away from that environment. Observing that her request for a few hours off of work for flare-ups was distinguishable from an employee who is completely missing in action for months with no end in sight, the court found the employee had sufficiently shown that, with reasonable accommodation in the form of finite periods of medical leave, she was able to perform the essential functions of her position.
By Lisa Milam-Perez, J.D.
Dealing a major setback for unpaid interns hoping to convince a court that they are “employees” entitled to minimum wage and overtime pay under the FLSA, the Second Circuit rejected the Department of Labor’s six-factor test of “trainee” vs. “employee” status. Instead, addressing an issue of first impression, the appeals court adopted the “primary beneficiary” approach favored by the presumptive employer: Fox Searchlight, the defendant in a closely watched lawsuit brought by former production and publicist interns. The Second Circuit, which presides over the epicenter of (largely New York-based) intern wage litigation, also set forth its own “non-exhaustive” list of factors to consider in evaluating which party gains the primary benefit from the internship.
Even more problematic for interns seeking to pursue their wage claims on a class basis, the key question—which party gains the most from the internship—can’t be answered with generalized proof. Because “the question of an intern’s employment status is a highly individualized inquiry,” the appeals court vacated an order conditionally certifying the interns’ FLSA collective and certifying a Rule 23 class under the New York Labor Law.
Background. The FLSA collective action against Fox was brought by former production interns on the Oscar-winning movie Black Swan and a publicity intern at the company’s New York corporate office, the latter of whom also brought a Rule 23 class action under the NYLL. The allegations were the same, as to both claims: The interns should have been classified as employees and thus should have been compensated for their efforts. A district court granted their partial motion for summary judgment, concluding they were improperly classified as interns; it also certified the New York class and nationwide FLSA collective.
Then, at Fox Searchlight’s urging, the court certified its order for immediate appeal, inviting the Second Circuit to decide the appropriate standard for evaluating whether “interns” are employees; whether the court had correctly declared the Fox interns to be employees; and whether the court properly certified their New York class and nationwide collective actions. The starting point: The parties agreed, in theory, that “there are circumstances in which someone who is labeled an unpaid intern is actually an employee entitled to compensation under the FLSA.” They also agreed with the countervailing notion that unpaid interns are often not employees under the FLSA. The dispute lay within those parameters.
Academic, yes… For their part, the plaintiffs said interns should be deemed employees “whenever the employer receives an immediate advantage from the interns’ work.” The DOL appeared on the interns’ behalf and also to defend its own six-factor test, issued in 2010, for defining interns vs. employees. Fox Searchlight argued for a more “nuanced” test, in which an employment relationship inheres when the benefits to the intern, both tangible and intangible, are greater than the intern’s contribution to the employer’s operation. The latter approach won out.
As the Second Circuit saw it, the test favored by Fox jibes with the economic realities of the internship relationship, focusing on “what the intern receives in exchange for his work,” and more fittingly accounts for the totality of the circumstances. As for the DOL test? It was unpersuasive and “too rigid” for circuit precedent; the appeals court refused to defer to it.
Having framed the proper question as “whether the intern or the employer is the primary beneficiary of the relationship,” the appeals court proposed a list of “non-exhaustive factors” to aid courts in answering that question. Its newly crafted test better reflects, in its view, “a central feature of the modern internship—the relationship between the internship and the intern’s formal education.” It wrote, “By focusing on the educational aspects of the internship, our approach better reflects the role of internships in today’s economy.”
… but not a class. The appeals court also held the lower court erred in concluding that common questions of liability predominated over individual damages calculations. The evidence was not sufficient to resolving each intern’s employee status—a highly individualized inquiry. “Common evidence will not help to answer whether a given internship was tied to an education program, whether and what type of training the intern received, whether the intern continued to work beyond the primary period of learning, or the many other questions that are relevant to each class member’s case,” the court explained. “Moreover, defendants’ undisputed evidence demonstrated that the various internship programs it offered differed substantially across the many departments and four Fox divisions included in the proposed class.”
For the same reasons, the lower court erred too in conditionally certifying the FLSA collective. The proposed class members were not similarly situated “even under the minimal pre-discovery standard,” the appeals court said. “Under the primary beneficiary test we have set forth, courts must consider individual aspects of the intern’s experience. None of the common proof identified by [the plaintiff], and relied on by the district court, will address these questions.” If anything, given the nationwide scope of the proposed FLSA class, the proposed collective presented “an even wider range of experience” than the Rule 23 class, and so was even less suitable for resolution on a classwide basis.
Bottom line. In the end, the Second Circuit found it conceivable that an intern might well be a statutory employee in certain circumstances, and it was confident that its new test could suss out those cases. On remand, the appeals court invited the court below at its discretion to allow the interns to submit more evidence of their employment status (particularly as it relates to their formal education), and it professed to have no opinion as to how the interns might fare under the primary beneficiary test set forth here.
As to whether that question could ever be resolved on a class or collective basis? That prospect seemed largely foreclosed.