248-409-1900 dburke@mi-worklaw.com

It was a Bad Weekend for Leadership

By: Dan Cohen – 9/30/14

          Who comes to mind when we think of great leaders? George Washington, Abraham Lincoln, Winston Churchill, FDR, Margaret Thatcher, MLK? All of the above? Leaders inspire. They exude confidence in others. They have passion.   They accept responsibility and fault. But most of all, they do things because it is the right thing to do – not just the popular thing to do. Great leaders don’t make excuses or blame others when things go wrong.   This past weekend, I witnessed some pretty inept leadership by two supposed leaders.

          First, I watched with disgust as President Obama played the “blame” game by publicly blaming his intelligence team for not knowing that ISIS posed such a threat to the world, much as he did when he announced a complete lack of knowledge that there was an imminent threat in Benghazi. I also watched with amazement as Michigan’s much maligned football coach, Brady Hoke, claimed he did not know his quarterback was hurt when all 102,926 fans in attendance could tell. Of course, making matters significantly worse for Coach Hoke was the announcement earlier today by his boss Dave Brandon that Shane Morris had a probable mild concussion.

          Couldn’t they have each said, “It is my fault, and I take full responsibility for what happened?” I certainly would feel better if I did not have to try to figure out if my President or my team’s football coach had just lied to me or placed a bit too much spin on their comments. Great leaders don’t do that, do they?

          The weekend also brought closure to the 20 year Hall of Fame baseball career of Derek Jeter. Jeter was the captain of the Yankees for over 10 years, was a 14 time All-Star and possibly the greatest shortstop ever to play the game. But his statistics alone will not be his legacy. It will be his leadership role with the Yankees for most of his 20 years. Seasoned veterans looked up to him when he was just a few years removed from Kalamazoo Central High School. Jeter led by example. He said all the right things. He was humble. He was positive. He did not make excuses or blame others. He was and is a leader!

The Friday Monday Leave Act (Insert Sarcasm)

By:  Rhonda Armstrong – 9/25/14

        Welcome to the “Friday Monday Leave Act,” otherwise known as the Family Medical Leave Act (FMLA). The FMLA generally applies to private sector employers with 50 or more employees in a 75 mile radius and most public employer. It provides eligible employees (those with 12 months of service with their employer who worked 1250 hours in the 12 months leading up to the leave) with up to 12 weeks (26 weeks in some cases) of unpaid leave for certain statutory events, like serious health conditions of the employee or employee’s family member. While the FMLA is now more than 20 years old, as a management-side labor and employment attorney, I find that many employers still do not fully understand it and are constantly challenged in handling what is referred to as unforeseeable intermittent or reduced schedule leave (in large part because employees have learned how to work and abuse the system).

        What is intermittent or reduced schedule leave?

        Under the FMLA, employees may take protected leave on a continuous basis (e.g., a new mother taking 12 weeks after the birth of her child), on an intermittent basis (e.g., a few hours per week) or on a reduced schedule basis (e.g., part-time work). The need for leave can be based upon a foreseeable event like when an employee is pregnant and will need time off for childbirth and for the immediate period thereafter But, FMLA leave can also be used when the event is unforeseeable, like when an employee is injured. It is this unforeseeable leave which can be so easily abused by employees and, therefore, the source of employer frustration and mistakes. Thanks to the Friday Monday Leave Act, an employee can technically call off work Friday and Monday and enjoy the benefit of three or four-day weekends by asserting a variety of ailments that can qualify as a serious health condition under the FMLA. Migraines, depression, and chronic fatigue syndrome are just a few examples of conditions that can qualify an employee for intermittent or reduced schedule leave. Needless to say, this raises employer suspicions, is trying for supervisors, and causes coworker discontent.

         What is an employer to do?

