HR Specialist: Ohio Employment Law by Capitol Information Group

HR SPECIALIST

OHIO Employment Law

Trusted compliance advice for Ohio employers

Editor: Jan E. Hensel, Esq., Buckingham, Doolittle & Burroughs, LLP, Columbus

Avoid one simple mistake that triggers FMLA lawsuits

FMLA

hen it comes to collecting proof about an employee’s FMLA medical leave, simple errors can cost your organization big bucks. One common mistake: failing to give employees at least 15 calendar days to obtain the necessary medical certification to prove their need for FMLA leave. As shown by a recent ruling from the 6th Circuit (which includes Ohio), that same rule holds true in recertification cases if employees need to extend their FMLA leaves. You must give workers at least 15 days from the date they ask for the extension. To verify those dates, send notice of FMLA requirements to employees in

writing, preferably by certified mail. Include the deadlines and consequences for not meeting them. Establish a tickler file to track leave requests, your response and certification requests. Follow the same procedure with every request. Recent case: After her surgery, Jackie Killian was granted FMLA leave until Dec. 10. But the surgery led to complications, so she called on Dec. 4 to request an extension. A supervisor verbally approved the extension but asked for new medical certification. The company fired Killian on Dec. 10 (her original return date) because she hadn’t returned to work and didn’t

provide the recertification form. She filed an FMLA suit, saying the company didn’t give her 15 days to obtain the recertification form. The court agreed and awarded her $50,000. (Killian v. Yorozu Automotive, No. 04-6202, 6th Cir.)

Free report How to Wipe Out Fraud and Abuse Under FMLA For an 11-step process to prevent fraud by employees inclined to “work” the system, download our free three-page primer, How to Wipe Out Fraud and Abuse Under FMLA, at www.theHRSpecialist. com/whitepapers.

How to get rid of ‘bad attitude’ workers the legal way

Terminations

very now and then, you hire a dud: someone who comes with a remarkable résumé … and an attitude to match. Supervisors want to cut him loose. But before you do, document the problems with specific examples. Too often, managers’ notes and reviews cite nebulous complaints about “bad attitude” and “poor ability to get along with subordinates.” To a court, these comments may look like empty excuses to discriminate if the employee belongs to a protected class (e.g., race, sex, national origin). Instead, supervisors should create a performance log for each worker and

regularly document specific examples of performance and behavior. Such logs can also help managers write end-of-year reviews. Recent case: Sarmad Abdulnour was hired to supervise 30 employees at a Campbell’s Soup factory in Ohio. Within weeks, complaints began to roll in from his subordinates, specifically from women who claimed he “demeaned” them. The company terminated him after six months, saying he “wasn’t working out” due to “management style or personality.” An operations manager added

In this issue

Recent Ohio employment law cases and advice . . . . . . . . . . . . . . . . . . . . . . . . 1-3 National Roundup: Compliance lessons from other states . . . . . . . . . . . . . . . . . . 4 FMLA certification: Collect medical-leave proof the right way . . . . . . . . . . . . . . . 7 The Mailbag: Your questions answered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 (800) 433-0622

March 2008 Special Issue

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www.theHRSpecialist.com/OH

Performance logs: what to include … • • • • •

Deadlines met or not met. Detailed assessment of work quality. Instances of tardiness, absences. Disciplinary discussions, actions. Employee responses to problems.

… and what NOT to include • Theories about reasons for behavior. • Unsubstantiated complaints against employee. • Opinions about employee’s career path. • Details about the employee’s family, personal life, medical history or beliefs.

(Continued on page 3)

Ohio Employment Law is published by HR Specialist and is edited by Jan E. Hensel, Esq., a shareholder in the Columbus office of Buckingham, Doolittle & Burroughs, LLP. She serves as chair of the firm’s Employment & Workers’ Compensation Practice Group. Contact her at (614) 221-8448 or at jhensel@bdblaw.com.

