Employment Law

EMPLOYMENT LAW UPDATE

While this case is from Louisiana, we thought it was worth mentioning in the complex world of FMLA leaves. In Briones v. Genuine Parts Co. (E.D. La, 83 EPD sec. 41,278), a federal district court in Louisiana concluded that a father did qualify for FMLA when he was absent from work to care for his three healthy children while his wife cared for their son in the hospital. This court found that liberal interpretation of the FMLA makes it clear that Congress passed this legislation to aid families when they faced a crisis such as that faced by this employee's family. The employee's 16-month-old son became gravely ill and hospitalized for several days. As a result of his wife being required to tend to the child in the hospital, this employee who normally worked nights concluded that he needed to stay home to care for his other three children who were healthy.

FMLA leave properly rejected by Employer for Employee Undergoing Gender Reassignment

In Sanders v. May Dep't Stores, Co. (8th Cir., 83 EPD sec. 41,285), the Eight Circuit, a little closer to us here in Wisconsin, declared that an employer did not violated the federal FMLA when it granted an employee who was about to undergo sex reassignment surgery personal leave instead of FMLA leave because the employee never requested FMLA leave. The employee did not want to complete the medical certification properly required by this employer despite this employer informing him that he may be eligible on the basis of his diagnosis of gender dysphoria. The employer had a policy of personal leave, granting employees up to 13 weeks of leave. At the expiration of this type of leave this employee could return to work if a position was available, but his pre-leave position would not be held form him. The employee actually tendered a resignation to commence his unpaid leave and requested payment of severance at this time. The case was tried to a jury, which found in favor of the employer on this issue, who had reinstated this now female employee (after her surgery) to a different position but ultimately terminated her based on poor performance.

Key points from this case: 1. The employer made sure that it made it very clear that FMLA was an option to the employee who specifically rejected it and refused to provide medical certification - had medical certification been supplied he/she may have qualified for leave; 2. This employer had a well defined unpaid leave policy and the employee's actual resignation to go into this status without any guarantee of return to his prior position was clearly stated (far different from rights he/she would have had if the employee had requested FMLA); 3. Based on this controversial topic, it is unclear what might have swayed this jury, so you must be careful. We thought that this case was noteworthy in light of a federal court's willingness to back an employer in a situation where FMLA was very clearly offered repeatedly to an employee who rejected that offer and refused to supply medical certification to the Employer.

We hope this update has assisted you. If you have any further questions on this legal topic, please do not hesitate to call Attorney Dawn Marie Harris at O'Flaherty Heim Egan, Ltd.

EMPLOYMENT LAW UPDATE

1. A trip to a doctor can be incidental to employment according to the Court of Appeals in American Mfr. Mut. Ins. Co. v. Hernandez, 252 Wis. 2d 155, 642 N.W.2d 584 (Ct. App. 2002). In this case, Hernandez, a Walgreen's employee, suffered injuries which were the result of an automobile accident that occurred while she was en route to her physician's office for a final exam relating to an earlier undisputed work injury. The court thus held that at the time of the accident, this employee was performing a service growing out and incidental to her employment pursuant to sec. 102.03(1)(c), Wis. Stats. Thus, this accident causing additional injury "arose out of her employment" at Walgreen's pursuant to sec. 102.03(1)(e), Wis. Stats.

2. An Employer's self help can be bad faith. In Beverly Enter. Inc. v. Wis. Labor and Industry Review Comm'n., 250 Wis. 2d 246, 640 N.W.2d 518 (Ct. App. 2001), LIRC ordered an employer to pay $31,903 to the employee for wrongful refusal to rehire. This order was never modified or reversed. However, the employer unilaterally withheld from this amount $10,097.30 for taxes that was not authorized by LIRC. As a result, the Court of Appeals ordered this employer to pay to the employee an additional $10,097.30. Additionally, the employer was also subjected to the applicable bad faith penalty because it did not seek a modification allowing it to withhold money for taxes, or seek a clarification. Rule to the wise: ask for an explanation before you act on your own when it comes to LIRC.

3. A statute of limitations runs from the death, not the injury. The Wisconsin Court of Appeals held in Int'l Paper Co. v. Labor and Industry Review Commission, 248 Wis. 2d 348, 635 N.W.2d 823 (Ct. App. 2001), that the 12 year statute of limitations for death benefits begins to run when the injured employee dies, not from the date of the injury.

If you have any questions about this article or would like to see some other legal topic covered in the future, please feel free to contact either Attorney Dawn Marie Harris at O'Flaherty Heim Egan.

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