         There are avenues an employer can pursue if it believes an employee is working the system. These include:

  • Follow the FMLA medical certification, second opinion, or tie-breaker process. Pursuant to the FMLA, employers have the right to request medical certification when leave is used for a serious health condition of the employee or employee’s family member. An employer also has a right to request a second opinion when it has reason to doubt the certification. If there is a conflict, the employer may require a third opinion. Because the employers are responsible for the costs associated with second and third opinions and because the process takes so long, the second opinion/tie breaker avenue is seldom used and generally ineffective in the case of intermittent leave cases. However, when things just do not add up, this can be a useful tool for employers The medical certification process is worth utilizing in most cases though.
  • Enforce the Company’s absence reporting policy, absent unusual circumstances. In 2009, the FMLA regulations were revised to expressly permit employers to condition FMLA-protected leave on an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. Therefore, if an employee no call/no shows, and you consistently terminate employees for similar infractions, you are within your right to discipline and even terminate the employee absent evidence of inconsistent enforcement or unusual circumstances (g., the employee was unconscious and unable to call).
  • Have good systems in place to document employee call-ins, reasons for absences, and time-off taken. While this may seem obvious, it is important to have systems in place documenting all employee absences and the reason for the absences. I recently assisted an employer that simply wrote FMLA every time an employee called in, but there was no other evidence that the employer could rely upon to show why – absences were treated as FMLA versus non-FMLA time-off. This can be problematic in demonstrating whether an employee has exhausted FMLA leave and/or is entitled to additional leave.
  • Follow the FMLA designation procedures. Pursuant to the FMLA regulations, employers are required to designate time-off as FMLA-qualifying (it is recommended that employers use the DOL form WH-382). Generally, employers must notify the employee in writing that the leave has been designated as FMLA qualifying and of the number of hours/days/weeks counted as FMLA within five business days absent extenuating circumstances. When intermittent leave is predictable, only one designation notice is required. However, this is rarely the case. More often, employees call in sporadically and their usage is unforeseeable. In such cases, an employer must then provide the notice upon request by the employee but not more than once in a 30-day period and only if the leave was taken during that period.
  • Consider hiring a private investigator. This is one of our favorites. There is no better way than to curb abuse than to obtain video of an employee, who called off on Friday due to a migraine, only to be videotaped water skiing. The Sixth Circuit (the court with jurisdiction over Michigan) has endorsed this practice where the employer has a reasonable bases to expect abuse. Tillman v. Ohio Bell Tel. Co., 545 Fed. Appx. 340 (6th 2013).  The Sixth Circuit rejected an FMLA claim when the employer s terminated an employee who was videotaped shopping, driving and working in his garage although he had called off for a back problem. The Court determined that the employer was justified in conducting the surveillance because the employee had routinely used intermittent leave on weekends and days adjacent to scheduled days off. In Michigan, however, surveillance should be performed by a reputable company and only during the employee’s normal work hours to avoid invasion of privacy and trespass-related claims.

         Handling these situations can be a huge headache for employers. If faced with such circumstances, employers should be on high alert that any discipline or discharge decision may end up being scrutinized by a judge or jury (and or that the employee may already be consulting with an attorney). While I have outlined the above recommendations, it is wise to involve legal counsel at the early stages so that you can increase the probability of successfully defending your actions.

         Welcome to the “Friday Monday Leave Act,” otherwise known as the Family Medical Leave Act (FMLA). The FMLA generally applies to private sector employers with 50 or more employees in a 75 mile radius and most public employer. It provides eligible employees (those with 12 months of service with their employer who worked 1250 hours in the 12 months leading up to the leave) with up to 12 weeks (26 weeks in some cases) of unpaid leave for certain statutory events, like serious health conditions of the employee or employee’s family member. While the FMLA is now more than 20 years old, as a management-side labor and employment attorney, I find that many employers still do not fully understand it and are constantly challenged in handling what is referred to as unforeseeable intermittent or reduced schedule leave (in large part because employees have learned how to work and abuse the system).

        What is intermittent or reduced schedule leave?

