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KNOW WHEN TO SAY NO TO EMPLOYEE CLAIMS:
HOW TO TAKE ADVANTAGE OF THE TREND TOWARD A MORE PRACTICAL INTERPRETATION OF THE ADA AND THE FMLA
Many employers presume that the law of the workplace is always their enemy, and that they will inevitably be liable for all but the most outrageous employee demands. They view their ability to avoid lawsuits as a daunting, difficult task likely to bear minimal fruit. They use that perspective as an excuse not to pursue the effort to acquire and apply the knowledge base and practical training that leads to real lawsuit prevention.
This is a dangerous outlook, and it becomes a self-fulfilling prophecy. But we have stressed the need for realistic lawsuit avoidance training in past issues of Avoiding Lawsuits, and won't reiterate that now. The fundamental message of this issue is a bit different.
There's another way to minimize employee lawsuits, in addition to training managers on the recognition and prevention of situations that lead to lawsuits: deterrence. How? To borrow a phrase, just say no. When the employee files a claim, dig in your heels, fight the fight, and win. Almost nothing prevents future employee claims better than the successful defense of a pending employee claim. Once an employee loses a claim and the word of that loss spreads, as it inevitably does, other employees lose their enthusiasm to pursue borderline claims, which are the kind of claims that are the most common and the most difficult to avoid.
The opposite, however, is also true - losing an employee claim can encourage others to bring suit. So the trick is to pick your spots - know when to say no to employees. Knowing when to say no takes judgment founded on knowledge, but here is the key: the scope and scale of the spots where you can confidently say "no" has been expanding, as courts take a more practical and real world look at the Americans with Disabilities Act and the Family Medical and Leave Act, in particular. Understanding those situations - the situations where you can make an example out of an employee, take a hard line, win, and send a chilling message in the process - is a crucial skill for any employer interested in avoiding lawsuits.
Here are some examples.
The "I'm too stressed out to work" claim. Consider the case of Francis Carroll, who worked for Xerox in Boston. Carroll was a sales manager. In 1995, in response to tough times, Xerox eliminated many of Carroll's support personnel, while at the same time increasing his target sales figures by almost 100%. Carroll started to break under the pressure, and requested early retirement, which was denied. He ended up in an emergency room with chest pains, which a doctor concluded were "probably" stress related. Carroll took a three-month disability leave, and sought and obtained a transfer to a sales position in Houston, at a lower salary.
At that point, Carroll sued Xerox under the ADA. Carroll claimed that he was disabled by inordinate amounts of work-related stress, and that in view of this disability, under the ADA Xerox had an obligation to reasonably accommodate him by either reducing his workload in Boston, or by maintain his salary level even after he transferred to a lower paying job in Houston.
Many employers - jaded and shell-shocked by tabloid reports of huge recoveries - would likely presume that Carroll would get something for his efforts, and that the employer should be looking to pay him off in order to avoid a potential runaway jury verdict. In so doing, those employers would lose a golden opportunity to make their other employees think twice before making their own claims.
Xerox knew when to say no. Xerox knew that recent Supreme Court interpretations of the ADA tightened the kinds of conditions that qualify for treatment as a "disability" under the ADA. It dug in its heels, and Carroll's claim was dismissed on summary judgment (i.e., before it even got to trial). The court ruled that, consistent with the recent Supreme Court decisions, in order for a condition to qualify as a "disability" under the ADA, it had to be much more than an employee's reaction to the specific demands of a particular job. Rather, the employee has to prove that the claimed disability significantly restricts his or her ability to perform a class of jobs, and not just the specific requirements of the specific job that the specific employee faced at the time. The fact that Carroll was able to perform the job in Houston was itself enough to defeat Carroll's claim, since it proved that Carroll was not really "disabled" within the meaning of the ADA.
Had Xerox paid off Carroll, every employee with a stress-related headache induced by having to meet job-related deadlines or demands would have been encouraged to file their own ADA claim. The Xerox managers who dealt with Carroll had enough of a knowledge base in the law to know where to draw the line.
