Tuesday, March 17, 2015

Absenteeism and Tardiness Will Still Get You Fired

Absenteeism and tardiness are a common reason why employees get fired, or so our recent observations suggest.

A.W.O.L. After an On-the-job-injury, and Retaliatory Discharge. An employee was fired for being A.W.O.L. (absent without leave) while recovering from an on-the-job injury. He was receiving workers' compensation benefits that included an allowance for total temporary disability. But he was too new to the job to qualify for leave under the Family and Medical Leave Act ("FMLA"); he had used up all his other leave; and he was, by his own admission, absent without leave. Is a viable case for retaliatory discharge lurking in all that? No.

The cause of action for retaliatory discharge for filing a workers' compensation claim was established years ago by the Illinois Supreme Court (Kelsay v. Motorola Inc., 74 Ill.2d 172 (1979)), and now it appears in the text of the workers' compensation statute itself. (820 ILCS 305/4(h)). In short, it is unlawful for an employer to discharge an employee "because" he/she asserted his/her rights under the workers' compensation statute.

But an employer is not obligated to retain an at-will employee who is medically unable to return to his assigned position, or to re-assign the employee to another position, and an employee may be fired for excessive absenteeism even if it is caused by a compensable injury. (Hartlein v. Illinois Power Company, 151 Ill.2d 142 (1992); Siekierka v. United Steel Deck Inc., 373 Ill.App.3d 214 (2007)). It is conceivable that an employer might cite attendance problems as a pretext to mask a firing that was actually motivated by animus against an employee who filed for workers' compensation benefits, but the point here is this:  The work-at-will rule permits either party to the employment relationship to end to it at any time for any reason or for no reason. If you don't show up for work and you've run out leave time, the fact that you’re off nursing an on-the-job injury does not suspend the work-at-will rule and preclude the employer from firing you.

Potpourri: Hostile Environment, FMLA, and a Straddle. In another case of absenteeism, an employee hit upon a straddle strategy that was doomed by its inconsistencies. She had worked uneventfully for a year at an in-house cold-calling operation. Then she told some co-workers she had an anxiety disorder (though they did not need to know that to do their jobs). Some subsequent comments offended her because she concluded that they were about her and unfavorable. But she did not notify her employer of her condition or of the situation, much less request an accommodation. Two weeks later she took what she characterized as FMLA leave on the strength of a note from the human resources department. A month later she applied for unemployment compensation. An objection on the part of the employer was sustained.

This individual described herself as disabled within the meaning of the Americans with Disabilities Act ("ADA") and a victim of "hostile environment" harassment. It is easier to accept the first of those conclusions than the second, though even the first is no "gimme": A proper plaintiff in an ADA case must be a "qualified person with a disability," i.e., capable of performing the essential functions of the job with or without an accommodation. In the case at hand, a reasonable accommodation may have been as simple as warning the co-workers to knock off the teasing or else, yet there appears to be a fair question whether the would-be plaintiff could handle the basics of the job in the absence of that accommodation.

In any event, the law recognizes hostile environment discrimination in the context of the ADA. But as in any other hostile environment case, the abuse must be so severe and pervasive that it alters the terms, conditions, and privileges of employment. (Ekstrand v. School District of Somerset, 583 F.3d 972, 977-78 (7th Cir. 2009)). It is difficult to conclude that the conduct complained of in this case rose to that level. It was limited to two weeks of occasional oral remarks of peers, not of supervisors, and the would-be plaintiff did not notify management of her condition or of the remarks of the co-workers, still less request an accommodation. She knew there was an H.R. department and how to communicate with it, for she had obtained from H.R. a note pertinent to FMLA.