        Under the FMLA, employees may take protected leave on a continuous basis (e.g., a new mother taking 12 weeks after the birth of her child), on an intermittent basis (e.g., a few hours per week) or on a reduced schedule basis (e.g., part-time work). The need for leave can be based upon a foreseeable event like when an employee is pregnant and will need time off for childbirth and for the immediate period thereafter But, FMLA leave can also be used when the event is unforeseeable, like when an employee is injured. It is this unforeseeable leave which can be so easily abused by employees and, therefore, the source of employer frustration and mistakes. Thanks to the Friday Monday Leave Act,, an employee can technically call off work Friday and Monday and enjoy the benefit of three- or four-day weekends by asserting a variety of ailments that can qualify as a serious health consition under the FMLA.. Migraines, depression, and chronic fatigue syndrome are just a few examples of conditions that can qualify an employee for intermittent or reduced schedule leave. Needless to say, this raises employer suspicions, is trying for supervisors, and causes coworker discontent.

        What is an employer to do?

        There are avenues an employer can pursue if it believes an employee is working the system. These include:

  • Follow the FMLA medical certification, second opinion, or tie-breaker process. Pursuant to the FMLA, employers have the right to request medical certification when leave is used for a serious health condition of the employee or employee’s family member. An employer also has a right to request a second opinion when it has reason to doubt the certification. If there is a conflict, the employer may require a third opinion. Because the employers are responsible for the costs associated with second and third opinions and because the process takes so long, the second opinion/tie breaker avenue is seldom used and generally ineffective in the case of intermittent leave cases. However, when things just do not add up, this can be a useful tool for employers The medical certification process is worth utilizing in most cases though.
  • Enforce the Company’s absence reporting policy, absent unusual circumstances. In 2009, the FMLA regulations were revised to expressly permit employers to condition FMLA-protected leave on an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. Therefore, if an employee no call/no shows, and you consistently terminate employees for similar infractions, you are within your right to discipline and even terminate the employee absent evidence of inconsistent enforcement or unusual circumstances (g., the employee was unconscious and unable to call).
  • Have good systems in place to document employee call-ins, reasons for absences, and time-off taken. While this may seem obvious, it is important to have systems in place documenting all employee absences and the reason for the absences. I recently assisted an employer that simply wrote FMLA every time an employee called in, but there was no other evidence that the employer could rely upon to show why – absences were treated as FMLA versus non-FMLA time-off. This can be problematic in demonstrating whether an employee has exhausted FMLA leave and/or is entitled to additional leave.
  • Follow the FMLA designation procedures. Pursuant to the FMLA regulations, employers are required to designate time-off as FMLA-qualifying (it is recommended that employers use the DOL form WH-382). Generally, employers must notify the employee in writing that the leave has been designated as FMLA qualifying and of the number of hours/days/weeks counted as FMLA within five business days absent extenuating circumstances. When intermittent leave is predictable, only one designation notice is required. However, this is rarely the case. More often, employees call in sporadically and their usage is unforeseeable. In such cases, an employer must then provide the notice upon request by the employee but not more than once in a 30-day period and only if the leave was taken during that period.
  • Consider hiring a private investigator. This is one of our favorites. There is no better way than to curb abuse than to obtain video of an employee, who called off on Friday due to a migraine, only to be videotaped water skiing. The Sixth Circuit (the court with jurisdiction over Michigan) has endorsed this practice where the employer has a reasonable bases to expect abuse. Tillman v. Ohio Bell Tel. Co., 545 Fed. Appx. 340 (6th 2013).  The Sixth Circuit rejected an FMLA claim when the employer s terminated an employee who was videotaped shopping, driving and working in his garage although he had called off for a back problem. The Court determined that the employer was justified in conducting the surveillance because the employee had routinely used intermittent leave on weekends and days adjacent to scheduled days off. In Michigan, however, surveillance should be performed by a reputable company and only during the employee’s normal work hours to avoid invasion of privacy and trespass-related claims.

        Handling these situations can be a huge headache for employers. If faced with such circumstances, employers should be on high alert that any discipline or discharge decision may end up being scrutinized by a judge or jury (and or that the employee may already be consulting with an attorney). While I have outlined the above recommendations, it is wise to involve legal counsel at the early stages so that you can increase the probability of successfully defending your actions.