National Institute of Business Management

Promotion

Warn managers: Any comment on race can spark lawsuit

he selection process is over, and the newly promoted employee has begun work. Now is not the time for those involved in the hiring process to pontificate on racial balance in the workplace. That’s especially true if the applicants were all qualified for the position and a member of a majority class was selected over minority candidates. Here’s why: By commenting on the racial makeup of the pool and the promoted candidate, management may inadvertently hand powerful ammunition to the candidates who didn’t get the job. When a white candidate is selected over black candidates, comments such as “We do have to maintain racial balance”

and “We could have had a larger pool of qualified whites” are direct evidence of discrimination. That shifts the burden to the employer to prove it would not have promoted the rejected candidates even if the now-presumed discrimination had not been a motivating factor. Recent case: Beverly Taylor and Rena Childress, who are black, applied for a school counselor position. Both were qualified for the job. A selection panel that included three black members ranked another black candidate as their first choice based on their interviews. Then the panel results were cancelled when another school counselor position opened up. The school system then convened a

new panel—this time with just one black member—which chose a white candidate based on another round of interviews. When Taylor and Childress complained, a supervisor commented that the district had to maintain a racial balance, but could have done more to bring in more qualified white candidates. The 6th Circuit said such comments are direct evidence of discrimination, shifting the burden of proof to the employer. It ordered a trial, and the employer will have to convince a jury it would not have hired Taylor or Childress if race were not a factor. (Taylor, et al., v. Board of Education of Memphis Schools, No. 05-6460, 6th Cir.)

LEGAL BRIEFS: Ohio Courts Alert supervisors to ADA ‘associated-with’ claims The federal Americans with Disabilities Act (ADA) makes it illegal to discriminate against employees or applicants because they “associate with” someone who is disabled. That means, for example, you can’t refuse to hire applicants for fear of their disabled child’s high health insurance costs. Most supervisors aren’t aware of this law … bring it to their attention. Recent case: A company required employees to work weekends during the holidays unless they had pre-approved leave. An employee who preferred to have weekends off to visit her disabled daughter in a nursing home took leave even though she didn’t have approval. The company fired her and she filed an ADA “associated with” lawsuit. The company won because it could prove that it fired her for missing work, not because she might be absent due to her daughter’s disability. (Overley v. Covenant Transport, No. 05-5280, 6th Cir)

Equality is crucial in discipline, investigations The mantra in real estate is “location, location, location.” When it comes to employee discipline, the mantra must always be “consistency, consistency, consistency.” Trying to “get tough” or “set an example” with an employee can quickly backfire into a retaliation lawsuit. Recent case: Terence Holbrook, a black male, was fired for allegedly pulling the fire alarm at his workplace. Surveillance tapes showed Holbrook was near the alarm, but it wasn’t clear who pulled it. The company wouldn’t let him see the tape. Holbrook filed a race-bias suit when he

Ohio Employment Law • March 2008

learned that, after an earlier false alarm, the company took the word of a white employee who denied setting it off. The Court of Appeals of Ohio concluded the state’s racial-bias law requires employers to compare how they treated two employees accused of the same rule violation when the only difference is race. If one’s word is good enough but the other’s word was treated with suspicion, the real reason might be hidden bias. (Holbrook v. LexisNexis, No. 21345, Court of Appeals of Ohio, Second Appellate Division)

Even low-level bosses can trigger harassment claims One type of illegal sexual harassment is “quid pro quo” harassment in which supervisors coerce sexual favors using the threat of job consequences. But under Ohio’s sexual harassment law, there’s no need for that supervisor to have actual hiring/firing authority over the worker. All that’s required is that the harasser held a higher position. As long as the harassed employee believed the harasser could carry out the job threats, the company would be liable. Recent case: A Burger King assistant manager allegedly demanded oral sex from one of the employees, saying he’d have her fired if she didn’t do it. In reality, the assistant manager didn’t have any firing authority. But the employee believed him and complied. She sued, alleging quid pro quo harassment. The Court of Appeals of Ohio sided with the employee, saying that if she reasonably believed the assistant manager could fire her, the company was liable for his actions. (Scarvelli v. Melmont Holding Co., No. 05CA008793, Court of Appeals of Ohio, 9th Appellate Division)

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Harassment

Even consensual affair with supervisor can spell trouble

hen a supervisor enters into a sexual relationship with a subordinate, chances are things won’t go well for the company. That’s one reason you should put in place strict limits on dating for supervisors and subordinates. You can prohibit such relationships altogether, or insist that anyone contemplating dating a subordinate must notify HR first so he or she can be removed from the supervisory role before the relationship starts. Otherwise, you risk a sexualharassment lawsuit, especially if the supervisor later punishes the subordinate.

