AVOIDING MISTAKES THAT MAKE AN EMPLOYEE’S LAWYER SMILE :)

Benjamin H. Yormak, Esq.Yormak Employment & Disability Law

9990 Coconut RoadBonita Springs, Florida 34135

byormak@yormaklaw.comTelephone: 239.985.9691

www.yormaklaw.com

April 8, 2015

What will generally make me smile?

• My Family;• The State of Maine;• My New England sports teams;• Adverse employment actions;• Statutorily protected expression;

&• Close temporal proximity;• Causal connections;• Misclassifications;• Direct evidence (a Plaintiff’slawyer has dreams too…)

BUT Don’t Believe Everything You Hear: “At-Will” Does NOT

Mean Carte Blanche to Terminate Problem Employees!

GENERAL RULE: any employee may be discharged by the employer, or may leave the job, for any reason whatsoever, or for no reason. In other words, an employer in Florida may hire and fire any employee at any time for any reason. It doesn’t matter if there is no reason, a bad reason, a good reason, or just the result of a whimsical decision. Likewise, the employee is free to quit a job at any time without any reason and without any notice.

“At Will” Employment

Why You Do Not Want Your Employee To Call Someone Like Me: We Look at the Employee’s Whole Employment!

Sticks and Stones May Break Your Bones… But Retaliation Will Come Back to Bite You!

So What is Retaliation?EEOC Definition: “An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.”

Examples of adverse actions include:

a) employment actions such as termination, refusal to hire, and denial of promotion,b) other actions affecting employment such as threats, unjustified negative

evaluations, unjustified negative references, or increased surveillance, and; c) any other action such as an assault or unfounded civil or criminal charges that are

likely to deter reasonable people from pursuing their rights.

**Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's current employer to retaliate against him for pursuing an EEO charge against a former employer.**

While YOU may think terminating a complaining employee is “solving the problem” or “returning

harmony to the workplace”… Do you think that the employee sees it that way?

FACT: Almost every EEOC Charge or lawsuit I file ends up having a retaliation component!

Another fact: An employee does not have to complain about behavior that rises to the level of an independent cause of action and does not even have to be right about the facts they complain of in order to have engaged in protected expression!

… and I can argue that just about anything is protected expression so long as it even remotely concerns a law, rule or regulation!

The Employment Law Trinity:The Intersection of the ADA, FMLA and Worker’s Compensation

3 Statutes for the Savvy Employee’s Lawyer to Choose From!

The ADAAA- Are you Covered?• ADAAA prohibits all employers with 15 or more employees from

discriminating against qualified disabled individuals with regard to any term, condition or privilege of employment.

• ADAAA protects any qualified individual with a disability, which means an individual with a disability who, with or without reasonable accommodation, can perform the “essential functions” of the employment held or desired.

• ADAAA also protects against associational discrimination for individuals known to be associated with disabled people. Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482 (6th Cir. 2011)

NOTE for state employers: ADAAA not applicable to state government. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 536, 368 (2001)(somehow Congress failed to properly abrogate sovereign immunity under the ADAAA… “close enough for government work” rationale has not passed muster in Federal Court!)

ADAAA- Is Your Employee Disabled?

• The Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) was signed on September 25, 2008, with the express intent of broadening coverage under the ADA.

• The term “disability” means, “with respect to an individual– (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of

• such an impairment; or (C) being regarded as having such an impairment. An individual only has to meet one of the three prongs of the definition of “disability.”

ADAAA- How Can That Darn Employee Actually Be Disabled?!

• The ADAAA expands the definition of “major life activities” by including non-exhaustive lists of activities such as walking, as well as activities that have not necessarily been recognized as major life activities, such as reading, bending, and communicating; and major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”).

– So what does this mean in reality? Pretty much anyone that comes into my office has a disability- that means, I can likely get just about any employee of yours to be covered by the ADAAA!

• But the employee must still be able to perform the essential functions of their position with or without a reasonable accommodation.