As for the "straddle," the story here blended details that were incompatible with one another and fatal to all theories floated:  An employee who was supposedly on approved FMLA leave and had a note to prove it applied for unemployment benefits and made no reference to the note when the employer challenged the application. The story does not add up. According to Occam's razor, the simplest explanation for something is usually the correct explanation. This is more likely what happened:  Once she had been on the job for a year, she requested and received from H.R. written confirmation that she was now eligible for FMLA. But no specific leave was requested. She stopped showing up for work. The days turned into weeks. She put in for unemployment benefits and was turned down because she had voluntarily terminated the employment relationship by failing to report for work -- in a word: resigned. (See "voluntary leaving" at 820 ILCS 405/601). It had not occurred to her that her application for unemployment benefits would meet with objection, still less with an objection that was sustained. In an attempt to salvage something from her decision to stop showing up for work, she floated the untenable hostile environment theory.

Pregnancy: The Ticket to Special Treatment? In the third case, a pregnant employee was fired for being absent without leave. She had come in late for work or not at all on several occasions, and on some of those occasions she had been in a doctor's office dealing with back and leg pain associated with her pregnancy. To complicate matters, her job required heavy lifting and her doctor had imposed a lifting restriction upon her.

This case is strikingly similar to one that was argued before the Supreme Court of the United States last December. (Peggy Young v. UPS, Docket No. 12-1226). Peggy Young was (and still is) a part-time driver for UPS. She worked fewer than 19 hours a week, when she worked at all, and she was absent -- with leave -- for 13 of the 18 months between July of 2005 and December of 2006. On three occasions Ms. Young requested a leave of absence to undergo in vitro fertilization procedures. On each of those occasions, her request for leave was approved by the occupational health manager (Carolyn Martin). She miscarried the first time and was on leave between July and October of 2005. The second procedure failed, too, and she was on leave in February and March of 2006. Her third period of leave started in July of 2006. She became pregnant and immediately requested an extension of her leave. That request for leave was also approved (and from all indications the group health insurance Ms. Young enjoyed because of her employment with UPS paid all or most of the expenses of the in vitro procedures, which cost between $10,000.00 and $15,000.00 apiece).

UPS permitted its pregnant employees to work as long they liked until they became physically unable to perform. And many employees worked late into their pregnancies. Not so with Ms. Young. In September of 2006 she announced that she was ready to return to work, but that was not really true. She approached a supervisor with a doctor's note that imposed a lifting restriction upon her. The supervisor funneled Ms. Young back to the occupational health manager, who informed her that she could not return to work with the lifting restriction because lifting was an essential part of the job, and her inability to lift was not due to an on-the-job injury.

Ms. Young's response was complicated: First, she denied that her job entailed heavy lifting even though (i) her job description called for lifting up to 70 pounds, (ii) she had requested "light duty," and (iii) she asserted that co-workers would do her heavy lifting for her. Next, Ms. Young prevailed upon a midwife who did not as a rule issue notes to issue a note imposing the same lifting restriction that had been imposed by the doctor a few weeks earlier, even though the file of the midwife contained a note -- shown to no one -- that said Ms. Young had been released without any restrictions. She took the midwife's note to her supervisor, who again funneled her back to the occupational health manager. Later still, Ms. Young approached a building manager about returning to work, and again she was funneled back to the occupational health manager.

Between the established company policy and the pertinent parts of the union contract, light duty was available only to employees with an ADA disability or an on-the-job injury. Ms. Young, and any number of employees who were not pregnant did not qualify for light duty.  (Another sort of alternative employment, so-called “inside jobs,” was available only to drivers who had lost their driving privileges, and more to the point, it was not light duty.)

Even though Ms. Young had burned through all of her FMLA leave, UPS permitted her to stay on approved (but unpaid) leave through the end of 2006. She had the baby in the spring of 2007. Two months later she returned to work -- at UPS. And then she promptly filed suit against UPS for workplace discrimination, alleging in particular that by refusing to assign her to light duty, UPS had violated the ADA and the Pregnancy Discrimination Act (“PDA”), an extension of Title VII of the Civil Rights Act of 1964 which prohibits workplace discrimination on the basis of pregnancy.

