"This & That" Tuesday: Age and Sex Discrimination, FMLA Notices

May 5, 2015

 

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

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

June 2, 2015

Understanding and Building a Disciplinary Process

Compliance Key

Webinar

Information can be found on my website.

 

June 4, 2015

East SGV CPA Group

2015 Labor Law Update

Information can be found on my website.

 

June 9, 2015

South Pasadena Rotary Club

The New Paid Sick Leave Act

Information can be found on my website.

 

Bank of Albuquerque Pays $230K to Settle Age and Sex Discrimination Lawsuit

BOK Financial Corporation, doing business as the Bank of Albuquerque, will pay $230,000 and furnish other relief to settle an age and sex discrimination lawsuit filed by the EEOC).

 

According to the EEOC's suit, the bank fired two female managers who were long-time employees, because of their gender and because they were over 40 years of age.  The EEOC said the bank's purported reasons for firing the women were based on criteria that were not applied to younger male managers and employees.  

 

Besides the monetary relief, BOK also agreed to refrain from any future discrimination; post an anti-discrimination notice; provide training; and to report to the EEOC on its compliance with these terms.

 

Improper and Untimely FMLA Notices Didn't Harm Employee

When an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and Rights & Responsibilities Notice (which usually is accompanied by a blank medical certification form).  Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice.  If you don’t send these notices to your employees, you risk an FMLA violation.  

 

In Scott Bellone v. Southwick-Tolland Regional School District, he didn’t receive a proper Notice of Eligibility.  When Scott returned the medical certification completed by his health care provider, the employer did not send him a designation notice right away.  In fact, it waited until his 12 weeks of FMLA leave were exhausted, and then waited another four weeks.  At that point, it sent him the Designation notice, which retroactively designated the previously exhausted 12-week period as FMLA leave.

 

Scott was terminated a short time later for reasons not directly related to his leave of absence. When he filed suit against his former employer, he claimed that his employer violated the FMLA because it did not provide him proper or timely FMLA notices.

 

The court said that on one hand, the employer technically violated the FMLA when it failed to provide Scott proper and timely FMLA notices.  On the other hand, however, Scott took about 16 weeks of leave, which outstripped the 12 weeks provided for under the FMLA.  Thus, the deciding factor for the court was that Scott failed to provide any evidence that he actually could return before his leave ended or that he would have structured his leave differently had he been provided appropriate notice.  

 

The Court said the School District came forward with affirmative evidence demonstrating that Scott was unable to return to work before the end of the academic year. At that point, it was up to Scott to establish a genuine issue for trial by presenting more than just a bare allegation that he could have done things differently if he had known that his leave would count toward his FMLA entitlement.

 

For the court, “nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.”   The court adopted the approach taken by the U.S. Supreme which held that late or inadequate notices are not actionable unless they harm the employee.

 

Factoids

Common Reasons Employers Passed on a Candidate:

• 46 percent: job candidate posted provocative or inappropriate photographs or information
• 41 percent: job candidate posted information about them drinking or using drug
• 36 percent: job candidates bad-mouthed their previous company or fellow employee
• 32 percent: job candidate had poor communication skilll
• 28 percent: job candidate had discriminatory comments related to race, gender, religion etc.
• 25 percent: job candidate lied about qualifications
• 24 percent: job candidate shared confidential information from previous employee
• 22 percent: job candidate was linked to criminal behavior
• 21 percent: job candidate’s screen name was unprofessional
• 13 percent: job candidate lied about an absence
  

 

Quote of the Blog

“Discipline is the bridge between goals and accomplishment.”

~Jim Rohn~