A new Indiana law (House Enrolled Act No. 1482) that protects the rights of individuals whose arrests and convictions have been expunged by court order will take effect on July 1, 2013.  This new law will affect employers in Indiana because it prohibits employers from discriminating against anyone because of an arrest or conviction that has been expunged.  An employer who does discriminate or asks about arrests or convictions that have been expunged would be guilty of a Class C infraction and may be held in contempt of court. 

The new law establishes a procedure where persons who have been arrested or convicted can petition a court to expunge the records after a certain number of years have gone by, depending on the seriousness of the offence. This law is in addition to Indiana’s so-called “Legal Lie” law that caused some controversy last year.  See our HR Insights Blog post from March 28, 2012   Indiana Criminal History Information – A New Restriction for Indiana Employers.

Provisions That Affect Employers

Here are the provisions that affect employers:

No Discrimination

• It is unlawful discrimination for any person to:
  • Suspend;
  • Expel;
  • Refuse to employ;
  • Refuse to admit;
  • Refuse to grant a license; or
  • Otherwise discriminate against any person because of a conviction or arrest record expunged or sealed under the law.

Negligent Hiring Defense

• In judicial or administrative proceedings that allege negligence or other fault, the order of expungement can be introduced to show that due care was used in hiring or retaining the person whose record was expunged.

• A person’s conviction that has been expunged cannot be used as evidence in an action for negligent hiring against the employer who relied on the order.

Questions on Job Applications

The new law also suggests language for use in all Indiana employment Applications:

• In any application for employment, a license or other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests such as:

“Have you ever been arrested or convicted of a crime that has not been expunged by a court?”

Caution and Heads Up

However, Indiana employers should not take this suggested language literally.  Inquiry into arrest records has generally been prohibited for decades.  As we have previously reported, the EEOC and the OFCCP have weighed in recently on the use of conviction records.  The bottom line for Indiana employers whose employment applications seek past conviction information – those applications should be reviewed before July 1 to make sure the inquiry excludes records that have been expunged by a court.

Please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney for any questions or assistance in reviewing your employment applications.

Many employers have medical leave policies.  Most of those policies allow leave for a maximum duration often three to six months or even up to a year.  The FMLA, of course, guarantees job protection for 12 weeks.  But what is an employer to do if an employee has used up their FMLA leave (or is otherwise not eligible for FMLA), and they reach the maximum medical leave under the employer’s policy?

A Costly Mistake

Some employers apply their medical leave policies to the letter and terminate an employee who was not able to return at the end of the maximum leave time period.  That practice got a large bank in some large trouble with the EEOC, and it cost the bank $400,000 to settle a class action.  On top of that the bank was required to establish a detailed procedure to make sure that at the end of a medical leave employees were able to request an accommodation by extending the leave.

Consent Decree Gives Employers Something to Think About

The terms of the court approved Consent Decree highlight the EEOC’s focus on medical leave policies that are applied literally without consideration of possible reasonable accommodation for the employee who has used up all the leave available under the policy.

Besides having to pay 14 employees a total of $400,000, provide training, maintain detailed records of medical leaves and post a notice of the Decree, the bank had to modify its medical leave practices.  Here is what the bank was required to do, and it offers some guidance for any employer to make sure its practices won’t become the focus of an EEOC class action complaint:

• Identify an “Accommodation Consultant” whose job it is to comply with the ADA and be the go-to person for employees on medical leave who want an accommodation.
• The employer may not terminate any employee on leave without the approval of the Accommodation Consultant.
• Before the end of any medical leave all physician releases and other communications must be provided to the Accommodation Consultant for review.
• Employees on medical leave must be informed of: 1) how long their position will be held open; 2) the right to request an accommodation of holding the position open longer than the policy allows; 3) the name of the Accommodation Consultant or staff member to contact for an accommodation.
• The employer may not permanently fill a position before an accommodation request has been made and decided.
• No later than 20 days before the end of any medical leave of more than 30 days the employer must inform the employee of the right to a reasonable accommodation that could include: 1) modified duty; 2) part-time work; 3) intermittent leave; 4) reassignment to a different position; 5) additional job protected leave; or 6) assistive devices.
• For employees who request an accommodation but whose jobs have been filled, the employer must consider transfer to an open position for which the employee is qualified.

