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Employer Law Report

FMLA Leave: sometimes, it is about putting the pieces together

Posted in Leave Administration

Finding that the circumstances surrounding the plaintiff’s initial absence from work and his doctor’s note were enough for a reasonable jury to find that his employer was on notice of a request for FMLA protections, the Sixth Circuit Court of Appeals reversed the district court’s decision granting summary judgment to the employer in Festerman v. County of Wayne, 14-1950 (6th Cir. 2015). The court also found that there was sufficient evidence to permit a reasonable jury to find that the plaintiff was constructively discharged in retaliation for seeking FMLA leave. As a result, the case was remanded back to the district court for trial.

Robert Festerman was employed with Wayne County as a deputy in the Wayne County jail, which was managed by the Wayne County Sheriff’s Office, for about five years. The deputies were regularly scheduled for mandatory overtime, which they were not permitted to refuse. Any deputy who failed to report for overtime assignments would receive a Conduct Incident Report (“CIR”). On March 3, 2012, Festerman began having chest pains and shortness of breath during his shift. He was transported to the hospital by ambulance and his sergeant filed an incident report regarding Festerman’s medical issue the same day.

Festerman returned to work several days later with an injury report and a doctor’s note which stated he was to limit working hours to 8 hours per day. Festerman’s doctor also prescribed medicine for his anxiety disorder. Wayne County accommodated Festerman’s medical request of no overtime for several weeks; however, on March 29, 2012, the Sheriff’s office began denying all medical requests for no overtime work, and began issuing CIRs to all deputies who refused to work overtime shifts.

The next week, Festerman received three CIRs for refusing overtime work. Commander Gatti recommended Festerman be referred for administrative review for failing to follow a direct order. Wayne County also modified Festerman’s job description—increasing the minimum number of hours in a workweek from 40 hours to 40.5 hours and making mandatory overtime an essential function of the position.

In mid-April, Festerman spoke with two human resources employees regarding the CIRs. Festerman alleges he was advised to complete all necessary paperwork for FMLA intermittent leave. Festerman inquired about whether the medical note submitted in March was sufficient, and alleges he was told it was. Festerman received the leave of absence packet, and submitted the completed forms to Wayne County within a couple of weeks. Several days after submitting the FMLA paperwork, the HR representative sought clarification from Festerman’s doctor regarding his work schedule and workday shifts.

Alleging that he and other deputies with medical issues were being harassed, Festerman resigned his employment on June 20, 2012, before the HR representative received a response from his doctor.

The Suit

Festerman filed suit in the District Court on April 25, 2013, alleging FMLA interference and retaliation. Wayne County filed a motion for summary judgment, asking the court to dismiss the case, which the court granted in June of 2014.

The Appeal

Festerman appealed to the Sixth Circuit Court of Appeals. Focusing on the FMLA interference claim, the court examined whether the district court erred when it granted the motion regarding the FMLA interference claim. The court examined whether the medical note from Festerman’s doctor was sufficient notice to trigger FMLA protections, and found that a reasonable jury could conclude that it was.

Although the court found Festerman’s doctor’s note did not reveal the condition that gave rise to the overtime limitation or any additional prescribed treatment, it disclosed a requirement of limiting the number of hours Festerman could work in a day. The note coupled with the circumstances surrounding the initial qualifying leave—the serious health-related incident at work which required he be transported to the hospital, were enough to provide the employer with notice that a potential FMLA-qualifying condition might exist.

The court found Festerman had raised genuine issues of material fact as to whether he satisfied the FMLA notice requirements on March 12, 2012.


Even when employees have not explicitly asked for FMLA leave, employers should err on the side of providing FMLA benefits when the circumstances suggest that the employee might be eligible. Employers should also train human resources representatives and supervisors how to recognize and respond to issues that might suggest that FMLA leave is being sought.