Harassment

Recent case: Joyce White went to work part time for Copeland Corporation. Almost immediately her boss hit on her. The two then engaged in a consensual affair, and White was hired full time. Neither told the company about the relationship. Then White went back to a former boyfriend and stopped the sexual relationship with the boss. On a business trip, the boss tried to revive their relationship. But this time, he allegedly threatened her job if she didn’t have sex. She relented once, but then ended the relationship. When another supervisor eventually

fired White for poor performance, she filed a sexual-harassment lawsuit, alleging that her boss coerced her by threatening her job. The court ordered a jury trial to determine whether her account is true. If it does find her account is true, Copeland will be liable for sexual harassment even though it didn’t know about the affair. (White v. Copeland Corp., No. 3:05-404, SD OH) Final note: Remember, if a boss demands sex and threatens adverse action, it’s sexual harassment. The employer is liable, whether or not it knows about the harassment.

No federal gay-bias law, but take note of local rules

hile federal law makes it illegal to discriminate on the basis of race, gender, religion, age or disability, Congress has never explicitly said you can’t fire someone just because the person is gay. But employers and supervisors take note: That doesn’t mean it’s open season on homosexuals. For starters, many Ohio cities prohibit discrimination based on sexual orientation in private employment (see box at right). Plus, plaintiff’s lawyers are finding creative ways to file sexual-orientation lawsuits, such as privacy invasion, defamation and intentional infliction of emotional distress. The safest route: Establish a policy

that bans same-sex harassment and prohibits any discrimination or harassment based on the person’s sexual orientation or gender roles. Recent case: For Christopher Vickers, a security guard at a Lancaster, Ohio, medical center, trouble began soon after he became friends with an openly gay doctor. Vickers claimed co-workers and a supervisor began harassing him based on the assumption that Vickers was gay, too. For almost a year, Vickers kept a day-by-day account of the alleged harassment, including name calling. He filed a sex harassment suit, but the 6th Circuit tossed it out, saying sexualorientation bias isn’t illegal under

federal law. The court said it’s not illegal to harass a male homosexual who acts within established male stereotypes. Still, the court came up with a long list of the type of harassment that would be illegal, such as telling a female employee she should act less masculine. (Vickers v. Fairfield Medical Center, et al., No. 04-3776, 6th Cir.)

Bad attitude

Recording performance: 4 tips

good rule of thumb: Any statement that would be inappropriate in conversation is also inappropriate in an employee log. That includes references to an employee’s age, sex, race, disability, marital status, religion or sexual orientation. (Example: You may know that Bill’s wife just filed for divorce, but don’t suggest in the log that this is his reason for missing deadlines.) 4. Be brief, but complete. Use specific examples. Instead of saying, “Megan’s work was excellent,” say, “Megan has reduced the number of data entry errors to fewer than one per 450 records.”

(Cont. from page 1)

this ill-chosen comment: “The people of Northwest Ohio have a problem with you.” Abdulnour sued, alleging nationalorigin discrimination. The court was skeptical of the company’s reason for termination because no one documented Abdulnour’s problems as they were happening. In the end, it dismissed the case because Abdulnour couldn’t point to any specific anti-Iraqi comments. (Abdulnour v. Campbell Soup Supply Company, No. 06-4590, 6th Cir.) www.theHRSpecialist.com/OH

1. Include positive and negative behaviors. Recording only negative incidents in a performance log will bias your evaluation and appear you’re “papering” the person’s file. (Include dates and times to help identify patterns.) 2. Write observations, not assumptions. Focus on behavior directly observed. Don’t make assumptions about the reasons for the behavior or judgments about an employee’s character. (You can win dismissal of an employee’s lawsuit if the performance log shows a history of performance problems.) 3. Keep out biased language. A