This settlement underscores the need for employers to always be aware that disabled employees are entitled to a reasonable accommodation – if requested and so long as it does not cause an undue hardship on the employer.  The way to do that is through the good faith interactive process that we have talked about in the past. While the terms of the consent decree apply only to this bank and employees who are “disabled” under the ADA definition, the process is worth considering.

Reference:  EEOC v. Harris Bank, (E.D. Ill., Case No: 1:12cv07793 May 2, 2013)

Please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney if you have any questions.

Just last month, a similar question made its way to the Seventh Circuit Court of Appeals in Renee Majors v. General Electric Co., No. 12-2893 (7th Cir. 2013), and fortunately for employers, the court found that this plaintiff-employee’s “shared lifting” accommodation request was unreasonable.

Qualified Individuals with Disabilities and the Reasonable Accommodation Obligation

Under the Americans with Disabilities Act (“ADA”), job applicants and employees with physical or mental impairments are considered “qualified” for a given position if they can perform the essential functions of the job “with or without a reasonable accommodation.”  Notably, however, a proposed accommodation that imposes an undue hardship on the employer is not considered “reasonable” under the law.  Of course, many legal battles have been waged over these legal standards, especially with regard to the proper interpretation of “reasonable accommodation” and the question of whether certain lifting requirements can be shared among co-workers.

Shared Lifting as a Reasonable Accommodation

Due to a work-related shoulder injury, the plaintiff in Renee Majors v. General Electric Co. was unable to lift more than 20 pounds. Nonetheless, she applied for a position that required heavy lifting, suggesting that another employee could lift heavy objects for her whenever necessary.  Unimpressed by this proposed accommodation, General Electric (“GE”) passed over the plaintiff, even though she was next in line based on GE’s seniority-based bidding system.

Believing that her right to a reasonable accommodation had been violated, the employee initiated legal action against GE, claiming that it should have awarded her the position and required another employee to do her heavy lifting for her.  The trial court disagreed, granting summary judgment to GE.  The employee then appealed to the Seventh Circuit Court of Appeals.  Upholding the trial court’s decision, the Seventh Circuit agreed that it was not reasonable for the plaintiff to expect GE to accommodate her lifting restriction by allocating the heavy lifting to another employee.  Therefore, because she could not perform the essential function of heaving lifting, she was not medically qualified for the position and was not wronged under the ADA when she was passed over for it.

Plaintiff’s Retaliation Claim Also Unfounded

Notably, the plaintiff also claimed that GE retaliated against her for bringing her ADA complaint when it supposedly denied her overtime hours and the opportunity to work on certain Fridays.  Finding that the plaintiff failed to successfully establish a causal link between her EEOC filing and the alleged retaliation, the Seventh Circuit affirmed the district court’s grant of summary judgment on this allegation as well.  According to the court, the plaintiff’s only evidence of retaliatory treatment was close temporal proximity between the EEOC filing and the alleged denial of overtime.  According to the court, this was not enough, especially since the plaintiff could not point to any “similarly-situated” co-workers who were treated more favorably than she was treated.

The Lesson for Employers  

The obvious lesson for employers is that, under most circumstances, courts within the Seventh Circuit will not require them to accommodate employees with lifting restrictions by spreading essential lifting requirements among other employees.  In order to achieve such a favorable decision, however, an employer must be able to demonstrate that it went to the effort of meeting with the applicant/employee and, in good faith, engaged in an interactive dialogue to come up with an appropriate accommodation (including a review of vacant positions that the individual can do).  If, at that point, neither party can devise a reasonable accommodation for the lifting restriction, an employer may make the hard decision to deny the application or discharge the employee, rather than require another employee to do an essential part of the job.

If you have any questions or would like additional information about this case or the reasonable accommodation process, please contact Steve Lyman at slyman@hallrender.com, Travis Meek at tmeek@hallrender.com or your regular Hall Render attorney.