Renovating Your Workplace: Employment Relations Best Practices for HR Professionals

Posted in Events




Join us May 21, 2015

Tricks of the Trade: How the Pros Deal with an FMLA Abuser
Attendees will hear key strategies for managing the primary situations in which FMLA abuse by employees occurs, learn how to counteract that abuse within the confines of the law, and how to avoid pitfalls when doing so. Of particular focus will be how to use the provisions of the FMLA to the employer’s advantage to legally and permissibly root out abuse and fraud by employees.

Danger Zone: Avoiding the 10 Most Common Mistakes Under the FLSA
Employer compliance with the Fair Labor Standards Act continues to be one of the most litigated areas in employment law. This session will address the 10 most common mistakes made under the FLSA and key takeaways to keep your workplace out of the danger zone.

What’s in Your Toolbox?
Defining a Blueprint for Your HR Decision-Making Process to Reduce Risk: As a busy HR Professional, you need to make sure you have the right tools in your toolbox and a solid blueprint for success. One wrong move can put your business at risk. In this session, we will train your HR reflexes to help you navigate the decision making process effectively. We will help you manage each important step, focusing on workplace investigations and other fact-gathering efforts, best practices for making fair and defendable decisions, and the importance of documentation along with the way.

Please RSVP by May 18th to Andrea Wise at awise@ohiochamber.com or 614.228.4201

Thursday, May 21, 2015
Registration: 8:15am – 9:00am
Seminar: 9:00am – 12:00pm

The Dayton Marriott
1414 South Patterson Blvd.
Dayton, OH 45409

Dave Croall and Rachel Burke

Join us in Columbus on May 19 for a breakfast briefing – “Defining Your Company’s Immigration Policy”

Posted in Events, Immigration

Immigration header

Breakfast Briefing: Defining Your Company’s Immigration Policy

Like never before, in order to compete in today’s global marketplace, companies need to ensure they have the best talent with the skillset that will help distinguish them from their competition. Many companies find that the best talent may not be around the corner and companies must look more globally to acquire the workforce their businesses demand.

In this breakfast briefing, Rob Cohen, Chair of Porter Wright’s Immigration Practice, will address the range of potential issues for employers who hire foreign nationals and issues to consider when developing a corporate immigration policy to help manage the immigration caseload, costs, and the expectations of the foreign national employees, their families and the managers responsible for their work.

Key takeaways will include:

  • Effective policies to build the institutional knowledge necessary to balance the demands for access to international talent and still maintain an effective compliance program.
  • Develop training models to ensure your company is complying with immigration laws across your workforce.
  • Address the needs of foreign national employees’ and their families with policies consistent with other Human Resource policies and practices.
  • Maintaining the flexibility to adapt and take advantage of developments in immigration law that may impact the concerns of the foreign national employees.
  • How to best manage job changes and comply with outdated immigration laws.

Your Speaker:

Rob Cohen has extensive experience in all aspects of business and family immigration procedures. Rob is past Chair of the Board of Trustees for the American Immigration Council, has served as the Ohio Chapter Chair of the American Immigration Lawyers Association, Chair of the Nebraska Service Center Liaison Committee, and is currently Vice Chair of the USCIS Benefits Liaison Committee. He has been listed in The Best Lawyers in America®. in the areas of Immigration Law every year since 1995, and was most recently named The Best Lawyers in America® 2015 Columbus, Ohio Immigration Law Lawyer of the Year and is recognized by Ohio Super Lawyers®. In addition to his legal experience, he is also an instructor for the Legal Assistant program at Capital University.

There is no charge for this seminar; however, seating is limited. Please RSVP by Tuesday, May 12. If you have questions, please contact Erin Hawk.


Tuesday, May 19, 2015

8:00am – 8:30am Registration and breakfast

8:30am – 10:00am Program and Q&A

10:00am Closing remarks


Porter Wright 41 South High St. 29th Floor Columbus, Ohio 43215


Porter Wright will validate parking in the Huntington Center Parking Garage.