How A “Sandbox” Can Shore Up Your BYOD Program

How A “Sandbox” Can Shore Up Your BYOD Program

By:  La Toya Palmer – 9/23/14

           It seems like every month you hear about the latest and greatest device release. As I type this, people have been camped out at the nearest Apple store hoping to purchase the new iPhone 6 (which, in my humble opinion, brings to mind my old graphics calculator; huge. I digress.). It is no wonder that companies are hard pressed to try and keep up with the latest and greatest devices and technology. On one side you have your devoted Apple fanatics that absolutely refuse to touch anything Android; and on the other side you have your Android techies who swear there is none better. What does a company do to try and appease these loyal consumers you ask? Why, implement a Bring Your Own Device to Work (“BYOD”) program, of course.

            What is a BYOD program? Some would consider it the best of all worlds. From the employees’ standpoint, it’s a great thing. Employees get to use the latest and greatest technologically advanced devices, while the employer maintains employee satisfaction and improves employee productivity. In essence, the employer allows its employees to bring various devices to use at work, provided the employee agrees to the employer’s terms regarding the devices. Ahhhh. There is always a catch, you say; not really.

          Think about it like this; in order for a company to safely participate in a BYOD program, it has to have great data protection and security safeguards in place. This means that a company will need to somehow balance security with the ever-growing prospect of user choice and freedom. One of the ways companies are approaching the issue of security is through “sandboxing,” or “mobile device management” (MDM). MDM allows users the ability to cordon off or “sandbox” certain data, such as company data, from other information, such as personal data, that is on a mobile device. This gives the company the ability to remotely lock the mobile device or completely erase the data that is located in the sandbox without erasing all of the information on the device. In addition, it allows companies to create a safer, more protected environment for their networks and information maintained on employees’ personal devices.

          MDM programs appear ideal for companies that are interested in implementing a BYOD program. However, employers should proceed with caution. Without the right policies in place, employers can run afoul of some federal and state laws that regulate data and computers. For example, the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, imposes criminal and civil penalties on individuals and companies that “intentionally access a computer without authorization or exceed authorization” to obtain “information from any protected computer.” In addition, the CFAA also prohibits individuals and companies from “knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer.” Some may argue that a smartphone is not a computer; however, courts are split on the status of a smartphone as a computer. And your company does not want to be the “crash-test dummy” on this one in a court of law.

          Hence, the more reason an employer who implements a BYOD program, especially an employer that is using MDM, must have a strong BYOD policy in place. Here are some guidelines of information a good BYOD policy should contain:

           1.)    Ensure that all employees who want to participate in the BYOD program provide affirmative consent. It is recommended that the BYOD policy be a stand-alone policy even if incorporated into the employee handbook.

          2.)    Understand when the company may need to view the personal content maintained within a device. – For example, IT may not be able to provide technical support without possibly viewing an employee’s personal content.

          3.)    Make it clear to the employee that under certain circumstances, remote wiping may occur that could damage some personal content. – Although most MDM software aims to prevent the wiping of personal content, this cannot be guaranteed.

           4.)    Ensure that the language in the policy is unambiguous and direct.-This will limit an employee’s ability to claim they misunderstood the policy in the event litigation ensues.

            5.)    Always, always, always retain the records of the signed written consent- This way you will have the consent documents if needed down the road.

           BYOD programs are a great way to increase employee satisfaction and productivity. We all know how attached people are to their personal devices. Yet, implementing a BYOD program also has its share of technical, legal, and security concerns. To address these challenges, it is always wise for an employer to approach the implementation of a BYOD from a holistic vantage point, including human resources, legal, legal and IT from the beginning. This will ensure that all your bases are covered and that your BYOD program is a success on all fronts.

We Apologize, But We Have Been as Busy as Bees….And Have The Hive to Prove It

We Apologize, But We Have Been as Busy as Bees….And Have The Hive to Prove It

By:  Bill Pilchak – 9/22/14

          Regular subscribers may have noticed that for the first time since February when we began posting items to the EmpLawyers BLawg every Tuesday and Thursday, that we failed to post on Thursday, September 18. We have a good excuse.   Honest.

