HR & the Law in the News
November 2015, Volume 14, Issue 11
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. 

Check out the upcoming events including this month's webcast, "Employment Law Update 2015: The Year in Review" pre-approved by HRCI and SHRM for 1.25 credits! Click here for more info. 
FMLA Half Full or Half-Empty?            
No, this isn't about an office party gone awry.  But it is about almost getting it right but not quite enough. Let me give you the short version.  For seven years employee Brown performed well receiving excellent ratings on performance evaluations.  But when she was promoted she made some serious errors that more than embarrassed the employer; they nearly caused significant financial loss. Rather than fire Brown, the employer noted these struggles on Brown's performance appraisal and they delayed her first scheduled raise for six months. Subsequently Brown took 12 weeks of FMLA leave following diagnosis of breast cancer.  Upon her turn the employer provided her with additional training and her work performance in the new job improved.  The following year Brown needed FMLA leave again, this time for a high risk pregnancy. Now here's where the timing comes in. 
  1. A few weeks before the employee told HR of her need for FMLA leave a new manager met with HR to discuss a restructuring and reduction-in-force (RIF).  Brown was identified along with two coworkers as a candidate to be RIF'd. They planned, however to transfer her to another position in lieu of termination.  
  2. After the employee tells HR of her need for FMLA leave, they decide to wait to tell the employee about the plan to transfer her to prevent imposing any further stress.
  3. Around the same time as Brown had her child a client tells the employer it would no longer be using the employer's services.  So HR and the manager return to the plan to implement the RIF.
  4. They tell Brown about the plan to transfer her. Brown viewed it as a demotion despite the fact they were keeping her at her current rate of pay and with the same benefits.
  5. Shortly after Brown returned to work from FMLA the plan was finalized to implement the RIF.  The plan was for two of the three employees previously identified to be fired; Brown was told she would be retained but her pay would be cut by 10% and she would no longer being permitted to work from home one day a week as she had prior to her FMLA leave.
  6. Brown complained to HR and five days later she was fired instead of one of the coworkers. You can guess what comes   
Half Full #1 - Brown claims there was no preliminary meeting between the manager and HR to discuss a RIF. The employer had no proof or "written business records" to show that the preliminary conversation between the manager and HR took place. In addition, Brown found two coworkers who said they knew nothing about the meeting asserting their testimony served as evidence that the meeting did not take place.  So who wins the argument?  The court noted, that the two coworkers' "lack of personal knowledge would prevent their testimony from establishing a triable issue of fact" and summary judgment in favor of the employer was proper on that issue.

Half Full #2 - Brown next claimed that she was retaliated against for taking FMLA leave because, even if there was a preliminary discussion about possibly transferring her to another position before she told them of her need to take FMLA leave that decision was not implemented until after she took the leave. The court did not agree.  "Proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality."

Half Empty - So where did the employer go wrong? Here is proverbial third leg of the stool. Now Brown claims that even if the meeting did happen and even though it was implemented after she took FMLA leave; it was not the original plan and the decision to fire her instead of a coworker after she talked to HR violated the FMLA. The employer's defense was that Brown was able to take all her FMLA leave. The courted noted that the employer, "...misconceives Brown's claim...Brown's entitlement claim is distinct from her discrimination claim, in which she alleges that [the employer] took adverse action against her because she took maternity leave." The court found that despite its problems Brown's claim did fall within the framework of an FMLA claim. Brown v. Diversified Distribution Systems LLC
The Evolution Continues: Are You My Employer?
The nature of workers, working relationships and the nexus workers have to those who engage them continues to evolve.  Take the sharing economy; in today's world we can buy or rent most anything, from a ride to a room with the tap of a phone. You have likely heard about litigation regarding the status of workers providing services for Uber, Amazon and more. So what's the relationship of the parties to those transactions? When does the engagement of a person to provide a service become an employer/employee relationship?  But that's just one horizon.  What about two corporate entities, independently owned and operated but sharing "indirect" control over workers. Are they joint employers?   

Let's bring the issue closer to home.  Consider workers you use from a temp agency or employees of a subcontractor to whom you subcontract some work.  Could the other entity and your company be considered a joint employer of all employees of both companies?  And, so what; why do we care and what are the implications?  In short, the NLRB recently ruled that if two entities share control "indirectly or through an intermediary" over the employees of the other entity they may be joint employers over those employees.  This means that you could be required to recognize one or more unions representing the other employer's employees or become subject to related union organizing efforts.

Now Congress has responded.  The Protecting Local Business Opportunity Act proposes to return the interpretation of joint employer status to its former requirement that an employer exercise "actual, direct and immediate" control over an employee in order to be classified as a joint employer.

Stay tuned. In the interim think about the various working relationships you have with persons providing services for your company. Ensue they are properly classified as an independent contractor, unpaid intern, volunteer or employee.    
  •  Wednesday, November 4th - Webcast, "Employee Handbooks" hosted by NAMIC 2:00 - 3:00 pm EST
  • Tuesday, November 17th - Webcast, "Workplace Flexibility" hosted by NAMIC 2:00- 3:00 pm EST
  • Wednesday, November 25th - Webcast "Employment Law Update 2015: The Year in Review" hosted by FiveL Company 10:00 - 11:15 a.m. EST pre-approved for credit by HRCI & SHRM for 1.25 hours.
Click here for a full listing

Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.