UPDATE: Same sex marriage rule for FMLA halted in only four states

Posted in Leave Administration

We reported in February on a Department of Labor (DOL) rule permitting same sex partners who are legally married to take FMLA leave to care for their spouse, regardless of whether they live in a state that recognizes same sex marriage (so long as they were legally married in a state that recognizes same sex marriage). The law was set to go into effect March 27, 2015. On March 26, 2015, however, a group of attorneys general from Texas, Nebraska, Arkansas, and Louisiana obtained a preliminary injunction that delayed the rule’s implementation until the court considers the full merits of this case. While there was initially some ambiguity about the scope of the delay in implementation, the DOL has indicated that it will enforce its new rule in the 46 states where the injunction does not apply, meaning that employers in Ohio are required to adjust their FMLA policies and practices. Only employers in Texas, Nebraska, Arkansas, and Louisiana should continue operating under the prior definition of a “spouse” for FMLA purposes. The future of the DOL’s rule also hinges on the Supreme Court’s decision in Obergefell v. Hodges in which the Court is expected to address the constitutionality of same sex marriage bans. Oral argument in that case was held on April 28, 2015.


Join us in Cleveland on Wednesday, May 13 for our Spring Employment Relations Seminar – Fresh Ideas for Employers

Posted in EEO, Events, Workers' Compensation

Fresh ideas header

Need to refresh your workplace?

Join Porter Wright’s Labor and Employment Group on Wednesday, May 13 as we share Fresh Ideas for Employers

Topics Include:

Freshly Picked: A Review of Recent Employment Law Updates Tracey L. Turnbull, Porter Wright

As you look to make sure your policies and practices reflect recent developments, you will not want to miss this session. We will review recent significant judicial and administrative decisions addressing a variety of employment law issues. This review will highlight the best practices and instincts that will ensure you are complying with new laws and developments.

Straight Off the Vine: An Update for Employers from the Bureau of Workers’ Compensation Mark Clendenin, Ohio Bureau of Workers’ Compensation and Fred J. Pompeani, Porter Wright

In this session, we are bringing you the freshest developments out of the Bureau of Workers’ Compensation (BWC). We will be joined by Mark Clendenin, Regional Business Development Manager-Northeast at the BWC, who will share with us important insights and changes that will impact your workforce.

Planting the Seeds and Reaping the Rewards: Addressing Employee Complaints Early Helps Reduce Risk Margaret M. “Peggy” Koesel, Margaret M. Koesel & Co. Conflict Resolution

Employers who address internal employee complaints through early intervention and proactive mediation help reduce their potential liability. In this session, we will discuss early intervention best practices that provide a healthy environment for your workforce to thrive.

There is no charge for this seminar; however, seating is limited. Please RSVP by Thursday, May 7. If you have questions, please contact Erin Hawk.

Register here - fresh ideas

Wednesday, May 13, 2015

7:45 – 8:30 a.m. Registration and breakfast

8:30 – 11:00 a.m. Program

Location LockKeepers Restaurant 8001 Rockside Road Valley View, OH 44125


Add this seminar to your calendar!

Courts can (barely) weigh in on whether EEOC satisfies its conciliation obligations

Posted in EEO

On Wednesday of this week, the U.S. Supreme Court unanimously vacated and remanded a 7th Circuit decision that said courts could not review whether the Equal Employment Opportunity Commission (EEOC) satisfied its conciliation obligations under Title VII. Mach Mining LLC v. EEOC, No. 13-1019 (2015). The review the Court permitted, however, remains limited and courts are only to enforce the EEOC’s obligation to give an employer notice and a chance to achieve voluntary compliance. The court made a point to recognize that the EEOC still had “extensive discretion to determine the kind and amount of communication with an employer in any given case.”

Under Title VII, if the EEOC determines that there is reasonable cause that discrimination exists, it has a responsibility to remedy that discrimination through informal methods of “conference, conciliation, and persuasion.” 42 U.S.C. 2000e-5(b). If the EEOC is unable to obtain conciliation that is “acceptable to the commission” only then may it file suit.  42 U.S.C. 2000e-5(f)(1).