Back in August 2011, the NLRB published a rule that would require private employers to post in conspicuous places a government poster intended to notify employees of their rights under the NLRA.  Business groups challenged the rule, and the NLRB delayed the effective date several times.  Then in early 2012, courts got into the act and struck down parts of the rule and eventually enjoined the rule until the appeals court heard and decided the case.  Today, May 7, 2013, the court of appeals has ruled, and the NLRB’s Notice Posting Rule has been vacated.  The 32-page opinion of the Circuit Court of Appeals for the District of Columbia (the same court that ruled that the recess appointments to the NLRB were invalid) struck down the NLRB’s rule because it forced employers to post “speech” in violation of the employers’ rights under the First Amendment and because the NLRB’s rule improperly extended the statute of limitations for filing an unfair labor charge if the Notice had not been posted.

We have been following the evolution of the NLRB’s Notice Posting Rule.  You can access those articles here, here, here and here for some historical background.

This decision is good news for employers.  Ultimately, even this decision may find its way to the Supreme Court.  But for now, the requirement to post a Notice of Employee Rights is dead.

Reference: National Association of Manufacturers v. NLRB, (U.S. S.Ct. N0.12-5068, May 7, 2013) 

If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.

Voluntary Classification Settlement Program

In 2011, however, the IRS implemented an alternative approach when it started a voluntary program that allows eligible employers to prospectively treat one or more classes of their workers as employees and receive partial relief from federal employment taxes.  A prior summary of that program can be found here.  Known as the Voluntary Classification Settlement Program, or VCSP, it has been well received by employers/taxpayers according to the IRS.  Based on feedback the IRS has received from taxpayers and practitioners, the IRS made two announcements in December of 2012 detailing modifications to the program.  The changes clarify certain aspects of the VCSP and, in some cases, relax the eligibility restrictions, which may make the VCSP more enticing for some employers.

VCSP – Permanent Changes

First, in Announcement 2012-45, the IRS announced the following permanent changes:

• An employer under IRS audit, other than an employment tax audit, is eligible to participate in the VCSP.  Previously, an employer could not participate in the VCSP if it was under an IRS audit.
• An employer no longer must agree to extend the period of limitations on assessment of employment taxes as part of the VCSP closing agreement with the IRS.  Previously, an employer was required to extend the period of limitations on assessment of employment taxes in order to benefit from the VCSP.
• An employer who is a member of an affiliated group within the meaning of section 1504(a) is not eligible to participate in the VCSP if any member of the affiliated group is under employment tax audit.
• An employer is not eligible to participate if the employer is contesting in court the classification of the class or classes of workers from a previous audit by the IRS or Department of Labor.

VCSP – Temporary Changes until June 30, 2013

Second, in Announcement 2012-46, the IRS announced the following temporary changes, which are only available through June 30, 2013:

• An employer who has not filed all required Forms 1099 for the previous three years with respect to the workers to be reclassified is nonetheless eligible for the VCSP through June 30, 2013.  Under the standard program, a taxpayer must have filed all required Forms 1099 for the previous three years to be eligible for the VCSP.
• An employer who participates in the VCSP through this provision will be required to (i) furnish to the workers, and electronically file with the IRS, all required Forms 1099 for the workers being reclassified for the previous three years, and (ii) pay a higher settlement fee in comparison to the standard VCSP.

Application Process

To participate in the VCSP, an employer must apply using Form 8952, Application for Voluntary Classification Settlement Program. The IRS indicates that the application should be filed at least 60 days prior to the date the employer wants to begin treating its workers as employees in order to allow sufficient time for processing to be complete by the requested date for voluntary reclassification.

Employers Should Evaluate Consequences of Participation

While the VCSP may be appealing for federal tax purposes, it does not address exposure to other federal, state or local issues, nor does it address potential private actions by affected workers for applicable benefits.  Notably, employers would still be open to review by other federal agencies, such as the Department of Labor (in minimum wage and overtime investigations), as well as state and local agencies for worker classification issues in prior years.

Conclusion

These announcements reemphasize the continued attention that the IRS is devoting to worker classification and provide an expanded opportunity for employers to address any outstanding worker classification issues.  As stated in Hall Render’s prior summary, the VCSP provides several valuable benefits, such as reduced taxes and elimination of potential penalties and interest for prior years, but employers should be aware that the VCSP does not resolve all worker classification issues and concerns.  Thus, employers considering the VCSP should carefully weigh all aspects of a decision to voluntarily reclassify their workers under the expanded program.

