Professional Service Agreement

Week In Review

October 05, 2015

Requesting FMLA leave does not give an employee greater protection against firing for reasons unrelated to FMLA
A federal appeals court has determined that a customer service representative who was fired for performance issues during the same period of time in which she requested leave under the Family and Medical Leave Act (FMLA) to care for her child could not support her FMLA discrimination claim. The court’s dismissal of the claim was based on the fact that the employee was unable to show that the reason set forth by the company for her discharge — multiple shipping errors within a 17 day period – was a pretext for discriminatory treatment based on her request for leave. One critical point raised by the court was that the company’s explanation for the employee’s firing remained constant throughout the process. Because the company documented the performance issues, and remained constant in its assertion of those issues as the basis for the employee’s firing, it was able to overcome the employee’s pretext argument.
Requesting FMLA leave does not give an employee greater protection against firing for reasons unrelated to FMLA. However, when an adverse employment action is considered against an employee who ultimately may assert a legally protected status — including FMLA protection — attention should be paid to the existence of supporting documentation, the objective factual background, and the consistent application of discipline.

NLRB holds restrictions on employee communications during non-working time violate the NLRA
The National Labor Relations Board (NLRB) has held that certain provisions of a media giant’s Code of Conduct unlawfully interfered with the right of employees to engage in concerted activity in violation of the National Labor Relations Act (NLRA). The NLRB held that the restrictions relating to “solicitation and fundraising,” which prohibited employees from using the company’s communications system for distributing materials to one another even during non-working time, violated the NLRA. The NLRB also held that the “prohibited activities” section also violated the NLRA; this section prohibited employees from using company email to communicate with each other on behalf of outside organizations in ways that might cause the company “embarrassment.” In the decision, the NLRB stated that employers should now be well aware that they cannot completely ban all employee use of company email systems for purposes that, in management’s view, are not necessarily conducive to the organization’s business goals.

EEOC sues retailer for disability bias
According to a complaint filed by the EEOC last week, a Texas jewelry retailer allegedly refused to provide a reasonable accommodation to an employee with degenerative disc disease and fibromyalgia, and then terminated her. The employee had recently taken medical leave and returned to work with restrictions that she take sitting breaks. The employee notified her employer that she needed to sit for 15 minutes every hour as an accommodation for her disability. The employer denied the request, and insisted that she stand her entire work shift. When the employee did not, she was fired. When a qualified employee with a disability is ready and willing to work, the employer has a legal duty to provide a reasonable accommodation to make that employment possible unless the employer can show undue hardship.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at