In Frye v. Baptist Memorial Hospital, Inc., the United States District Court for the Sixth Circuit handed down not one, but two favorable rulings for employers in an FLSA collective action.
Continue Reading The Sixth Circuit Gives Employers a “Twofer”: An Employer’s Automatic Pay Deduction Policy Does Not Automatically Violate the FLSA and a Class Plaintiff Must “Commence” Suit

Last month, the Eleventh Circuit Court of Appeals (which has jurisdiction over Florida, Georgia and Alabama) held that a pregnant employee, who provided several months notice to her employer of her intention to take leave upon the birth of her child, was protected under the Family and Medical Leave Act ("FMLA") despite the fact that at the time she provided the notice, she was not eligible for FMLA. In short, the court held that the FMLA protected employees who make pre-eligibility requests for post-eligibility leave from both interference with the leave and from retaliation.

Appellant Kathryn Pereda ("Pereda") began working for Brookdale Senior Living Communities, Inc. on October 5, 2008. In June of 2009, Pereda advised Brookdale of her pregnancy and that she would be requesting FMLA leave around November 30, 2009, after the birth of her child.

Pereda alleges everything changed after she announced her pregnancy. First, she was no longer considered one of the top employees at Brookdale. Second, Brookdale began harassing her, causing stress and complications in her pregnancy. Third, Brookdale’s management placed her on a performance improvement plan with unattainable goals. Lastly, Pereda alleges that although she was eligible for sick and personal leave and was told she could use that time for doctor’s visits, management wrote her up for taking leave time to visit the doctor.

In August of 2009, Pereda took a few days off, and notified Brookdale management of her absence via email. When she returned to work she was written up for failure to obtain verbal authorization for her absence.

In September 2009, Pereda’s physician placed her on bed rest. Pereda left a phone message with the executive director, but did not receive a return call. Pereda was unable to reach someone at Brookdale until several days later, at which time she was fired.

Pereda filed a Complaint against Brookdale on May 11, 2010, asserting that "Brookdale interfered with her FMLA rights, insofar as Brookdale denied her benefits under the FMLA to which she was entitled, and terminated her for attempting to exercise those rights."


Continue Reading Notice of Intent to Take FMLA Leave May Just Be Enough

The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.
Continue Reading Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet’s Disability Discrimination Case

Even in the face of an undisputed national workforce reduction, in a recent decision (Cutcher v. Kmart), the Sixth Circuit found an issue of disputed fact existed as to whether Kmart’s termination of an hourly associate as part of a reduction in force interfered with and was in retaliation for that associate’s recent exercise of her FMLA rights.
Continue Reading Lessons Learned for Performance Appraisals and RIFs from the Sixth Circuit in Cutcher v. Kmart

The U.S. Court of Appeals for the Ninth Circuit recently announced it will review the February 2007 decision to certify a class that potentially includes 1.5 million current and former female employees allegedly underpaid and denied promotion opportunities on the basis of their sex.
Continue Reading Ninth Circuit to Hear Argument on Class Certification Decision in Wal-Mart Class Case

A recent Sixth Circuit decision addressed the issue of whether the disclosure of confidential, proprietary documents by an employee to her attorneys constitutes a protected activity for which the employee cannot be terminated or otherwise disciplined. In 2000, numerous individuals filed a class action against the Cincinnati Insurance Company (CIC), alleging that CIC had discriminated against women in violation of the Equal Pay Act (EPA). Kathy Niswander, a claims manager at CIC, was one of the plaintiffs in the class action. 

In order to respond to CIC’s discovery requests, the plaintiffs’ attorneys asked each of the plaintiffs, including Ms. Niswander, to send them any documents in their possession that related to the case or that might support their discrimination claims. In response, Ms. Niswander sent the attorneys any documents she had that could potentially be relevant, but she also submitted confidential claim-file documents that did not contain any information relevant to the alleged discrimination.


Continue Reading Sixth Circuit Applies Balancing Test In Retaliation Case Involving an Employee’s Disclosure of Confidential Documents