• That means that defining the “essential functions” of jobs/positions is key. Be sloppy or general and I can pick it apart.

The ADAAA- Who is a “Qualified Individual” Anyway?

• That can be about as easy to decipher as who a “reasonable person” is…

• A “qualified individual” with a disability is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.

• Courts make a two-part inquiry in determining whether a plaintiff is a “qualified individual.”

– First, an individual must satisfy the employer’s legitimate prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, and licenses. Second, the individual must be able to perform the position’s essential functions with or without an accommodation. Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 863-65 (7th Cir. 2005)

– A job function is essential if (i) the position exists to perform that function; (ii) few employees are available to perform that function, or (iii) the function is highly specialized and the employee was hired for his or her expertise to perform that function. Essential job functions may include things such as the ability to work overtime under certain circumstances. See, e.g., EEOC v. AT&T Mobility Servs. LLC, 2011 WL 6309449 (E.D. Mich. Dec. 15, 2011)

• Side Note: The fact that an individual has asserted in an application for Social Security disability benefits that she is disabled from engaging in gainful employment is not an automatic bar to an ADA claim, because the Social Security definition of disability does not take into account the possibility of a reasonable accommodation which would allow the individual to work. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999).

The ADAAA & Reasonable Accommodation- We Gotta Do What For this Clown?!

• Reasonable Accommodation defined as:

– “making existing facilities used by employeesreadily accessible to and usable by individuals with disabilities” and;

– “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

Yup, You Probably Do Have to Do These Things for “That Clown”…

- Work schedule adjustments (start times)- Telecommuting- Medication breaks- Reassignment to an open position (applies only to employees, not applicants)- Unpaid leave- Unpaid leave may be an appropriate accommodation when an individual expects to return to work after getting treatment for a disability, recovering from an illness, or taking some other action in connection with his/her disability. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718 (6th Cir. 2000)- Leaves of up to twelve weeks are generally considered reasonable. Smith v. Diffee Ford-Lincoln-Mercury, 298 F.3d 955 (10th Cir. 2002)- courts generally agree that leaves extending beyond one year are not required, although they will still make a fact specific inquiry as to reasonableness. (Markwart v. UPS)- Indefinite leave is not required. “[A] request for indefinite leave cannot constitute ‘reasonable’ accommodation” because such a request “does not allow the employee to perform the essential functions of the job in the near future.” Cisneros v. Wilson, 226 F.3d 1113 (10th Cir. 2000)- Light Duty is not required under the ADA.BUT… what if the disability involves a workplace injury?

Oh C’mon! We Don’t Have to Do THAT Do we???• An accommodation is not required where it would cause “undue hardship” to the employer.

BUT:

1. Don’t think that an inconvenience is an unreasonable hardship. If you don't work with my client and behave in an authoritarian manner, this an almost certain way to become involved in a lawsuit because…

2. An employee has a duty to request an accommodation, which then triggers the employer’s obligation to enter into an interactive process to determine a reasonable accommodation.

3. And beware: **even where the employee has not made a request, the employer may still have an obligation to engage in an interactive process if the employer knows of an employee’s disability and/or need for accommodation or the disability affects the employee’s ability to request an accommodation.** See, e.g., Stephenson v. United Airlines, 2001 WL 580459 (9th Cir. May 30, 2001)

Worker’s Compensation Interplay

• And if the employee’s injury/disability is work related…?– Employer must provide light duty to an employee

with a worker’s compensation claim if such light duty is available.

– Employer does not need to create light duty if none is available.

So the Employee Needs FMLA Leave too?

Your first thoughts might be…

Don’t be Dismissive: The FMLA Can Apply too!

• Coverage Generally:– It doesn't matter if it is a disability or a workplace

injury!– The FMLA likely applies to you as a Covered

Employer if you have 50 or more employees.– The FMLA applies to a Covered Employee if they

have had 12 months of service, worked 1,250 hours and the Employee works within 75 miles of where at least 50 employees of employer.