The "I'm sick and need time off from work" claim. The Family and Medical Leave Act grants eligible employees up to 12 weeks of unpaid leave per year in the event the employee suffers a "serious health condition" or family emergency that fits within the FMLA's definitional parameters. While the employee is on leave, the employer generally has to hold the employee's position open for the employee, and employers are prohibited from discriminating against or discharging employees who exercise their FMLA rights.
When the FMLA first became law, employers began facing a practical issue that took an extreme toll in time, money and efficiencies. The FMLA provided that when the employee knew in advance that he or she would require FMLA leave (i.e., the employee knew that surgery was scheduled, or that a baby was due), the employee had the obligation to provide the employer with at least 30 days' notice before the leave began. But what if the employee did not know in advance that he or she would require leave, as in the case of a sudden illness? To fill that gap in the law, the Department of Labor promulgated regulations stating that when an employee did not have reason to foresee the need for FMLA leave, the employee had the obligation to give the employer notice, as soon as "practicable."
This led to a spate of cases in which employees would leave cryptic, last minute voice mail or similar messages for employers, stating that they had to be out for awhile because of an emergency, or a family situation, or an illness. Often, the employer could not find the employee to obtain further information, or the employee would be less than forthcoming. The employer then faced a high stakes game of chance - incur the expense, inconvenience and inefficiency of holding the employee's job open during the employee's absence; or risk an expensive lawsuit by terminating the employee for being absent without permission or explanation, knowing that an FMLA lawsuit would be forthcoming.
The courts began to realize the impracticalities of allowing employees to deal with their employers in this way, and recent decisions have required that, to qualify for FMLA treatment, employees must give their employers enough information to allow the employer to reach a reasoned decision on whether the employee's condition or circumstance falls under the FMLA. That requirement is now being fleshed out, and it is providing employers with a substantial safe haven.
A Pennsylvania federal court recently faced a situation in which an employee left a voice mail message for an employer, requesting "family leave" to deal with a "family situation" - no other details. In fact, unknown to the employer, the employee was suffering a bi-polar episode, and was hospitalized, but the employee did not share that information with the employer, who unsuccessfully tried to track down the employee to find out what was going on.
The employer knew when to say no. It took the position that the employee did not provide sufficient information to qualify for FMLA leave, that the employee was therefore absent without permission, and it terminated him. Predictably, the employee brought an FMLA suit. At trial, the employer proved that the employee's supervisor had called the employee twice, leaving messages and informing the employee that the employer needed more information to determine whether the employee's reason for leave qualified under the FMLA. The verdict: for the employer. The employee failed to provide the requisite level of information, and as a result the employer was deemed to be within its rights when it terminated the employee.
In another recent case, an employee claimed that she had a severe toothache with facial swelling, and that she was unable to work as a result. She provided a note from her dentist, but the note only stated that the employee had seen the dentist, and did not specifically state that the employee was unable to continue working.
Again, the employer knew when to say no. The employer denied the requested FMLA leave and provoked a suit. The court found that the employee's dental condition did not meet the definition of a "serious health condition" under the FMLA, and that the employee had not provided sufficient documentation that she was unable to work. The employee's self-diagnosis, whether or not in good faith, was not enough.
Think of the deterrent message this action sent to the work force: employees will know that it will not suffice to obtain the ubiquitous, generalized doctor's notes that medical providers seem to hand out without question or analysis. Now, the employee will have to insist that his or her doctor provide a real, written opinion and assessment, which the doctor may be required to justify under oath. You can bet that doctors will be much more reluctant to hand out excuses when they actually have to lay out the details and offer a real medical opinion.
The upshot of the "know when to say no" approach is simply this. The pendulum has begun to swing towards business practicalities - while the foundational changes the law imbued over the last two decades into the employer-employee relationship remain in place, the way in which those changes are being applied and interpreted seem to be favoring a more realistic and balanced approach. This has opened up an increasing array of situations in which "just say no" is the proper approach, but you can take advantage of this development, and reap the deterrent effects it will engender, only if you know when to fight, and when to cut and run.
Bottom line: there is another arrow in your quiver; it won't work in every situation; but if you pick your spot correctly, it's a thing of lasting beauty.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