Should you need assistance with your organization’s evaluation of worker classification issues, including possible participation in the VCSP, please contact Calvin R. Chambers at 317- 977-1459 or cchambers@hallrender.com or your regular Hall Render attorney.

Last summer, the NLRB created another stir among private employers when it found that an employer’s form used during confidential investigations of workplace issues was unlawfully broad and interfered with employee rights.  We wrote about this development in our August 7, 2012 HR Insights article Confidential Investigations – Challenged by the NLRB.  After that ruling, employers were left to guess as to what they could say about the confidentiality of workplace investigations in their policies and other documents.  Now there is some guidance, thanks to the NLRB’s Division of Advice, which released a Memorandum on April 16, 2013, suggesting policy language that would withstand NLRB scrutiny. 

Advice and Guidance on Lawful Language

The NLRB’s Advice Memorandum arose out of a case in January 2013 where the employer was found to have a “Code of Conduct” that was unlawfully broad because it required employees to acknowledge that they might be subject to discharge or discipline if they violated the employer’s strict blanket confidentiality directive.  According to the NLRB, blanket rules or policies requiring confidentiality of investigations are unlawful – unless the employer can demonstrate the need for confidentiality on a case-by-case basis.  The employer’s Code of Conduct was too broad because it didn’t allow for case-by-case analysis.  The NLRB cited the employer’s Code of Conduct and suggested language that would be lawful.  Although this Advice Memorandum does not have the force of law, it does indicate what the NLRB would do if confronted with a similar policy or Code of Conduct.

Approved Policy Language

Here is the employer’s Code of Conduct that employees were asked to sign.  The NLRB concluded that the first two sentences were lawful statements setting forth the employer’s legitimate interest in protecting confidentiality. The unlawfully broad language is shown below with a strike through.  The NLRB’s new “approved” replacement language follows it.

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.  [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The Bottom Line for Private Employers 

Frankly, it is difficult to see much difference between the unlawful and the “approved” language.  Nevertheless, the NLRB will continue to make these very fine distinctions in its effort to protect employee rights.  With this advice and direction from the NLRB, private employers would be wise to review their own polices and Codes of Conduct to ensure that they comply with this “approved” language and avoid unfair labor practice charges later.

If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.

Employers have always been advised to treat their employees the same, and if they don’t, it can be evidence of unlawful discrimination.  This issue came up in a recent case involving an employer that required a black employee who was involved in an altercation to go for a drug test but didn’t require the white employee, who was also involved, to be tested.  The black employee claimed that this was unlawful discrimination and filed a lawsuit.  The court said that there was no unlawful discrimination and dismissed the case.

Who Was Behaving Badly?

Here’s how the court came to its conclusion.

First, the court considered the fact that there was indeed an altercation involving the two employees and that the employer had an established policy that provided for a drug test in certain circumstances.  Those circumstances were met because the black employee was reported to have been yelling along with rambling and fast speech.  These behaviors were among the behaviors that would permit a supervisor to require a drug test.  The white employee, although part of the altercation, had not – at least in the supervisor’s opinion – demonstrated the same behaviors.  As it turned out, the black employee tested positive for cocaine and was fired.  Interestingly, the black employee didn’t challenge his termination but only the decision to send him and not his coworker for the drug test.

No Adverse Action

Second, the court held that sending one employee and not the other for a drug test was not “adverse action” that could give rise to a claim of discrimination.  In order to support such a claim, there had to be a showing of severe and pervasive conduct that was designed to harass and humiliate an employee because of membership in a protected class.  In this case, there was no severe or pervasive conduct by the employer – it only happened once – and there was no evidence of any design to harass or humiliate.  Indeed, the employer had a legitimate basis to require the drug test based on the reported behaviors.