The Court determined the EEOC’s obligations amount to informing the employer about the specific discrimination allegation and describing what the employer has done and which employees have suffered. Then, the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the alleged discriminatory practice.  The EEOC does not have much to do to show that is has met this obligation, however. A sworn affidavit from the EEOC stating that it has performed these obligations is sufficient. The employer must then present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating a claim. Should the court find for the employer, the remedy is only to order the EEOC to undertake mandatory conciliation efforts.

The facts in Mach Mining involved a woman who filed a charge against the company claiming that it refused to hire her as a coal miner because of her sex. The EEOC investigated the claim and determined that reasonable cause existed to believe that the company had engaged in discriminatory hiring practices. The EEOC sent a letter to Mach Mining stating that it was invited to participate in informal conciliation proceedings with the charging party and notifying them that a representative of the EEOC would be contacting them to begin the process. One year later, the EEOC sent Mach Mining another letter stating it had determined conciliation efforts had been unsuccessful. The EEOC thereafter brought suit against the company in federal court. The Company defended that the EEOC had not fulfilled its obligation to conciliate and the commission countered that conciliation obligations were unreviewable.

The Supreme Court’s decision is a bit of mixed bag for employers. Hopefully, it will force the EEOC to engage in more meaningful conciliation efforts in the future and give the EEOC and employers more latitude in their efforts to avoid litigation. On the other hand, the scope of review is so narrow and the remedy for employers so limited that there is little incentive for employers to pursue this issue once the complaint is filed.

Proposed Ohio Senate bill would permit workers’ compensation benefits for emergency personnel With PTSD

Posted in Other Articles

Ohio Senators have introduced a bill to change Ohio workers’ compensation laws to permit claimants who are peace officers, firefighters or emergency medical personnel diagnosed with post-traumatic stress disorder (“PTSD”) to obtain workers’ compensation benefits.

Presently, Ohio law only recognizes claims for psychological conditions if the psychological condition arises out of an injury or occupational disease or is the result of sexual assault. As we have previously reported on this blog, the Ohio Supreme Court, in the Armstrong v. John R. Jurgenson Comp., et al., case explicitly determined that compensable psychological conditions must arise out of the claimant’s physical injuries. A psychological condition such as PTSD that arises due to an incident and not physical injuries is not compensable. The pending bill proposes to change that standard for emergency personnel and permit them to receive benefits even if the PTSD does not arise out of physical injuries.

According to an AP news article, The Ohio Bureau of Workers’ Compensation believes the change in the law could be extremely costly and estimates it could cost employers $182 million annually and double the premiums for public employers. This estimate was calculated presuming 18% of first responders would file claims for PTSD. Similar legislation in other states has drawn criticism from police chiefs who worry about the increased financial burden.

Although the immediate impact would be on public employers, should the proposal become law, it may lead to a movement for the law to be changed to permit all employees to receive benefits for PTSD, regardless of whether a physical injury caused the psychological condition.

Last year, the bill’s sponsors proposed a similar measure which the Senate passed with bipartisan support. However, the House never voted on the measure. Presently, the Senate has delayed any vote on the issue for further comment from interested parties. We will keep you updated on whether or not the legislators pass the proposal and its potential impact.

EEOC issues proposed rule on ADA application to employer wellness programs

Posted in EEO, Employee Benefits/ERISA

On April 16, 2015, the EEOC released its long-anticipated proposed rule on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. For the most part, the rule reflects the EEOC’s efforts to make the ADA’s requirements consistent with the requirements for employer wellness programs that are already found in HIPAA’s non-discrimination provisions, as amended by the Affordable Care Act (“ACA”), but there are some key differences and the EEOC’s proposed rule leaves open some questions that hopefully will be addressed when the final rule is issued. (Note that the Office of Civil Rights of the U.S. Dept. of Health and Human Services also issued two FAQ’s regarding the application of HIPAA privacy and security rules on workplace wellness programs on April 16th. Those FAQ’s can be found here.)