          As most in our industry know, management labor/employment attorneys get busiest immediately after Labor Day. We are not 100% sure why this is the case, but suspect it is because our brethren and sistren of the bar on the Plaintiff’s side of the courtroom return to work after a leisurely summer off…or possibly after taking time off for an intense scrubbing of their collective consciences by trained therapists.

          In any case, we have been busy as bees, and have photographic proof. Above, you will see the impressive hive that has appeared on the second-story window outside Rhonda Armstrong’s office. In case it’s not obvious, the dimensions are about two feet tall and nearly two feet wide.

          When we became building owners and thus facility managers, we never envisioned this kind of problem. Initially, we considered removing the hive ourselves, fairly sure that the swarm attacking whomever was assigned the task would result in a world-class U-Tube video. Alternatively, we could call an exterminator. However, given our frequent posts on how much we value a great work ethic, we respect all worker-bees, even the non-human kind. After considerable thought, we have decided to let the little beasts thrive…until the coldest day next February, when hymnoptera (bees, hornets, wasps, etc.) are unable to fly. On that sub-zero day, we [by that I mean Dan Cohen] will reach out the window and scrape the hive from the glass and brick. We’re open to suggestions as to what to do with it next. We could burn it, of course, but that would seem like genocide (insecticide?) for those arthropodic workers. A more humane suggestion might be to take it to the undeveloped field across the street, so that they can do what they need to do in the spring.   Ah, Pilchak & Cohen, always “giving back” and helping the little guys…the really little guys.

          So we hope you excuse last Thursday’s missed post. I also hope that you excuse this small confession: The hive is a hornet’s nest, not a bee hive. However, not a single analogy appearing above would work if I admitted that in the first lines.

It’s Award Season…..And Guess Who Won Again?

It’s Award Season…..And Guess Who Won Again?

By:  Bill Pilchak – 9/16/14

It’s that time of year, when talent is recognized. “The Emmy’s,” you ask. Nope. They were awarded in August.   “Oscars?” Not for another six months.   “Good heavens, the Miss America pageant was last Sunday. You didn’t win that, did you?” As far as we know, no one at our firm qualifies for that contest.

However, we are pleased to report that again for 2014, our attorneys have been honored to be named to three lists that recognize the best attorneys in our field.

Best Lawyers In America. We are honored to have been named to this list again in 2014 in the fields of Management Employment Law and Labor and Employment Litigation. We were first named Best Lawyers in America in 2011, but had no idea how we came to be included. The website reports that someone other than us had to nominate us. The nomination was then forwarded to all the other attorneys in our practice area for thumbs up or thumbs down. Interestingly, our clients are free to post comments on our Best Lawyers in America entry at: http://www.bestlawyers.com/lawyers/william-e-pilchak/115997/ . We were pleased to see that two of our clients have already done so.

Michigan Super Lawyers. Pilchak & Cohen attorneys have been recognized as Michigan Super Lawyers in the fields of Employment and Labor (Dan Cohen) and Employment Litigation: Defense (Bill Pilchak). Pilchak & Cohen lawyers were first named to Super Lawyers in 2007. Super Lawyers reports that their selection process includes a nomination by peers in one’s practice area as the first step, followed by independent research on the nominee. The third step is a review by a panel of the highest-rated attorneys in our field. Only 5% of all attorneys are named to Super Lawyers.

dbusiness Top Lawyers. We are pleased to relate that we have been notified that we will be included in dbusiness’ Top Lawyers of 2015, which will be published on November 1, 2014. Dbusiness polls more than 18,000 attorneys in the six county area.

 As each industry has its own forms of recognition, most of our readers will understand why we frankly brag that our peers recognize our capability. However, to be perfectly frank, it’s somewhat of a surprise to us that we appear on these lists. After all, we don’t really curry relationships with other defense attorneys. Plus, the plaintiff’s bar votes on nominations, and we really go hammer and tong with that group. So, it’s probably true that we are on these lists in spite of ourselves.

For us, however, the most important recognition comes from our clients, who vote with their wallets, not the mere click of a mouse.