Thursday, August 20, 2009

The Importance of Clear Documentation in Post-IRIF Re-hiring Decisions

Yesterday, the Sixth Circuit issued a decision in an involuntary reduction in force (IRIF), failure to rehire lawsuit involving the Wellmont Hospital in Kingsport. The hospital did a lot of things right when it eliminated the job of a 54-year-old physical therapy technician ("PTT") in 2003. Being something less than a heartless employer, the hospital tried to work with displaced employees to find them other jobs within the hospital. The hospital even offered to interview the PTT for a position at the same pay grade but the PTT didn't show for the interview or express any other interest in that position. The hospital later offered the PTT a different job (same pay grade) but she turned it down because (apparently) she would have to work three 12-hour shifts instead of five 8-hour shifts. Later, the PTT claimed to have expressed an interest in a job but someone else was hired for it. This last failure to rehire claim was the only claim that the court of appeals sent back for a trial. The IRIF aspect of the decision is unremarkable – the plaintiff lost because there was no evidence of age bias and she could not support her pretext argument with record evidence.

The reason the appeals court held a trial was necessary on the failure to rehire provides a good lesson for Tennessee employers.

Of course, "[w]here an employer reduces his workforce for economic reasons, it incurs no duty to transfer an employee to another position within the company." Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986). As this decision shows, the same rule applies to failure to rehire previously laidoff employees. Owens v. Wellmont Inc., ____ Fed.Appx. ___ (6th Cir. 2009).

Unfortunately, the Sixth Circuit's decision is yet another example of the well-settled rule that no good deed goes unpunished. The PTT never formally applied for the position. That did not justify dismissal, the court of appeals held, because the PTT specifically identified to the employer the position she wanted and, critically, the hospital "had offered [the PTT] positions in the past without a formal application."

Not requiring some formal application was one thing. What really sunk the employer's argument was that it did not unambiguously establish the minimum selection criteria for the position before announcing the vacancy. The hospital argued the PTT did not have the license it preferred for the job but the court held the evidence did not clearly establish whether this requirement was imposed before the position was filled. Also, the hospital did not have unambiguous records showing when the vacancy opened, when the vacancy ended, whether the position was filled, or the identity of the person filled it (and her qualifications).

The lesson the case presents is pretty clear. It is not that employers should be heartless and make no effort to find other jobs for impacted employees. It is not heartless, however, to require impacted employees (or even former employees) to submit some type of formal written application for other vacant positions. While using a signup lists is a better practice than requiring nothing, I also recommend against these as well because it is far too easy for impacted employees to walk around the room (or log onto a computer) and express an interest in every vacancy without regard to whether they have the minimal training and experience for the position. The process should not, of course, be too onerous but it should, at least, put some burden on impacted employees to demonstrate why their training and experience makes them minimally qualified for the position.

IRIF decisions are tough enough; employers don't need to complicate things by overlooking what happens after the IRIF has been implemented. So, Tennessee employers who are hiring or transferring impacted employees after conducting an IRIF should (at a minimum):

  • be unambiguous in requiring a formal application for every vacant position
  • make sure the minimum selection criteria for the position have been established, in writing, before the vacancy is announced
  • set clear dates for when the job is "vacant"
  • document when the job is filled and by whom
  • send all unsuccessful applicants something (even if it is just an e-mail) that tells them they were not selected for the position.

The last point is important not just because it is a courteous thing to do but primarily because it removes any doubt about when the statute of limitations begins to run. It is not necessarily required, see Cline v. BWXT Y-12, LLC, 521 F.3d 507, 512 (6th Cir. 2008), as the limitations period starts to run "as soon as a potential plaintiff either is aware, or should be aware after a sufficient degree of diligence, of the existence and source of an actual injury," but giving a clear notice to unsuccessful applicants can make it much easier to establish that the lawsuit (or charge) was untimely.

Thursday, August 6, 2009

FMLA - Court Holds Requiring Employee to Return a Doctor's Note Doesn't Violate FMLA

Wow, a month without a post. Sorry about that. Its a combination of being busy and something of a summer lull in employment law developments.

Today, however, the Sixth Circuit made a point in an FMLA decision that bears comment.

The employee told his employer he wanted to take a personal day and when that request was denied, demanded to be permitted a day of FMLA leave. The employer told the employee (according to the court) that "he would incur an attendance 'occurrence' if he did not come to work." The employer also explained, however, that the employee "would receive a violation only if he did not produce a doctor’s note explaining his absence." As the court explained it, "that statement’s logical implication is that Anderson would not incur a violation if he did produce a doctor’s note."

The employee, however, chose to work the day he wanted off because he thought he had accumulated too many unexcused absences and would be fired at the next one. He brought in a physician's note after the fact.

The employer's demand for medical proof was perfectly fine, even if not phrased in the best matter, because the "request for a doctor’s note was within an employer’s right “to determine whether [the] absence [was] potentially FMLA-qualifying.” 29 C.F.R. § 825.303(b). The employee, who had diverticulitis over two years before the incident, could have submitted FMLA certification but didn't.

(Shortly afterward, the employer fired the employee for an altercation. The employer prevailed on that claim as well.)

The point is rather simple. There's no question that an employer has the right to require some type of medical justification for any FMLA absence. The issue here was whether the employer did something improper by implying that the absence would be unexcused if the employee failed to submit a medical justification.

But explaining what might happen if certification is not provided isn't just a good practice, one that saved this employer from an FMLA interference claim, it is mandated by the FMLA regulations. Under 29 C.F.R. 825.305(d), when the employer requests certification from the employee, "the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification."

Medical justification is, of course, different from requiring adequate notice of the need for FMLA leave. The employee here had given ample notice about the need for leave, even accusing the employer of violating the FMLA by refusing his leave request. The employer stuck to its guns, rightly so, and insisted on receiving adequate medical justification.