Many employers use wellness programs in an effort to promote healthier lifestyles for their employees and families, which of course also tends to reduce the employers’ health insurance expenses.  In these programs, employers use tools such as health risk assessments that measure such health markers as blood glucose and cholesterol levels, blood pressure and body mass indices and typically provide health insurance discounts or other financial incentives to get employees and their families to either participate or to achieve specific healthier outcomes.

In order to ensure that participation in wellness programs are voluntary, however, the EEOC’s proposed rule limits the financial incentive that an employer may offer employees to 30% of the total cost of employee-only coverage under the plan, including both employee and employer contributions towards the cost of coverage (or 50 percent to the extent that the additional percentage is attributed to tobacco prevention or reduction).

It is unclear why the EEOC’s proposed limitation is based on employee-only coverage when the ACA does not seem to limit the incentive to employee-only coverage. The EEOC’s proposed rule also puts the 30% limitation on any participatory wellness program where participation requires employees to answer disability-related inquiries or submit to medical examinations. The EEOC clarifies, however, that a smoking cessation program that merely asks employees whether or not they use tobacco (or whether or not they ceased using tobacco upon completion of the program) is not an employee health program that includes disability-related inquiries or medical examinations.

Further, to ensure that participation in a wellness program that includes disability-related inquiries and/or medical examinations and that is part of a group health plan is truly voluntary, the proposed rule would require that an employer must provide a notice that clearly explains what medical information will be obtained, who will receive the medical information, how the medical information will be used, the restrictions on its disclosure, and the methods the covered entity will employ to prevent improper disclosure of the medical information. Finally, the proposed rule allows the disclosure of medical information obtained by wellness programs to employers only in aggregate form, except as needed to administer the health plan.

Interestingly, the EEOC’s proposed rule chooses to ignore the ADA statutory safe harbor provision that exempts certain insurance plans, including group health plans, from the ADA’s general prohibitions, including the prohibition on “required” medical examinations and disability-related inquiries. The EEOC’s ability to restrict the terms of a wellness program based on its inclusion of disability-related inquiries ultimately may end up being litigated in court. Indeed, a panel of the 11th Circuit Court of Appeals already has concluded that the safe harbor applies to permit the disability-related inquiries to be made as part of a wellness program established as part of a group health plan.

The EEOC’s proposed rule does not address the extent to which Title II of the Genetic Information Nondiscrimination Act (GINA) affects an employer’s ability to condition incentives on a family member’s participation in a wellness program. This issue apparently will be addressed in future EEOC rulemaking.

Although the EEOC’s proposed rule on employer wellness programs won’t go into effect until after a comment period has passed and the rule (as it may be amended) becomes final, employers should evaluate their wellness programs to determine whether they will be compliant. At a minimum, employers should be sure that they do not require employees to participate in their wellness programs or deny health insurance to those who do not participate or meet stated health-related goals. In addition, employers may not take any other adverse employment action or retaliate against those who do not participate or meet their health-related goals.

Quitting Employment for Personal Reasons Precludes Temporary Total Disability Compensation

Posted in Workers' Compensation

In State ex rel. Hildebrand v. Wingate Transp., Inc., the Ohio Supreme Court  recently ruled that an employee who quit his job for reasons unrelated to his work injury was barred from receiving temporary total disability compensation.

Brian Hildebrand, a mechanic with Wingate Transport, Inc. injured his back on June 3, 2009. On June 8, 2009, he sought chiropractic treatment and was diagnosed with a left sacroiliac joint sprain/strain. After seeking treatment, he returned to work the following day with a note from the chiropractor restricting him to modified duties.   Hildebrand spoke with the owner, Jeffrey Wingate, and confirmed he could perform light duty work. During the same conversation, Wingate asked Hildebrand to return a borrowed Jeep that Wingate had loaned him after his own vehicle had been wrecked during an accident. Hildebrand inquired whether his employment was being terminated. The incident escalated and ultimately the police were called to the premises. In cooperation with the police, Hildebrand left the worksite and never returned.