What Can Entitle an Employee to FMLA Leave

“Serious health condition” of employee or close family member- this does not have to be a disability

under the ADAAA or a workplace injury in order to be covered.

Examples of Situations That Should Trigger FMLA Notices:

• An overnight stay in a hospital or other medical care facility;

• Conditions that incapacitate the employee or their close family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);

• Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and

• Pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

FMLA- They Get HOW MUCH TIME OFF?!

- Regular employees can take up to 12 weeks of unpaid FMLA;

But if the leave is regarding care for a service member, they can take up to 26 weeks!

Don’t forget: Intermittent leave is available too.

Calculating intermittent leave time:

- a week is measured by the employee’s normal workweek (thus, a full-time employee who normally works a five- day/week is entitled to 60 days of leave);

- a day is measured by an employee’s normal workday (thus, an employee who normally works 8-hour days will be charged with one day after an 8-hour leave)

- if the employee’s schedule varies, a “normal workweek” is the average of hours worked per week over the 12 weeks prior to the start of the FMLA leave.

Walking the Tightrope: Returning the Employee to Work

• Employer may require certification prior to returning employee to work.

• Any return-to-work physical must be job related (as required under the Americans with Disabilities Act)

• Must be returned to same or similar position with same pay– Same benefits– Same seniority– Same working conditions

• Restoration under the FMLA is contingent upon employee’s continued ability to perform all of the essential functions of the job.

And When You Want to Fire the Employee Who Then Takes FMLA Leave?

• Terminating an employee who is on FMLA leave (or who informs HR of the need for leave) is just begging for a lawsuit;

• Remember “temporal proximity”?– Even if you think the termination was justified, firing an

employee on leave will present the following problems:• A lawsuit that will not be subject to immediate dismissal (ie.

you will pay a ton of money to defend it);• Prima facie evidence of retaliation due to close temporal

proximity, which establishes a causal connection between the leave and the termination (ie. summary judgment is unlikely and the case will go to trial; you will continue hemorrhaging attorney fees), and;

• Your counsel will have a devil of a time trying to convince a jury that the employee’s leave had nothing to do with their termination…

Special Problems: Exhaustion of FMLA and the Inability to Perform the Essential Functions

• The maximum annual benefit under the FMLA is twelve weeks of unpaid leave, see 29 U.S.C. § 2612(a)(1), whereas reasonable accommodations under the ADA can last for years on end. Navarro v. Pfizer Corp., 261 F.3d 90, 102 (1st Cir. P.R. 2001).

• After the FMLA expires, the employee must return to work BUT then the ADA kicks in. So while terminating an employee after 12 weeks because they cannot return to work may not violate the FMLA, it very well could violate the ADAAA.

• Remember that interactive process? Yup, after the 12 weeks, you will need to engage in that again to determine what reasonable accommodations may be necessary.

• Keep in mind that additional leave may be a reasonable accommodation. This is particularly so when the employee is non-essential (ie. receptionist, call center staff, shift workers etc.)

Some Additional Practical Tips• If you are not sure of what to do, an ounce of prevention is worth a pound of cure. Call your

counsel- it will be well worth the small fee to do so. • Grant the employee unpaid leave once the FMLA expires: it costs nearly nothing to do but

could cost you dearly if you deny it without being able to prove additional leave would be an undue hardship under the ADAAA.

• Don’t fire someone on FMLA leave or who has just notified you of their need for leave- again, unpaid leave costs nearly nothing. If this is an employee you would want to fire regardless of medical leave, don’t play into the employee’s hands by firing them while on leave.

• If you have a question about what kind of leave the employee might need, give them FMLA forms (preferably by email so you can document that you did so)- oh, and don’t try to use your own FMLA forms! Use the Dep’t of Labor forms that are FREE on the DoL’s website- they have everything you need in the form already done for you.