Ohio cities that prohibit sexual-orientation bias Athens Cleveland Cleveland Heights

Columbus Toledo Youngstown

Source: www.lambdalegal.org

March 2008 • Ohio Employment Law

National Roundup

Compliance lessons from other states

Pay for car-pooling time? Only if you require it

Ethnic name isn’t a ‘head-start’ to bias claim

NEW MEXICO A group of gas-rig employees always drove together in a pickup because the wells were in a remote location and had limited parking. During the drive, they often discussed work issues. They filed a Fair Labor Standards Act lawsuit demanding pay for that commute. But the court said “No,” noting that all the workers were free to drive their own cars and spend their car-pooling time as they chose. So they weren’t performing “work.” (Smith, et al., v. Aztec Well Services Company, 10th Circuit) Advice: Unless you mandate that employees travel together, it’s unlikely that their travel time will be compensable work time. But if you insist that employees carpool or require them to make certain work-related stops along the way, you’ll pay.

MISSOURI Mohammed Hussein, who was born in Fiji, worked as a pilot during the Sept. 11 attacks. When flights were grounded, Hussein went to his hotel’s bar and allegedly hoisted a toast when the TV showed the collapsing Twin Towers. The airline fired him for breaking the “no drinking while in uniform” rule. He sued, arguing that his name triggered the firing. The court disagreed, saying it takes more than a name to infer that an employer fired someone based on prejudice. Employees must show some level of discriminatory intent, action or motive by the employer. (EEOC v. Trans States Airlines, 8th Circuit) Advice: Employees whose names people associate with a particular religion, origin or ethnicity can’t automatically claim that their name led to discrimination. If that were the case, anyone with such a name would have a leg up on other employees in every discrimination case.

FMLA users can shop for a second opinion IOWA An employee was fired for excessive absenteeism. She asked her doctor to certify that her absence was due to a chronic gastrointestinal disease (thereby qualifying her for FMLA leave). The doctor refused, as did a second doctor. A third doctor agreed to sign the FMLA certification. When the company refused to reinstate the woman, she filed an FMLA suit. The court let her case go to trial, saying FMLA regulations are silent about whether employees can approach multiple doctors to gain a signature on their FMLA certification form. (Cook v. Electrolux Home Products, 8th Cir.) Advice: You may not realize that employees can go “window shopping” for the best medical diagnosis. But you don’t have to blindly accept the employee’s word. You can seek a second (and, if necessary, a third) opinion on the “seriousness” of the condition. You can choose the doctor for the second and third assessments, but you must pay for those visits.

Returning soldiers are NOT at-will employees VIRGINIA Soon after Cheryl Francis, a military reservist, returned to work after a military deployment, her employer fired her for tardiness and rudeness. She shot off a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), alleging the company didn’t have just cause for its actions. The appeals court disagreed, concluding that the firing reasons rose to the level of “just cause.” (Francis v. Booz Allen Hamilton, 4th Cir.) Advice: If you plan to terminate an employee who recently returned from military duty, you need a clear, businessbased reason for your action. USERRA says you can’t fall back on “at-will status” as a firing reason. For how long? USERRA says returning soldiers who are gone more than 180 days receive this extra protection for one year. Those gone for 30 to 180 days are given six months’ worth of extra protection.

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Editor: Jan E. Hensel, Esq., Buckingham, Doolittle & Burroughs, LLP, (614) 221-8448 Contributing Editor: Anniken Davenport, Esq., HROHeditor@NIBM.net Editorial Director: Patrick DiDomenico Senior Editor: John Wilcox, (703) 905-4506, jwilcox@NIBM.net Copy Editors: Nancy Baldino, Cal Butera

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Ohio Employment Law • March 2008

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Employment Law News Sara Lee’s lesson: Don’t ask staff to waive EEOC-complaint rights When Sara Lee laid off employees in its Blue Ash facility, the company offered departing employees severance pay. In exchange, the company required workers to sign an agreement giving up their rights to file job-discrimination complaints with the EEOC. The EEOC quickly filed suit against the company in U.S. District Court in Cincinnati, claiming the waiver violated federal discrimination law. The EEOC is seeking back and future wages, plus punitive damages for affected employees. “The right to file a charge is sacrosanct,” said Laurie Young, the EEOC’s regional attorney in Indianapolis. “Any policy that prohibits workers from exercising their statutory rights to complain of discrimination will be vigorously prosecuted.” Bottom line: You can ask employees to waive their rights to file a lawsuit or to personally collect monetary damages. But prohibiting employees from filing EEOC charges to inform the agency of possible discrimination interferes with the public interest and isn’t legal.

