I have promised to keep A Plus Benefits clients informed of developments concerning Department of Homeland Security rule changes involving Social Security Mis-Match letters. Below is a short article issued by BNA in their November 20th Bulletin to Management.

After the article concerning mis-match letters you’ll find an interesting article involving FMLA that appeared also appeared in the November 20th Bulletin to Management.

SSA Announces That It Will Not Issue Employer No-Match Letters This Year

The Social Security Administration will not be sending out no-match letters to employers this year because of the lawsuit challenging the Homeland Security Department’s worksite enforcement regulations, an SSA spokesman told BNA Nov. 13.

The decision not to send out the letters based on 2006 tax year data means SSA is not likely to send out any letters until at least spring of 2008, SSA spokesman Mark Hinkle said.

A federal judge in California granted a preliminary injunction Oct. 10 barring SSA from sending out the no-match letters because for the first time the letters were to include language threatening possible immigration law criminal and civil liability for employers that failed to respond.

“Because of the lawsuit, we needed to revise letters and it became apparent it was getting too late in the year to send them out,” Hinkle explained Nov. 13, adding that employers and SSA were already gearing up to focus on wage reporting for 2007.

The lawsuit was triggered by the Bush administration’s Aug. 10 announcement that SSA would be altering how it sends out no-match letters. According to the new rule, SSA would include language in the letter explaining that there was possible liability under immigration laws. In addition, SSA planned to include a general letter from DHS explaining the liability as well as describing a “safe harbor provision” meant to protect employers that attempted to comply with the letter.

Although DHS was not going to have access to the names of employers sent the no-match letters, the new rule would treat the receipt of the letter as evidence that the employer had “constructive knowledge” that an immigration violation was taking place.

The final rule was challenged in the U.S. District Court for the Northern District of California by a coalition of immigrant rights, organized labor, and civil liberties groups led by the AFL-CIO, the American Civil Liberties Union, and the National Immigration Law Center. The U.S. Chamber of Commerce and other business groups later joined the litigation.

One of the trickier aspects of the Family and Medical Leave Act is that employers may have to offer employees leave even if it is not specifically requested. If it is clear that an employee has a serious medical condition, that in itself may constitute notice to the employer.

Employee’s Behavior Goes to Dogs After Encounter With Stray

“You can’t fire me,” screamed employee Constance Caniscus. “I was seriously ill and sent you medical statements to prove it.”

“I’m sorry, but your behavior was so outlandish we didn’t want you in our employment,” replied HR Director Florence Bagley.

Did behavior constitute notice?

Facts: The employee was a receptionist and a clerical assistant in the company’s purchasing department for eight years and had a clean disciplinary record prior to an incident on Feb. 9, 2004, when a stray dog climbed through a window of the warehouse where she worked and approached her desk.

The employee said she immediately felt a headache, a rush of blood to her head, and a tightening of her neck and back. Her supervisor observed that the employee was agitated and was spraying a deodorizer, yelling, and cursing. Two hours later, the employee told the accounting manager that she was ill and needed to go home.

The following morning, the employee called in sick and went to the hospital for an unrelated medical test. On Feb. 11, the employee went to the office of the company’s president and screamed and cursed for eight to 10 minutes about the dog incident. The employee then left work.

Later that day, the employee filed a complaint with the Occupational Safety and Health Administration regarding the stray dog. She then went to a hospital emergency room, complaining of a headache, insomnia, anxiety, and loss of appetite for three days following what she described as an “emotionally stressful incident at work.” She was diagnosed with “anxiety and stress” and prescribed a medium dose of Ativan. The employee called in sick on Feb. 12 and met with a union representative to discuss the dog incident. She then called in sick on Friday, Feb. 13, and Monday, Feb. 16.

When she went to work on Feb. 17, she discovered that her supervisor had moved the contents of her desk to another room. The employee became agitated and called the police, saying she was being harassed. She placed a report about her emergency room visit on the accounting manager’s desk and left work at about 10 a.m., telling her supervisor that she was not feeling well.

That day, the company president authorized changing the office locks and sent the employee a letter stating that she had used up her paid leave and would be fired for unexcused absences if she did not submit a medical certification by Feb. 24.
The employee called in sick on Feb. 18 and visited her regular doctor, who prescribed a sleep aid and scheduled a follow-up visit for Feb. 20. The employee did not work the next two days. On Feb. 20 she gave her union representatives documentation about her emergency room visit. She again visited her doctor, who wrote a note excusing her absences from Feb. 9 through Feb. 20.

The employee came to work on Feb. 24 and discovered that the locks had been changed. The president refused to accept the doctor’s note as FMLA certification and gave the employee a box containing her personal belongings. In a March 9 letter, the company told the employee she was terminated effective Feb. 25.

She sued under the FMLA, but the U.S. District Court for the Northern District of Illinois dismissed the case. She appealed.

Award: The former receptionist may proceed with her claim under the Family and Medical Leave Act, the U.S. Court of Appeals for the Seventh Circuit ruled Oct. 16 in a 2-1 decision ( Stevenson v. Hyre Elec. Co., 7th Cir., No. 06-3501, 10/16/07).

Discussion: The appeals court found that the employee raised genuine issues of material fact as to whether her unusual behavior on several days—including yelling and swearing at her superiors and calling the police—gave the employer constructive notice of her need for FMLA leave for a serious health condition.