• Document, document, document! Document everything, especially anything to do with granting reasonable accommodation or FMLA leave.

• And the more you document poor performance and/or misconduct, the tougher it is for an employee to prove pretext (ie. that the reason you fired them was actually an illegal reason!).– “What was that? No prior discipline at all? Great performance review? Terminated suddenly?

Helloooooooo lawsuit!”

FLSA Issues: W2 or 1099?

What is an Independent Contractor Anyway?Economic Realities Test

• The extent to which the worker's services are an integral part of the employer's business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business' overall process of production? Does the worker supervise any of the company's employees?);

• The permanency of the relationship (example: How long has the worker worked for the same company?);

• The amount of the worker's investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?);

• The nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?);

• The worker's opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and

• The level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?).

Special FLSA IC Problems

My Favorite!

Requiring independent contractors to sign non-competes may contribute to a finding that they were misclassified employees entitled to overtime! – Not only that, this misclassification could expose

the Employer to laws like the ADA, FMLA, ADEA, Title VII, FCRA, NLRA, OSHA, Florida’s Whistleblower Statutes, False Claims Act, in addition to IRS problems regarding payroll taxes.

• In Perez v. Super Maid, LLC, No. 11-C-07485 (N.D. Ill. July 14, 2014), the court granted a motion for summary judgment by the U.S. Department of Labor alleging that Super Maid violated the Fair Labor Standards Act (FLSA) by treating its maids as independent contractors. The court entered judgment against the defendants in the amount of $184,505.26 and issued an injunction prohibiting defendants from violating the FLSA in the future.– The Court focused on the Employer’s requirement that applicants

for jobs with Super Maid were required to sign a three-year non-compete prohibiting them from accepting direct employment with any of Super Maid’s customers.

– The Court noted that the notion that employers could designate maids as independent contractors – who would normally be free to utilize their skills in an open market – while simultaneously restricting that very ability with a non-compete, had been rejected.

An Emerging Issue: Avoiding Legal Penalties with LGBT Issues

Sexuality is NOT a Protected Class…

• State and federal laws – including Title VII of the Civil Rights Act of 1964 (Title VII) – prohibit discrimination in employment decisions like hiring and firing based on race, religion, color, sex, and national origin.

• While Title VII doesn’t list sexual orientation as a protected class, an increasing number of local and state governments are passing laws and ordinances that protect homosexuals from workplace discrimination and harassment.

Interesting Statistics

1. In states that have anti-discrimination policies in place, LGBT complaints are equivalent to the number of complaints filed based on sex and fewer than the number of complaints filed based on race.

2. The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government.

Sexuality In Hiring- One source of evidence for hiring discrimination against openly gay men comes

from a field experiment that sent two fictitious but realistic resumes to roughly 1,700 entry-level job openings.

- The two resumes were very similar in terms of the applicant's qualifications, but one resume for each opening mentioned that the applicant had been part of a gay organization in college.

- The results showed that applicants without the gay signal had an 11.5 percent chance of being called for an interview; openly gay applicants had only a 7.2 percent chance. The callback gap varied widely according to the location of the job. Most of the overall gap detected in the study was driven by the Southern and Midwestern states in the sample – Texas, Florida, and Ohio.

- The Western and Northeastern states in the sample (California, Nevada, Pennsylvania, and New York) had only small and statistically insignificant callback gaps. Tilcsik, A. (2011). Pride and prejudice: Employment discrimination against openly gay men in the United States. American Journal of Sociology, 117, 586–626.

Obama’s Executive Order

• On July 21, 2014, President Obama expanded anti- discrimination protections to federal employees and federal contractors through an executive order that prohibits discrimination on the basis of sexual orientation or gender identity.

• The recent executive order directs the Labor Department to create regulations within 90 days to implement the expanded prohibitions against gender identity and sexual orientation discrimination. The EEOC is empowered to create regulations governing the federal workplace through Section 4 of Executive Order 11478.

