Tuesday, August 31, 2010

8th Circuit Holds Employer May Waive Rights to Contest Employee's FMLA Leave

In a case that provides a powerful example of supervisors needing to pick their words very carefully when discussing time off with employees, the Court of Appeals for the Eighth Circuit recently held that "the totality of circumstances" could leave to a reasonable inference that an employee is putting an employer on notice and requesting additional FMLA leave.

So, what exactly did the supervisor, Jeff Karnes, say that led the plaintiff, Susan Murphy, in this case to believe that she had acquired additional FMLA leave?:

On September 11, Karnes contacted Murphy. He told her that her FMLA leave ended on September 7 and asked her how much more time she needed before returning to work. She said that she needed thirty days to "take care of things." Karnes told her "okay, cool, not a problem, I'll let HR know."

The problem is that when Karnes did let HR know, they disapproved and then Murhphy's employment was terminated which led to her FMLA interference lawsuit.

The case is Murphy v. FedEx, Inc., Nos. 09-3473/3518.

Saturday, August 28, 2010

Recent 7th Circuit Decisions Shows Importance of Proving What the Employer Knows

A man, Lord Osunfarian Xodus, sporting hair in dreadlock form and a Rastafarian and Hebrew Israelite adherent, applied and was rejected for a job with Wackenhut, a private provider of security services, because of Wackenhut's (and apparently many other comparable entities') grooming policy. In response, Xodus filed a complaint with the EEOC and then a federal complaint alleging Wackenhut violated Title VII for discriminating against his religion because Wackenhut's employment requirement with respect to grooming conflicted with his religion. The ultimate issue and where Xodus failed was in showing that he brought his religious practice to Wackenhut's attention.

The crux of this decision came down on whether or not Xodus expressly brought his religious belief to Wackenhut's attention through the interviewer and what was allegedly discussed during Xodus' interview with Wackenhut.

It is apparent that Xodus' religion never formally came up during his interview but Xodus argued that Wackenhut knew religion played a role because the word "belief" was used, Xodus had dreadlocks and his first name is Lord. The 7th Circuit was unconvinced and upheld summary judgment.
But unlike race or sex, a person’s religion is not always readily apparent. Reed v. Great Lakes Cos., Inc., 330 F.3d 931, 936 (7th Cir. 2003). “Even if he wears a religious symbol, such as a cross or a yarmulka, this may not pinpoint his particular beliefs and observances; and anyway employers are not charged with detailed knowledge of the beliefs and observances associated with particular sects.” Id. An employee has a duty to give fair notice of religious practices that might interfere with his employment. Id.; Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978). On the other hand, an employer cannot “shield itself from liability by . . . intentionally remaining in the dark.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804 (7th Cir. 2005).
Xodus simply failed to introduce enough convincing evidence that Wackenhut was aware of his religion which provides an important lesson to most any plaintiff in employment cases: you must let the employer know of your protected class!

The case is Xodus v. Wackenhut Corp., No. 09-3082.

Friday, August 27, 2010

Understanding Unemployment Compensation in Wisconsin

Unemployment benefits is a very misunderstood concept--for lack of a better term. As an attorney that focuses on labor and employment law, anytime I get phone calls from people with potential labor or employment law claims, I almost always delve into the topic of unemployment benefits because often times I am dealing with someone who was recently separated from their employment.

I first ask whether they are receiving or have applied for unemployment compensation, and, depending on the answer, sometimes I have to probe a little more to determine whether or not they are eligible.

Have Enough Wages Been Earned?
In Wisconsin, the calendar year is divided into quarters and the first quarter begins in January. To determine whether you have enough wages to qualify and how much you can be paid, you take the first four of the last five completed calendar quarters before the week you file an initial claim application for a new benefit year. If you do not have enough wages to qualify for a claim using the base period described above, an "alternate base period" will be used. The alternate base period will be the four most recently completed calendar quarters before the week you filed your initial claim application for a new benefit year.

Covered and Excluded Employment
Covered employment is work you perform for an employer who is subject to the unemployment insurance law. However, some work is "excluded" (not covered) even when performed for a covered employer. Only wages paid from covered employment can be used to qualify for unemployment benefits and to calculate how much you can be paid. Examples of "excluded" employment are if you work for an educational institution while you are a student there or work as a real estate or insurance salesperson if paid only by commission.