Perception Is Reality

Third, the court made it clear that the supervisor’s perception of the reported behaviors was what was really important.  The supervisor could have been totally wrong, and the white employee might have in fact been just as loud and erratic – or even more so – than the black employee.  But, according to the court, what counts is the supervisor’s perception of the relative behaviors and conduct of the two employees.  It’s not enough, in the court’s view, for the black employee to argue that the white employee should also have been tested.  There was no evidence presented to suggest that the supervisor actually knew or believed that the white employee was also behaving erratically.  The court was not willing to simply assume that race was on the mind of the supervisor in requiring one employee but not the other to be drug tested.

Lesson for Employers

This is a good example that management’s honest belief in making employment decisions – even if wrong – will often overcome claims of unlawful discrimination.  It should always be remembered that in almost all cases it is the plaintiff’s burden to show that an unlawful discriminatory motive was at least a factor in the decision to take adverse action.  In this case, there was no evidence of an unlawful motive based on race, and there was no evidence to even support a claim that sending this employee for a drug test was adverse action.  Nevertheless, in order to avoid later arguments and litigation, employers still should consider treating employees equally in similar circumstances.

Reference:  Berry v. Arcelormittal USA, LLC, (N.D. Ind., No. 2:10 cv 124 April 10, 2013).

If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.

The U. S. Census Bureau predicts that by 2050 nearly 20 million workers or about 20% of the national workforce will be 65 or older.  That represents an increase of 75% while the number of workers ages 25 to 54 is predicted to grow by only 2%. The health care workforce is already older than most.  By 2020, nearly half of all registered nurses will reach traditional retirement age of 65. Currently, the average age of a nurse in the United States is 50. Nearly one-quarter of physicians in a 2007 nationwide survey were 60 years or older.  In light of these predictions, the U.S. Department of Labor commissioned an Issue Brief that is intended to address the challenges that lie ahead in the health care industry’s aging workforce. 

Issue Brief on the Aging Health Care Workforce

The March 2013 Issue Brief “The Aging Workforce: Challenges for the Health Care Industry Workforce” was published by the National Technical Assistance and Research Center and was co-authored by Laurie Harrington and Maria Heidkamp.  Their Issue Brief contains compelling statistical information that should serve as a wake-up call for health care leaders.  For example, one statistical table suggests that by 2030 the total number of health care providers will need to increase by over 3.5 million workers just to maintain the present provider-to-patient ratios that exist today.  Filling that gap is crucial.

Some Current Strategies

Many health care systems are already taking steps to confront the problems that will occur as the health care workforce matures.  Some of these strategies have included offering:

• Weekend-only work, work-at-home opportunities and seasonal work that allows employees to take extended leave;
• Flexible schedules as well as phased retirement and a seasonal months-off program for up to six months during a slow season for full and part-time employees;
• Reduced schedules for up to six months without losing benefits;
• Employees who are age 65 and older to work up to 24 hours per week and receive the same benefits they would get if fully retired;
• Employees with at least 10 years of service who are age 59½ or older to begin to draw on their pensions while still working part time;
• Older workers who retire the opportunity to return to the organization within five years without losing their benefits; and
• “Snowbird” nurses who live in a locale only for part of the year the opportunity to work for three, six or nine months at a time.

For employers generally, the authors suggest first conducting a demographic workforce assessment that identifies current and projected skill gaps.  Additionally, they suggest peer mentoring and job shadowing so that younger workers might assist older workers on integrating new technologies while older workers could help train the younger workers.  Many other strategies and practices that are worth considering are outlined in the Issue Brief.

The Bottom Line

The fact that the U.S. workforce is aging rapidly is inescapable. The fact that the health care workforce is older than most should not be overlooked or ignored.  Health care employers should consider getting ahead of this aging curve before it’s too late.

If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.

What You Should Do

The first thing you should do is notify your local Human Resources personnel to be on the lookout for a CSAL from OFCCP.  Although a compliance review doesn’t technically begin until OFCCP sends the official scheduling letter, receipt of a CSAL pretty much guarantees that the scheduling letter will follow.

Once it has been determined that your company received a CSAL, you should begin preparing for the compliance review immediately.  It is important to understand that when the official scheduling letter arrives, you will only have thirty days to respond to OFCCP’s standard audit requests.  Responding to OFCCP’s standard audit requests means, among other things, providing copies of your affirmative action plans as well as raw data concerning your applicants, hires, promotions, terminations and employee compensation.  Thirty days is typically not enough time to ensure your plans are in proper order or to confirm the accuracy of the raw data you will be required to disclose.  Both are crucial steps if you’re hoping to contain risk and have a smooth audit with as few follow-up requests from OFCCP as possible.

