Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights

Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave.

The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.

The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.

The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).

Mr. Bosland Comments: The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights. The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).

From the decision, it does not appear that the employer argued the point. Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference. For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.

Unfortunately, it is not clear from the Terwilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports. If the duration of approved leave is unknown weekly status reports would appear to be reasonable.

The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment. I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances. Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.
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Are appointment promises that are not met binding on the appointment authority?

Are appointment promises that are not met binding on the appointment authority?
Carson v NYC Dept. of Sanitation, 271 AD2d 380

The Carson decision demonstrates the general rule that promises made by a public employee to an applicant or to another worker are not binding on the appointing authority unless the individual is authorized to make such commitments on behalf of the appointing authority.

Calvin Carson was terminated from his position with the New York City Department of Sanitation [DOS]. When his request to be reinstated to his former position was denied, he sued, claiming breach of contract. The basis for his breach of contract action: Carson alleged that a DOS employee had promised him that he would be reinstated to his former position upon his completion of a drug treatment program.

Citing Granada Building, Inc v City of Kingston, 58 NY2d 705, the Appellate Division dismissed Carson’s appeal. The court said that even if Carson had been promised reinstatement by the DOS employee, the promise was unauthorized and DOS was not bound by it.

On a procedural point, the court noted that although Carson had sued for breach of contract, Supreme Court Judge Beverly Cohen had correctly converted Carson’s complaint into an Article 78 proceeding to annul DOS’s determination to terminate Carson from his position. Why? Because, the court explained, Carson’s original petition effectively sought [his] reinstatement to his former position as a DOS employee, and [DOS] had the statutory and regulatory authority to issue a final and binding determination with respect to this employment. Such decisions by the appointing authority are tested via an Article 78 procedure action rather suing for breach of contract.

Carson also contended that the doctrine of promissory estoppel supported his demand for reinstatement. The Appellate Division rejected this theory, commenting that there was no merit in applying the doctrine in Carson’s case, particularly in light of [his] prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee alleged to have promised Carson’s reinstatement.

The same basic rationale was applied in Schwartz v Crosson, 165 AD2D 14, a case decided by the Appellate Division, Third Department.

Michael Schwartz was promised a certain salary upon appointment to public service only to learn that he would be paid at a lower rate once he reported for duty.

The Appellate Division said that the doctrine of estoppel was not applicable even though Schwartz had relied upon the information given to him concerning his salary upon appointment to his detriment. The decision notes that it is well settled that estoppel is generally not available against the State when it acts in a governmental capacity.

The Court also said that although an exception to the general rule exists in “unusual factual situations” to prevent injustice, it did not believe that Schwartz’s situation fell within such an exception.

Significantly, the Carson ruling notes that the possibility of one public employee misinforming another public employee concerning personnel matters, while unfortunate, is not so “highly unusual” that the general rule against estoppel should be ignored.
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The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration

The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405

Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.

The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.

In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.

The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.

The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.

The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.

Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.

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