Qualifying Wages
To qualify for unemployment benefits you must have been paid wages from covered employment in at least two quarters of your base period. You need:

■Enough wages in your high quarter to qualify for the minimum Weekly Benefit Rate ("WBR");
■Wages in your 3 lowest quarters that equal at least 4 times your WBR when added together;
■Total base period wages equal to at least 35 times your WBR; and
■If you were paid benefits in a prior benefit year which has ended, you must have worked since the beginning of that benefit year and earned at least 8 times the WBR of that claim.
Your base period wages will not automatically include monies you may have authorized with-held as part of a cafeteria or similar plan. You may request that these monies be added to your base period wages by calling a claims specialist.

There is a lot more that goes into computing benefits that are beyond the scope of this article and most telephone conversations with potential clients. After it appears the person has earned enough wages, I then ask them how the separation occurred--i.e., were they terminated or did they quit. The burden lies with the party that caused the separation from employment.

Common Disqualifications from Benefits
Most people I encounter almost always have severe misconceptions of whether they are eligible for unemployment benefits. People who are terminated think that just because they are terminated that they are automatically ineligible and people who quit think that just because they quit that are automatically ineligible for benefits.

If You Are Terminated Employer Must Show "Misconduct"
Whenever I encounter a person who was terminated from their employment, I explain to them that, because it was the employer who caused the separation from employment, it is their burden to show that they engaged in "misconduct connected to their employment." Misconduct is a legal term that isn't defined by statute but was defined by the Court in Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941):

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

So, believe it or not, a garbage truck driver who gets into three accidents at no fault of his own, should be eligible for unemployment benefits because the accidents were not "misconduct"--they were not willful or in wanton disregard, but merely accidents.

If You Quit Your Employment, You Must Show Good Cause
It is usually a lot more difficult for someone to be eligible for unemployment benefits when they quit because then the burden is on them to show that they quit for "good cause." Good cause is another term not defined by statute and held to be a broad and subjective concept and involves an assessment of the reasonableness of the employer's conduct and of the employee's response.

There are a number of other reasons one may be disqualified for unemployment benefits, but these are often the main mistaken concepts I encounter as a practitioner. If you have questions regarding your eligibility feel free to contact me!

Mediation and Employment Law Claims

Attorney Steven I. Adler of Cole Schotz Meisel Forman & Leonard has a very insightful article labeled, "Mediating Employment Law Claims." Very worthwhile read!

Wednesday, August 25, 2010

Department of Workforce has a Blog!

It's titled, "Putting Wisconsin Back to Work." Have a look!

NLRB Weekly Summary of Cases

For the week of August 16-20.

Tuesday, August 24, 2010

7th Circuit Decisions Shows That One Act Can Create a Hostile Work Environment

A recent decision out of the Court of Appeals for the Seventh Circuit reveals how a single act can amount to a hostile environment, if severe enough. The plaintiff, Cynthia Berry, filed a complaint with human resources after, while on a lunch break, she was allegedly grabbed by the breasts by a male coworker, Philip Carmichael, lifted in the air, had her buttocks rubbed against the front of Carmichael's body—from his chest to his penis—three times before bringing Berry to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence.

The 7th Circuit, in reversing the lower court's grant of summary judgment on the hostile work environment claim, held:
With respect to Carmichael’s actions, however, Berry
has provided enough evidence to allow her hostile work
environment claim to go forward. As the district court
noted, a single act can create a hostile environment if
it is severe enough, Lapka v. Chertoff, 517 F.3d 974, 983
(7th Cir. 2008); Hostetler v. Quality Dining, Inc., 218 F.3d
798, 808 (7th Cir. 2000), and instances of uninvited
physical contact with intimate parts of the body are
among the most severe types of sexual harassment, see
Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir.
2006); Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001);
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995). Carmichael’s actions, as alleged by Berry, qualify
undeniably as unwelcome sexual conduct that established
a hostile environment.
In ruling that the employer was liable for Carmichael's actions, they noted how Berry presented facts to show that the supervisor she complained to, Michael Gorman, made insensitive statements and potentially sabotaged the investigation regarding the incident. Thus, this case is also another lesson for employers on training managers and supervisors on how to handle these types of complaints and what not to say to a person complaining of sexually harassing conduct.