The ADA claim contended that she was entitled to an accommodation in the form of light duty even though she was not disabled within the meaning of the ADA, nor disabled in her own estimation, nor regarded as disabled by her employer. Pregnancy has not hitherto been considered a disability as a rule. (The notion of pregnancy as pathology originated with the pro-abortion movement. See, for example, Doe v. Bolton, 410 U.S. 179 (1973), the health-of-the-mother companion case to Roe v. Wade.) The PDA claim of Ms. Young contended that the failure to offer her light duty also constituted workplace discrimination on the basis of pregnancy.

The federal trial judge granted a motion of UPS for summary judgment, which is to say that that case was a slam dunk for the employer in the trial court: Not one important fact was in dispute and there was no doubt at all that UPS was entitled to judgment.  Then the case went to the appeals court in Richmond, Virginia, and it was subject to the de novo standard of review, that is, there was absolutely no presumption that the trial judge got it right. Three more judges, starting at scratch, looked at the same evidence that the trial judge looked at, and reached the same conclusion. Another slam dunk for UPS. Four different judges in two separate layers of the federal court system concurred that Peggy Young did not have a leg to stand on. (And there are hints in the court opinions of suspicion that Ms. Young was attempting to game the system (e.g., the conflicting notes of the midwife, the untenable denials that the job required heavy lifting, appearing to avoid the occupational health manager and approaching other supervisors and managers (as if on the hunt for contradictions and inconsistencies that could be leveraged into a lawsuit)). Meanwhile, Ms. Young was the darling d’jour of the pundit class, which was all but unanimous in its carping and complaining about UPS.

The prediction here is that the Supreme Court will dwell upon the PDA dimension of the case, and the question will be whether the PDA prohibits discrimination or actually elevates pregnant employees into a favored class who are entitled to demand and receive privileges, advantages, and special treatment precisely because they are pregnant. Meanwhile, pregnancy became a disability that employers of any size must accommodate as of January 1, 2015 under pain of liability for violating the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.), owing to enactment of an amendment (House Bill 0008) last August. And you read that correctly: The duty to provide an accommodation applies to every employer in the state of Illinois no matter how small. The “ma and pa” store is no exception.

Thursday, March 12, 2015

Non-Competition Covenants: It Does Not Matter Who Ends The Relationship

         A recently-fired employee was heard to say that the good news of his situation was that his covenant not to compete was unenforceable because he had not resigned but had been fired. He is mistaken about that. The enforceability of a covenant not to compete does not depend on whether the employment relationship is ended by the employer (i.e., a firing) or by the employee (i.e., a voluntary resignation).

           All contracts require consideration to be enforceable. Covenants not to compete are no exception. Promises of employment can be lawful consideration, and a mere offer of employment might suffice for a covenant that is made at the start of an employment relationship (though there is now some doubt about that in Illinois law). But it takes more than a mere offer of continued employment to support a non-competition covenant that is made after the start of the employment relationship. In that case, employment must continue “for a substantial period of time.” As a practical matter, two years of continued employment is deemed the minimum to qualify as a “substantial period of time.” Otherwise there is a risk of illusory consideration: The work-at-will rule would permit an employer to fire an employee immediately after locking the employee into a covenant not to compete. The two-year rule applies whether the employment relationship is terminated by the employer or by the employee. The chap who declared his covenant unenforceable because the employer fired him is mistaken, unless, of course, there is something peculiar to his agreement that so provides (e.g., a clause to the effect that the covenant would be unenforceable if the employee were fired without cause).

             Doubt about the adequacy of consideration can be removed by supplying consideration in a form other than employment itself, for example, money, an extra sum of money specifically earmarked as consideration for a covenant not to compete. The question whether a covenant not to compete is or is not supported by consideration is not the only question relevant to enforceability but only the first question. Or to put it another way, consideration is a necessary but not sufficient for enforceability. The absence of consideration is fatal but its presence is not sufficient of itself to render the covenant enforceable. It must also be reasonable in its terms and reasonably necessary to protect legitimate business interests of the employer lest it be a mere restraint on trade.