Wilmington temp-firm owners face jail time for hiring illegals Officials with Garcia Labor Co., a Wilmington temporary staffing agency, pleaded guilty to hiring more than 1,000 illegal immigrants to sort air freight for ABX Air. The owners forfeited $12 million in proceeds, and face prison terms of up to 10 years and fines of up to $250,000. Garcia Labor employed the workers, mostly Mexicans, by using fraudulent Social Security numbers and submitting forged employment documents to ABX Air. The company also provided housing, transportation and checkcashing services for the workers. Employers take note: Homeland Security is stepping up its efforts to ensure that employers check I-9 documents. The agency is becoming more aggressive about so-called “No-Match” letters, which are issued when Social Security numbers provided by employees don’t match names in national databases. www.theHRSpecialist.com/OH

Homeland Security has proposed regulations that provide guidelines for employers to legally handle such NoMatch letters. For more details, go to www.dhs.gov and put “No-Match letters” into the search box.

Ohio company learns legal risk of tolerating Web-porn viewing More than two dozen sexual harassment lawsuits were filed against shipping company C.H. Robinson last year. In the most recent suit filed, a female worker claimed the work environment was hostile from day one, when she was told the branch manager hired her because he “couldn’t stand to look at the other girl” who’d applied. It went downhill from there. The woman alleges that male workers continually made sexual comments and derogatory remarks about women, and viewed online pornography at work. The company settled two class-action sexual discrimination lawsuits for $15 million. Plaintiffs in those suits showed that Robinson employees visited sexually explicit Web sites more than 10,000 times in a span of two months. The company promised to strengthen its existing harassment policies following those suits.

The decree applies only to state government employees, but it appears the federal courts are poised to broaden the rights of religious objectors in the workplace.

As ye ask, so shall ye receive It’s OK to pay employees more if they negotiate harder during an interview, an Ohio court recently affirmed in a lawsuit against the Grande Pointe residential care facility in Richmond Heights. The facility won most counts of a reverse-discrimination case brought by a man who found he was paid less than a woman in a similar, but not identical, job. The court also affirmed Grande Pointe’s right to pay a higher wage to combat higher turnover in the woman’s position. Grande Pointe could not get summary judgment on the man’s claim that he was passed over for a position awarded to a woman. The company said the man slouched during his interview, didn’t take it seriously and refused to take a computer exam. The employee had a completely different version of the interview. In the absence of proof, that complaint will proceed to trial.

Strange but true

Court: Worker objecting to union policy can divert dues to charity When the Ohio Environmental Protection Agency unionized, one of its employees requested an exemption from paying dues. He said the union’s stance on homosexual marriage and abortion violated his Presbyterian religious beliefs. He requested that his dues go instead to charity, an option granted to Mennonites and Seventh Day Adventists under Ohio labor law and the National Labor Relations Act. After an arbitration panel refused his request, the EEOC filed a religious discrimination lawsuit on his behalf against the state, the EPA and the Ohio Civil Service Employees Association. The parties settled, and a resulting consent decree granted charitable giving options to all state employees who sincerely object to union policies.

Ohio’s Civil Rights office: defender of houseplants A U.S. District Court ruled that the Ohio Civil Rights Commission discriminated against one of its employees who struggled with a disabling lung disease. The employee, a civil-rights investigator, experienced breathing problems in her office, which was so cold that she wore an overcoat year-round. The agency provided a space heater but refused to move her, despite the fact that climate-controlled offices were available. One office, in fact, was being used to grow houseplants. When the employee complained, she claimed she was given more work and harassed. Finally, she quit and sued. A jury awarded $58,000 in back pay and another $10,000 in damages. The Civil Rights Commission plans to appeal.