EEOC Making Gender a Point of Emphasis

• In Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC determined that a transgender woman who was denied employment because she was transgender created a cause of action under the federal workplace anti-discrimination laws. In Macy, the Commission cited Price Waterhouse v. Hopkins in ruling that transgender discrimination is in violation of the law because the employer is “making a gender based evaluation” about whether the employee’s gender conforms to their biological sex.

• Macy also approvingly cites several circuit courts which determined that transgender discrimination is actionable, including Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004); Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011); and Schwenck v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000).

EEOC Expansion Con’t

• The Commission also relied on Hopkins in permitting a claim of harassment on the basis of sexual orientation to proceed in Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011).– EEOC determined that the alleged harasser’s comments about the

victim’s sexual orientation could be fairly read as implicating gender stereotypes about the sexual pre-dispositions of men.

• EEOC’s 2013-2016 Strategic Enforcement Plan expressly includes a provision calling for the Commission to address emerging and developing issues, including the coverage of gay, lesbian, and transgender employees under Title VII.

How We Craft LGBT Discrimination to Fall Within Title VII Gender Discrimination

Legal Creativity: Making a Case for Title VII Protections

• “Failure to conform to gender stereotypes”

• EEOC v. Boh Brothers Construction Co., No. 11-30770 (5th Cir. Sept. 27, 2013)

– EEOC has historically paid particular interest to cases involving gender stereotypes, with various degrees of success. As many courts have observed, harassment based on a perceived failure to conform with gender stereotypes is not necessarily harassment “because of sex” under Title VII. But in a significant win for the EEOC, the Firth Circuit recently held in Boh Brothers Construction Co., by an en banc majority of ten judges, that harassment based on gender-stereotypes can be actionable harassment “because of sex” under Title VII.

The Boh Brothers Case• An ironworker on a bridge-maintenance crew was subjected to “almost-daily verbal

and physical harassment because [he] did not conform to [the supervisor’s] view of how a man should act.” Among other things, his supervisor: (1) ridiculed him because he used baby wipes instead of traditional toilet paper; (2) called him “pu–y,” “princess,” and “fa–ot”; (3) stood behind him and simulated intercourse; (4) exposed his penis while waving and smiling; and (5) joked about forcing oral sex upon him. As the Fifth Circuit observed, the EEOC’s evidence demonstrated the supervisor thought the victim was not a “manly-enough man” and fell outside the supervisor’s “manly-man stereotype.”

• Thus, the EEOC could prove that the same-sex harassment was “because of sex” by presenting evidence that the harassment was based on a perceived lack of conformity with gender stereotypes.

– Notably, the EEOC was not required to show that the victim was not, in fact, “manly.” Rather, it was enough to show that the harasser admitted his epithets were directed at the victim’s masculinity.

A Step Backwards? The Possible & Real Effects of Hobby Lobby in Employment Law

The Holding: Burwell v. Hobby Lobby

• The Court held that the purpose of extending rights to corporations is to protect the rights of shareholders, officers, and employees. It said that "allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.”

• A landmark decision by the United States Supreme Court allowing closely held for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law's interest.

• It is the first time that the court has recognized a for-profit corporation's claim of

religious belief… but it is limited to closely held corporations.

• For such companies, the Court's conservative majority directly struck down the contraceptive mandate, a regulation adopted by the US Department of Health and Human Services (HHS) under the Affordable Care Act (ACA) requiring employers to cover certain contraceptives for their female employees, by a 5-4 vote.

Special Problems When Sexuality in Not a Protected Class

• The Family & Medical Leave Act (FMLA)– Extends only to only a “spouse’s” serious health condition

• Federal & State Benefits/Pensions

• Full Faith & Credit Clause– Legally married in Vermont under VT law; but not a legally

married couple in Florida?

DOMA: The Defense of Marriage Act (1996)

DOMA: The Defense of Marriage Act (1996)

• A federal law that allowed states to refuse to recognize same-sex marriages granted under the laws of other states.

