August 21, 2012

 

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Attention: Have you taken the HR4U mini-Human Resources audit, yet?

 

Company Ordered to Pay $148,000 for Pregnancy Discrimination by Owner

A federal judge has ordered a Milwaukee medical staffing company to pay $148,000 to settle a pregnancy discrimination case filed by the EEOC. The EEOC’s suit charged that owner of HCS Medical Staffing, Inc. discriminated against the company’s bookkeeper, in violation of federal law, when he made offensive comments about her pregnancy and fired her because she needed to take maternity leave following the birth of her son

 

After HCS failed to respond to a court order to retain an attorney, the court entered a default judgment against the company. The court ordered the employer to pay the employee back pay plus pre-judgment interest in the sum of $48,340; compensatory damages in the sum of $50,000; and punitive damages amounting to $50,000; totaling $148,340 in damages.

 

The judge found that the “circumstances leading up to HCS's discriminatory termination of the employee were inherently humiliating and caused her substantial emotional distress. The circumstances surrounding the employee’s notification of termination were equally degrading.”

The judge found that HCS's owner referred to the employee’s pregnancy as a joke; insisted that maternity leave should last no more than a couple of days; suggested that her pre-natal appointments were a ruse for additional time off or for money; and gave her an offensive graphic diagram of a machine which would allegedly allow her to return from her maternity leave sooner. With no prior warning or discipline, HCS terminated the employee’s employment and health insurance while she was still in the hospital recovering from a Caesarean section. She learned of her termination days later by certified mail.

 

In addition to the monetary relief, the judge ordered that HCS Medical Staffing be permanently enjoined from engaging in any further pregnancy discrimination.

 

What is work when you are on a FMLA leave?

Can an employee claim that a portion of his FMLA leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out?

 

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a "professional courtesy" that does not interfere with FMLA leave. Therefore, a few work-related communications likely will not constitute interference with an employee's FMLA rights. When an employee is passing on "institutional knowledge" or providing closure on open assignments, employers do not violate the FMLA.

 

What about the employee who is answering e-mails and calls without the boss' knowledge? Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too ill to do so.

 

However; there are no hard and fast rules about contact between employee and employer during FMLA leave. As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave. That said, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to wrap up a job the absent employee was working on.

 

But if your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA liability is to tell the employee to stop.

 

Gerresheimer Pays $90,000 to Settle EEOC Retaliation Lawsuit

Gerresheimer, a plastics manufacturer for the pharmaceutical and health care industry based in Peachtree City, Ga., will pay $90,000 to settle a retaliation lawsuit brought by the EEOC.

The EEOC charged that Gerresheimer terminated an employee from her position as a quality assurance manager in January 2009 in retaliation for filing a discrimination charge with the EEOC. The employee, who was hired in February 2008, complained internally about gender-based wage discrimination in October 2008. After the employer concluded there was no discrimination in wages, the employee took her grievance to the EEOC. Within six weeks of receiving notice of the discrimination charge, the employer terminated her for purportedly misusing leave time.

 

The consent decree settling the suit, in addition to the monetary relief, includes provisions for equal employment opportunity training, reporting, and posting of anti-discrimination notices.