The case is Berry v. Chicago Transit Authority, No. 07-2288 (7th Cir. Aug. 23, 2010).

Monday, August 23, 2010

Case Law Update

--Tootill v Securitas Security Servs USA, Inc., Dconn, August 16, 2010: Defendant's motion for summary judgment granted because the plaintiff could not demonstrate that a genuine issue of material fact existed over whether the employer’s reason for terminating him was pretextual. The employee admitted that he manipulated the time sheets of various officers, and that no one with the employer ever made a negative statement about his age; there was no evidence presented as to the actual age of the employee who permanently replaced him.

--Davis v National RR Passenger Corp., DDel, August 16, 2010: Plaintiff prevails in showing a hostile work environment based upon his race, which included incidents of vandalism and theft at his workspace. However, the plaintiff failed in showing that the employer was racially motivated in its decision to discipline him for sleeping on the job failed because he was unable to show that he was treated less favorably than a similarly situated person outside his class. His reliance on a comparator who was a non-supervisory employee failed because that individual was held to a lesser standard than the employee.
(It's always a challenge finding a good comparator.)

--Walton v Best Buy Co., EDMich, August 17, 2010: Female plaintiff, with children, survived summary judgment on her Title VII and Michigan law “sex-plus” discrimination claims against her employer because she presented direct evidence of discriminatory animus by the manager who placed her on her second performance improvement plan, which she was ultimately terminated for failing to meet. The court found she established a prima facie case of sex-plus discrimination based on direct evidence of discriminatory statements made by her manager. It was significant that the manager who allegedly made the statements was the same individual who decided to place the employee on her second performance improvement plan and that the statements were made within a month or two of that decision. The employee presented sufficient evidence to cast doubt on the employer’s proffered reason for discharge – poor job performance – was pretext for discrimination, concluded the court. The record contained sufficient evidence from which a jury could conclude that the employee’s failure to perform well was due to the fact that the company was not giving her training opportunities that it provided to others and that the reason for failing to train her was that she was a mother of young children.

--Kroll v White Lake Ambulance Auth., WDMich, August 19, 2010: Plaintiff's claim was dismissed with prejudice because she stipulated to summary judgment on her discrimination claim, abandoned her retaliation claim, and failed to adduce evidence of a medical examination or inquiry in violation of the ADA. The employee, who worked as an EMT, alleged that her employer violated the ADA and Title VII when it required her to undergo psychological counseling as a condition of retaining her employment. Specifically, she alleged that her employer required her to attend counseling without proof that her mental health condition posed a direct threat or impaired her ability to perform essential job functions. She also alleged that her employer retaliated against her when she refused to attend counseling. Finally, she claimed that she suffered discrimination in violation of Title VII when her employer compelled her to undergo counseling for having an affair with a married male coworker, while it did not require male employees to undergo counseling for the same behavior.

Tuesday, August 17, 2010

Case Updates

Cross v Prairie Meadows Racetrack & Casino, Inc., 8thCir, August 12, 2010: a former female casino valet's claims of hostile work environment claims could not withstand summary judgment because the incidents she reported did not rise to the level of a hostile work environment. The Plaintiff also could not not establish that the casino knew or should have known about other alleged incidents of harassment that she failed to report. This case has some outrageous facts and demonstrates the high burden plaintiffs' face in hostile work environment claims. The plaintiff could only cite four incidents over two years and this was not enough to survive summary judgment.

Mitchell v University Med Ctr, Inc., WDKy, August 9, 2010: A devout Christian nurse, who resigned after being ordered not to discuss with coworkers her religious views about the coming of the end of the world, was unable to pursue her Kentucky law claims that the hospital failed to reasonably accommodate her religion or that it unlawfully discriminated against her based on her religious beliefs. The nurse’s First Amendment claim that the hospital violated her right to free speech was also dismissed because the hospital was not a government actor and its actions did not amount to state action.

Bonfiglio v Michigan Underground Specialists, EDMich, August 12, 2010: Because they were admittedly replaced by younger workers, two employees made out a prima facie case of age-based discrimination to rebut their employer’s claim that they were terminated in a reduction in force, thereby defeating the employer’s motion for summary judgment. One was terminated when he was 52 years old, and the employer hired an employee who was 36 years old to replace him. The other was 72 years old at the time of his termination, and the employer hired a 23-year-old employee to replace him. After the employees’ terminations, the employer terminated several other employees under a purported general downsizing. Although the employer claimed that both employees were terminated due to the reduction in force, the court cited evidence that this reason had no basis in fact because the employees were admittedly replaced in their positions. In addition, when considering the whole of the employer’s reduction efforts, the court noted that the oldest employees were terminated.