March 2008 • Ohio Employment Law

In the Spotlight

by Jan E. Hensel, Esq., Buckingham, Doolittle & Burroughs, LLP, Columbus

Must you pay disability to workers hurt while breaking safety rules? T Gross II: What it means

he Ohio Supreme Court has substantially limited the “voluntary abandonment” doctrine in claims for temporary total disability compensation under the Ohio Workers’ Compensation Act. That means employers may have to pay temporary total disability payments to employees even if they were injured while breaking safety rules.

An injury, followed by firing David Gross, a 16-year-old fast-food worker employed by KFC, suffered serious burns after being sprayed with boiling water he had heated in a pressure cooker. Gross’s boss and coworkers had warned him several times not to put water in the pressure cooker to clean it. The employee manual and a label on the pressure cooker also noted the danger. Because his injuries occurred on the job, Gross applied for and received temporary total disability (TTD) compensation. TTD benefits are intended to replace wages lost by an employee who is unable to work because of a workplace injury. After extensive investigation into the incident that led to Gross’s injuries, KFC terminated him for violating its work rules. The company then filed a motion with the state Industrial Commission (IC) to terminate Gross’s TTD benefits. The IC granted KFC’s motion, ruling that because Gross had knowingly violated a workplace safety rule for which he previously had been warned, he voluntarily abandoned his employment and was no longer eligible for TTD benefits. In other words, Gross lost wages not because of his injury, but because he violated a workplace safety rule. Gross appealed this decision, eventually to the Ohio Supreme Court.

Voluntary abandonment doctrine The Ohio Supreme Court recognized the voluntary abandonment doctrine in the 1985 case, State ex rel. Jones and Laughlin Steel Corp. v. Indus. 6

Ohio Employment Law • March 2008

The Gross II decision leaves employers vulnerable to having to make temporary total disability payments to workers who were terminated after injuring themselves on the job. In light of the decision: • Be more diligent than ever to consistently enforce your safety rules • Document all disciplinary actions arising from violations of those rules so you can establish that you terminated an employee because of a rules violation, not because of the employee’s injury • Before terminating an employee who was injured due to his own work rule violation, consult an attorney.

Comm. In Jones, the court was asked to decide if a claimant was entitled to continued TTD benefits after he permanently retired from the work force. The Jones court said no—when Jones retired, his disability ceased to be the reason for his loss of earnings. His retirement was. The court held that “where the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability benefits because it is his own action, rather than the industrial injury, which prevents his returning to such former employment.” Another state Supreme Court case —State ex rel. Louisiana Pacific— addressed voluntary abandonment in the context of a work rule violation. The court reasoned that discharge resulted from behavior that the employee willingly undertook, making it voluntary in nature. The court held that termination for violation of a work rule will be considered a voluntary abandonment of employment where the termination was the result of violating a written work rule or policy that: • Clearly defined the prohibited conduct

• Had been previously identified by the employer as a dischargeable offense • Was known or should have been known by the employee. The court applied the Louisiana Pacific rules to the Gross case, holding that he voluntarily engaged in the conduct that led to his termination, thus voluntarily abandoning his employment.

Gross II The initial Gross decision (we’ll call it Gross I) met with fierce criticism from injured workers and their attorneys. Eventually, the case wound its way back to the Supreme Court (Gross II). On reconsideration, Gross focused his argument on the contention that workers’ compensation in Ohio is designed to be a no-fault system. He argued that, because he was terminated for conduct that directly resulted in his injury, the Gross I decision had added an element of fault to the determination of whether an employee was eligible to receive TTD. Because the termination letter issued by KFC stated that the termination was for violation of a safety rule, which resulted in his injury, the Gross II court held that termination was “causally related” to the claimant’s injury, and therefore was not the result of a voluntary act of the employee. The Gross II court emphasized that its decision was limited to the facts presented. However, based on the language of the decision, it appears that employers may be prohibited as a matter of law from denying TTD benefits to employees who are injured in the course of misconduct.