• Until Section 3 of the Act was ruled unconstitutional in 2013, DOMA, in conjunction with other statutes, had barred same-sex married couples from being recognized as "spouses" for purposes of federal laws, effectively barring them from receiving federal marriage benefits.

• DOMA's passage did not prevent individual states from recognizing same-sex marriage, but it imposed constraints on the benefits received by all legally married same-sex couples.

Post-DOMA (Con’t)• The Department proposes to define spouse as follows:

– Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State.

– This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Names Have Been Changes to Protect the (Often Less-than) Innocent…

Fact Pattern #1: You have just been hired as the HR Manager of a medium-sized custodial company. You employ a female, non-union member of staff, who is an hourly employee. She has been an exemplary employee without any discipline in her personnel file and has a recent performance review that was above average. Her position has a gender neutral job description, but you begin to get complaints from this employee that her supervisor is assigning her to work the more physically demanding tasks that he only assigns the male employees. You see in her personnel file that she has reported this before. She also reports that when she objected to being the only woman to be assigned to work with me, her supervisor laughed and only increased her demanding workload, saying “if you look like a man, I’m gonna work you like a man.” She also produces two statements from co-workers that appear to confirm her supervisor made this statement. While the employee identifies as female, she does not wear make-up, dresses in masculine attire and does not exude many (if any) feminine traits. What issues do you see?

• Fact Pattern #2: The above employee states that she is to her breaking point due to the anxiety and depression caused by her boss. While she does not show up for her shift at 7am Monday morning, you do receive a voicemail when you get in at 9am- the employee states that she has been in the hospital since Friday evening and that she would not be getting out until Wednesday afternoon. She requests that when she returns to work on Thursday that she be transferred to the C-shift since that crew is short-staffed at the moment. What issues do you see?

Fact Pattern #3: You have just been hired as HR for an urgent care facility that has received a number of complaints from female members of staff about a physician. The complaints have all been verbal but have ranged in severity from the male physician being a “close talker” to him touching female staff under their scrubs. So far, nothing has been done with these complaints, but they are growing in number. One female staff member has even threatened to call famed attorney Jackie Chiles. So you decide that you need to start looking into these complaints. After looking into the physician’s background, you make a startling discovery: he had been transferred from one of your employer’s other urgent care facilities in Del Boca Vista to your facility in SW Florida because of complaints about his inappropriate behavior. What’s more, he had been arrested in 2007 for allegedly drugging a nurse at happy hour, thoughshe later declined to press charges. This physician, however, is the top biller the urgent care company has and losing him would be a big blow to the company’s bottom line. What do you do?

Fact Pattern #4: For years, you have been HR for a company that owns car dealerships and employs more than 250 people. One of those employees, however, you know better than you ever cared to because he is a “complainer” and over the years has always taken time off due to some claimed disabilities that don’t seem to be defined. The employee is a salesman and recently his sales have recently dipped. On Monday morning, his boss comes into your office and tells you that the employee collapsed on the sales floor just before closing on Friday evening and that he was due to be in the hospital for at least a week. His boss tells you that he will be out of work “for awhile” but that he wants to fire him because of low sales numbers. You agree but forget to process the termination paperwork right away. After a week, the employee emails you to say that he is out of the hospital but that he would be out of work 4 more weeks in a rehab facility. Since he’d been fired, you disregard the email. When the employee tries to return to work, you tell him that he was terminated weeks ago due to low sales. Angry, the employee calls Pearson, Specter and Litt, who review his separation from employment. The employee then files for unemployment compensation and you decide to fight it on your own- after all, the employee had low sales and pretty much just stopped coming into work, so it’s a no-lose! What mistakes have been made here?

QUESTIONS?

Benjamin H. Yormak, Esq.Yormak Employment & Disability Law

9990 Coconut RoadBonita Springs, Florida 34135

Telephone: 239.985.9691byormak@yormaklaw.com

www.yormaklaw.com