Should You Contest OFCCP’s Jurisdiction?

Receiving the CSAL in advance also gives you more time to consider whether your company has been appropriately selected for audit.  OFCCP is required to use a neutral selection process and its jurisdiction extends only to federal contractors and covered subcontractors.  Whether a company is a federal contractor or covered subcontractor is not always easy to determine, especially in the health care industry where these definitions remain the subject of unresolved litigation.  Whether in the health care industry or not, if you don’t believe your company is a federal contractor or covered subcontractor, you will want to have your reasons and supporting arguments prepared in advance.  You will also want to have carefully considered the pros and cons of contesting OFCCP’s jurisdiction as OFCCP typically won’t retreat easily.  These are complicated questions and analyses that are best addressed with legal counsel experienced in OFCCP jurisdiction matters.

If you have questions regarding this topic, please contact Jon Bumgarner at 317-977-1474 or jbumgarner@hallrender.com or your regular Hall Render attorney.

Where Is the Line?

Determining when and how often calling an employee at home while on FMLA leave becomes interference will be tricky for an employer.  The facts in this case show just how tricky that can be. The employee in this case was a working manager at an Ohio hospital as a respiratory therapist team leader.  She spent time on the floor caring for patients in addition to her managerial responsibilities overseeing respiratory therapists.  The employee injured her right knee when she fell in the parking lot at the hospital. Her injury required surgery.  She sought and was granted FMLA leave. Another rehabilitation manager covered the employee’s management duties during her FMLA leave. The respiratory therapists who were normally supervised by the employee on FMLA leave were told to contact the replacement manager with questions while the employee was on leave. However, during her FMLA leave, respiratory therapists and the replacement manager contacted the employee at home about various work-related matters.  These “work-related” contacts involved:

• Responding to phone calls from respiratory therapists concerning scheduling;
• Responding to phone calls from the replacement manager concerning responsibilities that needed to be covered during her absence;
• Providing her computer password;
• Identifying respiratory therapists to assume responsibilities for certain aspects of her department during her absence in a call that lasted about one hour;
• Completing certain educational training and competencies that she was told needed to be done before her return;
• Talking to the replacement manager for an hour about inputting Blood Gas Proficiency testing numbers;
• Inputting the testing numbers into the computer herself so that the hospital could remain compliant with the American Proficiency Institution;
• Preparing a list of her duties; and
• Working with the replacement manager over the phone for about an hour to submit evaluations of respiratory therapists under her supervision.

The Jury Will Determine the Line

In denying the hospital’s motion for summary judgment, the court observed 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.  When such contact is limited to the scope of passing on institutional knowledge to new staff or providing closure on completed assignments, employers do not violate the FMLA by making such calls. Accordingly, in this case the court believed that communications between the employee, her replacement and other employees for the purpose of facilitating the transition to employee’s responsibilities, such as providing a computer password and identifying employees to fill in for the employee, did not interfere with her FMLA leave as a matter of law – if that was as far as it went.  However, the hospital’s requests to complete training prior to her return from leave, complete reviews of respiratory therapists and to enter blood gas data may have gone too far.   When all  of these contacts and requests are viewed together, they may be seen as exceeding the limited scope of passing along institutional knowledge and providing closure on completed assignments.  These additional contacts and requirements presented disputed issues of material fact where a jury could find that the hospital interfered with the employee’s rights while on FMLA leave.  Who can tell what a jury might decide?

Lessons for Employers

This case suggests that it is permissible for an employer to make limited work-related contacts with an employee who is at home while on FMLA leave. But obviously the fewer the contacts the better and the less likely the contacts will be seen as unlawful interference with FMLA rights.  It’s best to limit the contacts to:

• Passing on institutional knowledge;
• Providing closure on completed assignments;
• Providing passwords; and
• Identifying other employees to facilitate the transition.

Reference:  Vess v. Scott Medical Corp., (N.D. Ohio No. 3:11 CV 2549, March 15, 2013).

If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.