Excerpts from March 2011 “An Ounce of Prevention” Newsletter

*The following are excerpts from some of the articles presented in our Newsletter. Please contact us to obtain complete copies of past Newsletters.

U.S. Supreme Court Expands Employees’ Anti-Retaliation Rights

Employers should take note of a United States Supreme Court case decided in January. In Thompson v. North American Stainless, the Supreme Court expanded the rights of employees with regard to retaliation claims.

FMLA Leave: Acting Too Quickly May Cause Problems
(Don’t terminate an absent employee just because her doctor says she can return to work!)

The Family and Medical Leave Act (“FMLA”) provides eligible employees with up to 12 weeks of unpaid leave per year for serious health conditions. When an employee asks for time off from work under the FMLA, his employer may request medical certification by a health care provider of the need for leave. The request for certification must generally be in writing and must detail the employee’s specific obligation to provide certification and the consequences of failing to do so. The employer must then give the employee at least 15 calendar days to provide the medical certification.

A recent case from the U.S. Court of Appeals for the Sixth Circuit (the circuit in which federal cases from Ohio are heard), made clear that an employer should always wait the full 15 days to terminate an employee who has requested FMLA leave—even if it appears that the employee may not be entitled to FMLA leave. Branham v. Gannett Satellite Information Network.

Failing to Produce or Preserve Documents in a Lawsuit Can Result in Large Sanctions

A trial court in New Jersey recently ordered an employer-defendant to pay more than $111,000 in sanctions for withholding documents during a lawsuit. This “discovery sanction” was not a verdict or judgment against the company, but a punishment for the employer’s failure to produce documents requested by the plaintiff. Scott v. Sysco Food Services of Metro New York.

Update Your Bulletin Board: Revised Poster from EEOC Regarding GINA

The Equal Employment Opportunity Commission has issued a new poster which was revised to explain employees’ rights under The Genetic Information Nondiscrimination Act (GINA). The poster is entitled “EEO is the Law.” Employers with 15 or more employees must display the poster in a conspicuous place where employees can read it. Although companies may try to sell you the poster, you can print a copy for free from the EEOC’s website by clicking here: http://www1.eeoc.gov/employers/poster.cfm

Department of Labor Now Sharing Information about Your Company’s Violations

Companies spend a great deal of time and money ensuring that their image is professional. But, did you know that the Department of Labor (DOL) has profiles of companies in an online database? Those profiles detail OSHA violations, wage and hour records, and audit results from other agencies. The database was previously used privately by the government to discover “bad actors” – companies with multiple violations.

Now, the database can be used not only by the DOL, but by anyone with internet access. The DOL says its online resource “aims to make the enforcement data, collected by these agencies . . . accessible and searchable, using common search criteria, to the public.”