Dreshman v Henry Clay Villa, WDPa, August 11, 2010: A male nurse who had previously been an exotic dancer, and who was discharged from his employment at a nursing home, was unable to proceed with his claims that he was subjected to a sexually hostile work environment because the conduct alleged was not sufficiently severe and pervasive. Once again, as in the first case cited above, not enough incidents, too large of gaps in between incidents and not enough complaining to management.

NLRB Weekly Summary of Cases

For the week of August 9-13.

Law.com CLE on Hiring and Firing Decisions Based on Social Media Postings

A webinar that will focus on:

-What are the rules regarding employers' use of personal data posted online?
-How reliable are the data? What if the information is inaccurate? Is any of this information privileged?
-Can employers search employees' usage of social networking sites?
-What happens when an employee's first amendment rights conflict with an employer's interests?
-Must applicants be told that the employer will Google all applicants?

Monday, August 16, 2010

Wisconsin Court of Appeals Upholds LIRC's Decision that Employee Engaged in Misconduct

In somewhat of a rare appearance of an unemployment compensation case before the Wisconsin Court of Appeals, LIRC's upholding of an ALJ's decision finding that a complainant engaged in "misconduct" connected to their employment was upheld. The case is curious because the complainant requested an abrupt day off of work because she needed to take her daughter to the hospital because she was sick. No mention of the complainant requesting FMLA leave was mentioned (perhaps she simply wasn't eligible?) and the Court of Appeals ultimately upheld the finding of "misconduct" because the complainant, who was employed by a staffing agency, Site Staffing, admittedly contacted the client in direct violation of the employer's rules and interests.

The case is Hartfield v. L.I.R.C., Docket: 2009AP002160 08-10-10

Union Leader Says MPS Will Recall 100 Teachers

The union leader for the Milwaukee Teachers' Education Association, Mike Langyel, stated today that Milwaukee Public Schools is in the process of calling back about 100 more elementary-level teachers that were laid off at the end of last school year. This past July 89 teachers were called back and with this extra 100, this brings the total to nearly 200 of the 482 that received layoff notices. From the Journal Sentinel article on the breaking news:

Langyel said he believed the most recent group of tull-time teacher recalls was not prompted by the recently passed federal legislation that will send about $365 million to Wisconsin to prevent teacher layoffs and support Medicaid programs.

Rather, he said, the callbacks appeared necessary to "correct the inappropriate levels of layoffs that occurred under the previous administration."

"There are indications that the new administration is working hard to get schools to open on the right foot this year," Langyel added.

MPS has not confirmed the latest numbers. When contacted by a reporter Monday about the recalls, a district spokeswoman said she did not have any information about the matter.

Saturday, August 14, 2010

Illinois Becomes Latest State to Protect Credit History in Hiring

Illinois has become the fourth state, joining Hawaii, Oregon, and Washington, to enact legislation prohibiting employers from discriminating based on a job seeker or employee’s credit history. Given the recent economic woes many Americans have faced over the last several years during this "Great Recession," many states and even the EEOC have deemed it necessary to step in and prevent a new trend in employment discrimination. From the press release on the new IL legislation, the Employee Credit Privacy Act:
Under the act, Illinois’ employers may not use a person’s credit history to determine employment, recruiting, discharge or compensation.

The new law forbids employers from inquiring about an applicant or employee’s credit history or obtaining a copy of their credit report. The law does not affect an employer’s ability to conduct a thorough background investigation that does not contain a credit history or report.

Employers who violate the new law can be subject to civil liability for damages or injunctive relief.

Under the new law, employers may access credit checks under limited circumstances, including positions that involve: bonding or security per state or federal law; unsupervised access to more than $2,500; signatory power over businesses assets of more than $100; management and control of the business; access to personal, financial or confidential information, trade secrets, or state or national security information.