“[A] trier of fact could find that her behavior was so bizarre that it amounted to constructive notice of the need for leave,” the court said.

Pointers: When requesting FMLA leave an employee is not required to say, “I’m taking FMLA leave,” or even to mention the FMLA by name. The employee only has to give the employer sufficient information to put it on notice that the leave is qualified under the FMLA. Thus, given these flexible notice requirements, if all other FMLA conditions are met, it is likely that even with improper notice, the leave is nevertheless counted under the federal statute.

In such cases, the employer still has the right to require verification of the reason for the leave, but the employer cannot contact anyone but the employee for that verification, such as the doctor or family members, unless the employee grants permission.

Further Discussion: It is important for all A Plus Benefits clients to remember that the Department of Labor has interpreted the FMLA in such a way as to make all employees associated with a Professional Employer Organization eligible for FMLA whether or not the individual client organization would be required to comply on it’s own merits. Your assigned HR Advisor can address any concerns with FMLA.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Read Randall’s previous HR update.

The following case was highlighted in a recent edition of BNA’s Bulletin to Management.

Was Termination Retaliation for Workers’ Compensation Claim?

“You fired me for filing for workers’ comp,” complained employee Jennifer Lilly. “That’s illegal retaliation.”

“We let you go because of your poor work habits,” countered Human Resources Director Sylvia Potter. “Nothing more.”

Did the employer retaliate?

Facts: A worker at a door factory injured her back at work. Her doctor put her on light duty and referred her to a specialist. A few days later, the department supervisor gave the employee a step warning for substandard performance. Under company policy, an employee would be fired for receiving four step warnings within a certain time frame.
The employee’s doctor faxed more specific work restrictions to the company. Three days later, a supervisory assistant issued the employee another step warning for substandard work. Her doctor notified the workers’ comp insurer that the employee had a herniated disc with nerve root impingement.

Two days later, the employee’s supervisor sent an e-mail to a human resources official suggesting that the employee be assigned a list of dirty jobs, including cleaning the rest rooms, or be moved back to her previous, lower-paying job in another department. The worker reluctantly accepted the transfer, which also resulted in a loss of seniority.
There, her new supervisor questioned whether her work restrictions were necessary. He picked up the chair that she used—as directed by her doctor—for periodic rest breaks and threw it across the room.

The employee was injured again when a co-worker pushed a stack of doors onto her ankle. She twisted her knee at work weeks later, and her supervisor questioned whether she should continue working at the company in light of her “excessive” injuries.

The employee hired an attorney to help obtain workers’ comp benefits. Her supervisor issued her a third step warning for using the wrong machine. She then complained to the human resources department about her supervisor. Two weeks later, he gave her a fourth-step warning for substandard work, triggering her discharge.

A jury ruled in favor of her claim of wrongful discharge in violation of public policy and awarded her $25,000 for emotional distress, $50,000 in back pay, $150,000 in future pay, and $775,000 in punitive damages. The employer challenged the award, and the appeals court sent the case back to the trial court for reconsideration of damages. The trial court found in the employer’s favor.

Award: The Iowa Court of Appeals Oct. 12 reinstated the $1 million jury verdict for the employee (Holding v. Graham Mfg. Corp., Iowa Ct. App., No. 7-411/06-1729, 10/12/07).

Discussion: Reversing the lower court and upholding the earlier jury verdict, the appeals court said that “a reasonable juror could conclude [the employee] was disciplined under false pretenses because most, if not all, of the four step warnings for improper performance did not reflect any mistake on her behalf.”

Her first supervisor’s e-mail to human resources and a meeting to discuss workers’ compensation costs in his department “may be viewed as showing that she was demoted because of the expenses associated with her workers’ compensation benefits,” the court said. It also found that her new supervisor demonstrated “open hostility” toward her work-injury claims.

Pointers: Under workers’ compensation programs, injured employees usually receive benefits regardless of fault, that is, whether the employee, the employer, or a third party such as another employee caused the injury.

Employers cannot call or harass employees who file workers’ compensation claims to find out when they plan to return to work.

Most states require employers to work with an employee, the insurer, and the medical provider to attempt to return the employee to work.

If employers fail to follow the required workers’ comp procedures, they may be subject to penalties from their state.

There is one circumstance when an employer is permitted to terminate an employee on workers’ compensation leave. This is when the employee’s medical condition has been discussed with her physician and it has been determined she will not be released to return to work without job restrictions (e.g., the employee can no longer lift more than 10 pounds) and those job restrictions preclude her from performing the essential functions of her position.

If an employer wants to terminate an employee for fraudulently collecting workers’ compensation benefits when the employee is capable of working, its first call should be to the state workers’ compensation agency’s fraud department (for A Plus clients this call would go to Justin Rowley, VP Risk Management).

This case discussion illustrates the handling of a problem in employee relations. It is based on an actual court ruling, although the names and dialogue are fictitious.

Further discussion: An employee who has experienced a work place accident can be discharged if the employee tests positive for substance abuse. Even though the employee has tested positive for drug abuse the medical costs will still be covered by workers’ compensation insurance but the employee will not qualify for TTD – total temporary disability payments. Also, an employee who is terminated for testing positive for drug use subsequent to an on the job injury will not qualify for unemployment insurance benefits.

A Plus Benefits suggests that clients take the opportunity of discussing a possible discharge for any employee who is currently on leave or light duty due to a workers’ compensation covered injury with the Human Resources department.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Read Randall’s previous HR update.