Read the current issue of Ohio Employment Law and more advice online at www.theHRSpecialist.com (800) 433-0622

Nuts & Bolts

FMLA certification: Collect medical-leave proof the right way THE LAW The federal Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for their own “serious health condition,” or to care for a parent, spouse or child with a serious condition. To help determine whether an ailment rises to the level of a “serious condition,” you can require employees to provide an FMLA medical certification. Essentially, that’s a doctor’s note that lays out the facts of the ailment, how long it’s likely to last and more. (To obtain a sample form, see box below.) In certain cases, you can ask for recertification to verify that the person continues to need FMLA leave. The law doesn’t require employers to obtain medical certification from employees who take FMLA leave. In fact, you can choose to ask for it in certain situations but not others. Still, it’s best to set a consistent practice regarding when you require FMLA medical certifications and to treat all employees seeking such leave in the same way.

WHAT’S NEW In recent years, employers have faced a growing problem of FMLA fraud. While employees are legally allowed to take FMLA leave in small bites (a day or even an hour or two), employees are increasingly using intermittent FMLA leave

Online resources FMLA certification • Download a sample medical certification form (Form WH-0380) from the U.S. Labor Department at www.dol.gov/esa/ regs/compliance/whd/fmla/wh380.pdf. (Using the form is optional, but it’s a good idea to ensure compliance.) • Access free white papers from Ohio Employment Law, including How to Wipe Out Fraud and Abuse Under FMLA, at www.theHRSpecialist.com/OH.

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in a noticeable pattern of Friday and Monday absences. Can you ask for FMLA recertification when you notice such patterns? Thankfully, yes, according to a U.S. Labor Department opinion letter. The FMLA lets you request recertification “on a reasonable basis.” If no minimum time is specified on the medical certification form, you can typically request recertification no more than once every 30 days, and only in connection with an employee’s absence. But if you receive information that makes you suspect FMLA-leave abuse, you can ask for recertification more frequently than every 30 days. Fortunately, the Labor Department letter said that a pattern of Friday/Monday absences counts as information that “casts doubt upon the employee’s stated reason for the absence.” That means you can seek recertification more frequently than every 30 days, so long as the request is made in connection with an absence.

HOW TO COMPLY Your medical certification request must relate only to the serious health condition that’s causing the current need for leave. In other words, you can’t ask for information about the employee’s general health or any other medical conditions. You should ask when the serious health condition began, its likely duration, appropriate medical facts regarding the condition, whether there’s a need for intermittent leave and a statement that the employee is unable to work (see list above right). After you request certification, you must give employees at least 15 calendar days to submit the paperwork to you. While it’s not your responsibility to hound employees to submit the certification on time, courts will frown on companies that deny FMLA leave simply because the employee submits his certification form on the 16th day. So, if an employee’s certification is missing or lacking information, notify him or her of the problem, and give the

FMLA medical certification: What can you request? ✓ Employee’s name. ✓ Patient’s name (if other than employee). ✓ Type of serious health condition. ✓ Medical facts supporting certification. ✓ Date the serious health condition began. ✓ Likely duration. ✓ Facts concerning need for reduced/intermittent leave. ✓ Regimen of treatment. ✓ Whether the employee can perform work of any kind or is unable to perform any one or more of the job’s essential functions. ✓ Whether the employee will provide direct care or psychological comfort if the FMLA leave is for a relative with a serious condition. ✓ Signature of health care provider and date. ✓ Signature by employee and date.

person a reasonable amount of time to correct it. If the employee never provides the certification, you can deny the request. If you doubt the need for leave, you have the right to investigate the medical certification. For example, a health care provider representing your company can call the employee’s physician to clarify and confirm the medical certification (if the employee gives you permission). But you can’t request additional information from the health care provider. If you’re still not convinced, you also can require and pay for a second opinion. You can use an independent doctor that you select, but the person can’t regularly work for your company. If the two opinions conflict, you can pay for a third and final binding medical opinion.

Next Nuts & Bolts: Personnel files Coming soon: Attendance policies March 2008 • Ohio Employment Law

by Jan Hensel, Buckingham, Doolittle & Burroughs, LLP, Columbus

Must we deliver final paychecks at termination?