Friday, August 13, 2010

EEOC Tightening Up on Job Screenings and Disparate Impact Discrimination

As it becomes easier and easier for employers to screen applicants, so does it become easier and easier for disparate impact to occur to groups that commonly have criminal records or credit problems. The Equal Employment Opportunity Commission is attempting to prevent a wave of unemployable groups of people based upon new-age screening procedures through lawsuits and press releases that seek to curb potential discriminatory pre-screening practices. From the AP article on the issue:

Justice Department statistics show that 38 percent of the U.S. prison population is black, compared with about 12 percent of the general population. In 2008, African-Americans were about six times more likely to be incarcerated than whites. The incarceration rate for Latinos was 2.3 times higher than whites.

If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred. For example, it may make sense to disqualify a bank employee with a past conviction for embezzlement, but not necessarily for a DUI.

Most companies tend to be more nuanced when they look at credit reports, weeding out those applicants with bad credit only if they seek senior positions or jobs dealing with money. But if the screening process weeds out more black and Hispanic applicants than whites, an employer needs to show how the credit information is related to the job.

About 73 percent of major employers report that they always check on applicants' criminal records, while 19 percent do so for select job candidates, according to a 2010 survey by the Society for Human Resource Management.

The same survey found that almost half of major companies conduct credit checks for some job candidates, such as those who would be in a position of financial trust. Another 13 percent perform credit checks for all potential workers.
The lesson to be learned? Employers need to really evaluate and critique their pre-employment screening processes to be sure they are not having an unintended effect of disparate impact because certains protected classes of people are being refused employment for less-than-reasonable reasons.

Wednesday, August 11, 2010

Wrongful Termination and At-Will Employment: Attempting Clarification Once and For All

One of the most common calls I get to my office from potential clients are inquiries and claims that they have been "wrongfully terminated." Most of the time when people use that term to describe their separation from employment they mean that their termination was unfair. It is at that point that I attempt to explain what "wrongful termination" means in the employment law context.

I start out by explaining that in Wisconsin employees are, by default, at-will employees and can be terminated for good cause, or bad cause, or no cause at all, and that is because employees are equally free to quit, strike, or otherwise cease work at-will. However, there are exceptions to the at-will employment doctrine, one of which being wrongful termination.

Wrongful termination, in a nutshell, means that one has a cause of action if they are terminated for fulfilling, or refusing to violate, a fundamental, well-defined public policy or an affirmative legal obligation established by existing law. Bammert v. Don's Super Valu, 2002 WI 85 (Wis. 2002). So, for example, it would be a wrongful termination if you work at an auto dealer and you are terminated for refusing to falsify data or documents related to a car for sale which, if falsified, would lead to a violation of State statute or code.

I often have to emphasize that this exception to the at-will doctrine is a narrow one, meaning that courts are not apt to find that an employee has been "wrongfully terminated." It is often an uphill battle to identify a clear and well-defined public policy that would trigger this exception.

Despite this very narrow exception to at-will employment in Wisconsin, I still welcome telephone calls and emails inquiring whether your case perhaps is the rare case that can be properly labeled a wrongful termination!

Tuesday, August 10, 2010

NLRB Weekly Summary of Cases

For the week of August 2-6.

Well, That's Certainly One Way to Quit Your Job

Seems to be an Internet sensation right now.

Monday, August 9, 2010

Case Updates

Here are some summaries of recent cases of interest:

--EEOC v The Geo Group (3rd Circuit): A private company, GEO Group, Inc., that was contracted to run a prison facility did not violate Title VII because of its ban on head coverings that included a prohibition on Islamic head coverings because the ban was warranted by the prison’s safety concerns.

--Saenz v Harlingen Medical Ctr, LP, (5th Circuit): Held that a federal district court in Texas erred in applying the heightened requirements of a Fifth Circuit precedent to find that an employee must comply with a hospital’s internally created FMLA notice procedures.

--Nyrop v Indep School Dist. No. 11, (8th Circuit): Affirmed the dismissal of ADA, Rehabilitation Act and Minnesota state law claims brought by an elementary school music teacher with multiple sclerosis that the school district failed to reasonably accommodate her disability and unlawfully discriminated against her when it refused to hire her for an administrative position concluding that the teacher failed to present sufficient evidence that she was actually disabled, had a record of a disability, or was regarded as disabled.