A week later, Hildebrand filed for unemployment benefits; however, the Department of Job and Family Services denied the request, finding he had quit his job for personal reasons without just cause.  He then filed for workers’ compensation benefits.   Wingate objected to the claim, arguing that Hildebrand had pre-existing low back injuries.

The Industrial Commission recognized Hildebrand’s claim for left sacroiliac sprain/strain but denied his request for temporary total disability compensation, finding that he had voluntarily quit his employment. Hildebrand filed a mandamus challenge to the Industrial Commission’s decision. The court of appeals denied Hildebrand’s request, finding that the evidence supported that he had quit his job for reasons unrelated to his work injury. Hildebrand in turn appealed to the Supreme Court of Ohio.

Temporary total disability compensation is intended to compensate an injured worker who is unable to return to work as a result of a workplace incident. The key determination is whether or not the work incident is the reason why the employee is unable to return to work. Under the abandonment doctrine, an employee who voluntarily leaves a position of employment is not entitled to receive temporary total disability compensation.

In this case, Hildebrand conceded that he quit his job for reasons unrelated to his work incident. He argued that he was not barred from receiving compensation because at the time he quit his job, he was under medical restrictions and not able to perform the duties of his job. He argued that his departure could not be considered voluntary since he was under work restrictions. His argument was based on the Supreme Court of Ohio’s 1996 decision in State ex. rel. Pretty Products v Industrial Comm’n, in which the Court held that an injured worker who was injured at the time they left their employment could not be found to have voluntarily abandoned their employment.

On the other hand, Wingate argued that Hildebrand ended his employment for reasons unrelated to his work incident and thus his departure from employment which caused him to lose wages was not causally related to his work incident. The Supreme Court agreed and found that because Hildebrand could not demonstrate that his loss of earnings was due to his work incident, he did not meet the requirement for receiving temporary total disability compensation. In this case, it was undisputed that Hildebrand quit his job following a disagreement with his employer over a vehicle. The disagreement had nothing to do with his injury or work incident. Hence, the Court found that his departure from the workplace was not causally related to his industrial injury and he was not entitled to receive temporary total disability benefits.

The Supreme Court distinguished the facts in Hildebrand’s situation from several other cases including Pretty Products in which employees were found to be entitled to temporary total disability benefits after their employment ended. The Court found the distinction to be significant between situations involving employees who had been discharged from employment while receiving temporary total disability compensation and cases similar to Hildebrand, who voluntarily quit his employment. Ultimately, the Court stated it would be illogical to grant Hildebrand compensation when he voluntarily left his job due to reasons not related to his work injury.

The voluntary abandonment doctrine remains a viable defense to injured workers’ requests for temporary total disability compensation when an employee’s own actions take them out of the workforce rather than their work injury. Generally speaking, however, employers should remain diligent in working with employees who have been injured on the job to help them return to work.

No “friending” allowed – final resolution on Gawkers notice of class action participants via social media

Posted in Employment Class & Collective Actions, Social Media

We have reported on a federal court’s rulings related to plaintiff’s efforts in Mark v. Gawker Media LLC (S.D.N.Y.) to use social media to notify potential class action members here and here. On April 10 the court held that the class plaintiffs, former interns for the website Gawker, can use social media to notify potential members of their class, with certain restrictions. Plaintiffs are permitted to reach known former Gawker interns via social media with a message that is “substantially similar” to the message contained in traditional forms of notice sent in the case. The court, however, ordered that plaintiffs “unfollow” any interns on Twitter when the opt-in period closes unless the individual has chosen to opt in to the action. In addition, plaintiffs are not permitted to “friend” individuals on Facebook, as it could create a misleading impression of the individual’s relationship with plaintiffs’ counsel.