When one of our employees was fired, he demanded his paycheck on that same day. Are we required to deliver final paychecks to employees on the same day they quit or are terminated? — D.G. Ohio has no law requiring you to pay employees their wages on their final day of work. The only Ohio statute addressing the time period for wage payment requires semimonthly payment. It states that organizations: “Shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month … and shall, on or before the 15th day of each month, pay such employees the wages earned by them the last half of the preceding calendar month. This section does not prohibit the daily or weekly payment of wages, the use of a longer time that is customary to a given trade, profession or occupation, or establishment of a different time lapse by written contract.” (Ohio Revised Code § 4113.15) Thus, while it is common for employees to demand their paychecks upon termination, the statutory provision allows employers to pay final wages by the next regularly scheduled payday, as long as the paydays are scheduled at least semimonthly.

Can we prohibit workers from comparing paychecks?

It has always been a rule in our workplace that employees’ individual compensation information is to be kept confidential and is not to be discussed with coworkers. I recently had to write up one of my employees for violating this policy. That employee told me that my rule prohibiting discussion of wage information is illegal. Is this true? The National Labor Relations Act (NLRA) prohibits employer interference with employees’ rights to discuss the terms and conditions of their employment with others. The National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, has long taken the position that employment rules that prohibit the discussion of wage information have a “chilling effect” on employees’ rights under the NLRA and thus violate the act. In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit held that a policy that prohibits employees from discussing their compensation violates the NLRA even if the employer does not enforce it. So your employee is correct—the NLRA prohibits employers from implementing workplace rules that forbid employees from discussing wage information. This is the case even if the employees are not represented by a union.

Are waivers a cure-all for employee lawsuits?

Is obtaining a legal release from an employee in exchange for severance pay guaranteed to prevent any legal action by that person? — J.S. As recent court decisions show, employers must exercise extreme caution when obtaining and enforcing releases

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Ohio Employment Law • March 2008

from their employees. For the release to be valid, it must be knowing and voluntary. If the release includes a waiver of age-discrimination claims, the document must contain explicit language that includes advice to consult with an attorney, plus you must give 21 days to consider the agreement and seven more days to rescind the waiver after signing. Furthermore, federal rules say your waiver can’t require employees to waive their rights to file a discrimination charge with the EEOC. Courts routinely find such waivers to be unenforceable. The EEOC goes even further, however, and says any EEOC-complaint waivers have a chilling effect on employee’s pursuit of such rights and so they’re considered “retaliatory.” For these reasons, take great care when obtaining waivers of employee claims as part of a negotiated severance package. Always consult with an expert on such agreements before drawing one up.

How does FMLA leave overlap with paid vacation, sick and personal leave?

Our employee handbook provides that employees who take FMLA leave must first use any available paid-leave time, including vacation, sick time and personal time, as part of their FMLA leave. I have recently heard that there may be limitations on an employer’s ability to require an employee to substitute his paidleave time for unpaid FMLA leave. Can you clarify this? An employer may require an employee to use available vacation leave, personal leave or family leave for FMLA leave where the leave is being taken for the birth or adoption of a child or to care for a family member with a serious health condition. An employer may also require an employee to use any accrued medical or sick leave, in addition to vacation, personal or family leave, for the employee’s own serious medical condition or to care for a family member with a serious health condition. Thus, an employer can only compel the use of paid sick time when the leave involves the employee’s own, or a family member’s, serious health condition. The regulations interpreting the FMLA specifically provide that when the employee is receiving state workers’ compensation benefits while on FMLA leave, the employer cannot require the employee to use his or her available paid-leave time. Furthermore, employers cannot require employees to substitute available paid-leave time for the unpaid FMLA leave if the leave is covered by payments from plans covering temporary disabilities.

Jan E. Hensel, Esq. is a shareholder in the Columbus office of Buckingham, Doolittle & Burroughs, LLP. She serves as chair of the firm’s Employment & Workers’ Compensation Practice Group. Contact her at (614) 221-8448 or at jhensel@bdblaw.com. To submit your Mailbag question to Ohio Employment Law, e-mail it to HROHeditor@NIBM.net or fax it to (703) 905-8042. (800) 433-0622

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