--Collazo v Bristol-Myers Squibb Manufacturing, Inc, (1st Circuit): An interesting one here. The 1st Circuit held that although a scientist’s supervisor did not speak when he accompanied her to the Human Resources Department (HRD), where she complained about being sexually harassed by another scientist, the First Circuit held that the supervisor “opposed” discriminatory conduct within the meaning of the opposition clause of Title VII's antiretaliation provision. In reaching this decision the Court applied the US Supreme Court's decision in Crawford v Metropolitan Gov’t of Nashville & Davidson County and held that the supervisor’s repeated efforts to assist a fellow employee in filing and pursuing her sexual harassment complaint with HRD qualify as protected opposition to the complained-of harassment.

Wednesday, August 4, 2010

7th Circuit Affirms Wisconsin's Donning/Doffing Compensable Time Law

In a decision that perhaps requires a chalkboard and a couple readings to fully grasp, the Court of Appeals for the Seventh Circuit has held that §203(o) of the Fair Labor Standards Act ("FLSA") does not preempt state law that lacks an equivalent exception.

In Spoerle v. Kraft Foods Global, Inc., the plaintiffs were employees at the Oscar Mayer plant in Madison, Wisconsin that required employees to wear safety gear, such as steel-toed boots and hard hats, plus a smock that keeps other garments clean, and workers also had to wear hair nets and beard nets to protect the food from dandruff and other contaminants. Kraft Foods and the union, Local 538 of the United Food and Commercial Workers Union, agreed under the collective bargaining agreement that this time is not compensable. As part of the agreement, workers were paid more per hour, which did not sit well with the plaintiffs.

The plaintiffs argued that that protective gear is not “clothing” under §203(o), and second that Wisconsin’s own wage-and-hour legislation lacks any equivalent to §20(o). The first argument was immediately shot down and unaddressed in the opinion because precedent already addressed the issue, leaving the second issue standing alone.

Kraft argued that §203(o) preempts Wisconsin law. The Seventh Circuit disagreed.
Management and labor acting jointly (through a CBA) have no more power to override state substantive law than they have when acting individually. Imagine a CBA saying: “Our drivers can travel at 85 mph, without regard to posted speed limits, so that they can deliver our goods in fewer compensable hours of work time.” That clause would be ineffectual. And a CBA reading instead that “our drivers can travel at a reasonable rate of speed, no matter what state law provides” would be equally pointless. Making a given CBA hard to interpret and apply (as the word “reasonable” would be) would not preempt state law on the theory that states must leave the interpretation of CBAs to the National Labor Relations Board and the federal judiciary; states would remain free to enforce laws that disregarded CBAs altogether. That is what Wisconsin does when determining which donning and doffing time is compensable.

DOL Releases Child Labor Rules Advisor

Can be found here.

Tuesday, August 3, 2010

Journal Sentinel Article on Former House of Correction Officer Whistleblower Case

The Milwaukee Journal Sentinel has this article on an interesting whistleblower claim filed by a former House of Corrections officer, Scot Galligan, after he was reprimanded, suspended for five months and moved from the day shift at Kettle Moraine Correctional Institution, near his home, to the overnight shift at Dodge Correctional, 25 miles away for reporting Warden Michael A. Dittmann.

Sexual Harassment Claims by Men on the Rise

The National Law Journal has this article that features my old supervisor over at the Detroit Field Office of the EEOC, Nedra Campbell.

Five Tips for Fighting Back Against FMLA Abuse

From CCH Work Week:
It’s only a small number of employees who take advantage of family and medical leave—estimates put it between five and 10 percent of the workforce—but because they keep taking leave over and over again, in any and every way they can, the costs add up in terms of the price of temporary help, lost productivity, missed deadlines, late shipments, lost business, and overworked staff.

Abuse of the Family and Medical Leave Act (FMLA) typically manifests itself as regular long weekends (the “Friday/Monday Leave Act”) and/or annual illness at the same time of year, often following denied requests for time off, during nice weather, or at traditional holidays. And then there is the employee with the “perfect fit.” That’s the one who manages to use exactly 12 weeks of leave every year.

FMLA abusers believe that there is nothing an employer can do about it as long as they get their certification. Matthew S. Effland explained how to fight back:

1.Train your managers,
2.Check your policies,
3.Require complete certification,
4.Get second opinions, and
5.Deploy surveillance and investigative techniques.