An employee on an extended medical leave to recuperate from shoulder surgery posts pictures of his active Caribbean vacation. His employer is justified in terminating him, right?  Maybe not.

On April 19, 2017, the Eleventh Circuit reversed a trial court ruling and held that a former employee had raised a genuine issue of material fact regarding whether he was terminated in retaliation for using FMLA despite the former employee posting pictures from various vacations on Facebook during his time off of work to recuperate from surgery. This case, Jones v. Gulf Coast Health Care of Delaware, LLC, 2017 U.S. App. LEXIS 6766 (11th Circ. 2017), serves as a cautionary tale of why employers need to be careful and consistent while following proper steps when terminating employees—even in situations where the evidence of employee wrongdoing might appear obvious.

The plaintiff, Rodney Jones, was formerly employed as the activity director for the defendant, Accentia Health. His job included desk work as well as regular physical activity.  During his employment, Accentia Health approved Jones’s request for FMLA leave for shoulder surgery.  When Jones was unable to resume his full-time job duties at the end of the 12-week FMLA period, Jones requested a modified duty assignment, which was rejected by Accentia Health. Jones then requested additional time off from work, and Accentia Health granted another 30 days of “non-FMLA medical leave” in order to complete his physical therapy.

During the additional 30 days of leave, Jones twice visited the Busch Gardens theme park and went on a trip to St. Martin. Jones took pictures while on the vacations—including pictures of himself on the beach, posing by a boat wreck, and in the ocean—and then posted those pictures on Facebook.  An anonymous co-worker provided the pictures to management.  When Jones returned to work at the end of the additional time off, Jones was suspended by his supervisor and was later terminated. Accentia claimed that Jones was fired because he “(1) posted photos from his outings in violation of the company’s social-media policies, and (2) displayed poor judgment as a supervisor in posting these photos, even if this activity did not violate the company’s social-media policies.”

The appellate court found that Jones presented sufficient evidence that a fact-finder could conclude that Accentia Health’s stated reasons for the termination were pretexual. In arriving at this decision, the court focused on inconsistencies and contradictions in the reasons presented to Jones.  These inconsistencies included a formal termination letter that didn’t mention the Facebook photos, and failing to let Jones know at any time that he violated the company’s social media policy.

Employers need to be consistent when taking adverse action against an employee when FMLA is involved. This includes making sure that both written and oral communications to the affected employee are consistent and clear. Employers should take the time necessary to gather the proper facts and have better communication with the potentially affected employee before deciding upon a course of action and before letting the employee know what action might be taken. This will help ensure that any eventual adverse action is communicated clearly and consistently to the affected employee and will help limit the potential for allegations of a pretexual termination.

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of interest rule released by the DOL in April 2016 (the “Rule”) on their plans. Even though it is widely expected that the Trump administration will delay implementation of the Rule, in mid-January 2017, the DOL released its “Conflict of Interest FAQs (Part II – Rule)”, which addresses topics relevant to ERISA Plan sponsors.  As explained below, these FAQs indicate that the Rule, as currently designed, should not require a large number of significant changes in the administration of most ERISA Plans. …

Read the full post here.

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

Our colleague Jeffrey H. Ruzal, Senior Counsel at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the health care industry: “Decision Enjoining Federal Overtime Rule Changes Will Not Affect Proposed Increases Under New York State’s Overtime Laws.”

Following is an excerpt:

As we recently reported on our Wage & Hour Defense Blog, on November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor from implementing its new overtime exemption rule that would have more than doubled the current salary threshold for the executive, administrative, and professional exemptions and was scheduled to take effect on December 1, 2016. To the extent employers have not already increased exempt employees’ salaries or converted them to non-exempt positions, the injunction will, at the very least, appear to allow many employers to postpone those changes—but likely not in the case of employees who work in New York State.

On October 19, 2016, the New York State Department of Labor (“NYSDOL”) announced proposed amendments to the state’s minimum wage orders (“Proposed Amendments”) to increase the salary basis threshold for executive and administrative employees under the state’s wage and hour laws (New York does not impose a minimum salary threshold for exempt “professional” employees).  The current salary threshold for the administrative and executive exemptions under New York law is $675 per week ($35,100 annually) throughout the state.  The NYSDOL has proposed the following increases to New York’s salary threshold for the executive and administrative exemptions …

Read the full post here.

Employers Under the Microscope: Is Change on the Horizon?

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

On Monday, June 27, 2016, the U.S. Supreme Court declined to review a D.C. Circuit Court of Appeals decision upholding the new U.S. Department of Labor’s (DOL) requirement that home care providers pay the federal minimum wage and overtime to home care workers.  As we previously discussed, on August 21, 2015, the D.C. Circuit in Home Care Association of America v. Weil affirmed the validity of the Home Care Final Rule, which eliminated a long-existing prior regulation and barred third-party employers from claiming minimum wage and overtime exemptions for home care workers.

The U.S. Supreme Court’s decision not to grant review ends any hope that home care providers had that the implementation of the new regulation might be reversed. Accordingly, all home care providers should make sure that they are paying home care workers at least the federal minimum wage and overtime as well as any additional amounts required under state and local laws. Because Medicare, Medicaid and other government programs typically pay only at a flat hourly rate for home care services, providers will be forced to absorb the costs of any overtime or limit the number of hours home care providers work to avoid overtime costs.

Maxine Neuhauser
Maxine Neuhauser

In conjunction with unveiling its Final Overtime Rule, the DOL announced a Time Limited Non-Enforcement Policy (“Policy”) for providers of Medicaid-funded services for individuals with intellectual or developmental disabilities in residential homes and facilities with 15 or fewer beds. Under the Policy, from December 1, 2016, to March 17, 2019, the DOL will not enforce the updated salary threshold of $913 per week for this subset of employers.

The Policy applies only to DOL enforcement actions. The FLSA, however, provides employees with the right to bring a private cause of action.  The Policy, which does not change the effective date of the rule for Medicaid-funded employers, provides no protection from such lawsuits (including class actions) by employees who have been paid less than the updated salary threshold.

Thus, Medicaid-funded employers “protected” by the Policy, will have the same legal obligation to comply with the new salary threshold as of December 1 as every other employer and back pay liability will begin accruing as of that date.

The statute of limitations for FLSA violations is 2 years, unless the violation is willful, in which case the statute of limitation is 3 years.  Keep in mind that the FLSA provides double damages for private litigants and also attorneys’ fees and costs.  Accordingly, employees whose employers misclassify and underpay them in reliance on the Policy, may be incentivized to wait to file suit until after March 17, 2019 – when their potential recovery will be the greatest.

As such,  the Policy does virtually nothing to provide relief to Medicaid-funded employers, who will remain between a rock (the DOL’s higher salary threshold) and a hard place (Medicaid contracts that contain no mechanism for additional funding to meet new salary obligations) – and arguably, will lull employers into a false sense of security that could prove quite expensive.