Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.

September 2005 - Posts

More FMLA Fun

    The FMLA continues to be a source of problems for employers, if for no other reason than there is so much ambiguity built into the statute about notice and what actually constitutes FMLA-based discrimination or retaliation.  A recent federal case from Connecticut further clouds the issues by holding that repeated requests for additional medical information can be a form of retaliation and actionable under the FMLA.  In a case involving Coach USA, the federal judge refused to credit the company's argument that requests for additional medical information, which were made primarily by a third-party contractor with no decision-making power within the company, could not be used as a basis for a retaliation claim.  Instead, the court said that the employer systematically raised a series of obstacles to the plaintiff's return to work and never told him exactly what documentation was necessary for recertification and was never satisfied with what was submitted.
 
    For anyone who has tried to work through the maze of third-party health benefits administration and short- or long-term disability insurance claims, this case is a recognizable nightmare.  Bureaucratic ineptitude does not equal FMLA retaliation, although in this case, it apparently did.  Employers now are charged with making sure that their employees coming back from FMLA leave are not subject to the same run around that everybody else gets as a matter of course.  Troubling. 
posted Thursday, September 29, 2005 6:25 PM by Lou Michels with 2 Comments

Edit your state's statute of limitations

The Michigan Court of Appeals recently ruled that an employer is entitled to enforce a statute of limitations included in a job application form that sets six months as the amount of time employees have to file any employment related claims or lawsuits against the company.  The case is Clark v. Daimler Chrysler Corp., and the opinion issued on September 13, 2005.  The idea that an employer can short circuit federal and state civil rights statutes of limitation through contractual waiver is nothing if not surprising. 
 
The Michigan court interpreted a recent Michigan Supreme Court opinion which stated that unambiguous contractual provisions that provided for a reduced statute of limitations are enforceable as written unless the provision violates law or public policy.  The Court of Appeals notes that the employer provision at issue is not ambiguous, is not contrary to law because "there are no statutes explicitly prohibiting the contractual modification of limitation periods in the employment context," (I suspect that will be news to the Michigan and other state legislatures, which generally assume that their pronouncements are not to be violated unless they write a statute that explicitly allows it), and that Michigan has no general policy prohibiting contract modification of statutory limitations periods.  Other than that sort of universal policy of following the law generally.
 
    The ability of an employer to cut the three-year statutory period for filing discrimination claims under Michigan law down to six months is probably unique to Michigan.  I would not expect judges in other states to allow their legislatures' statutory civil rights schemes to be modified by an employment application waiver.  In other words, putting a Michigan choice of laws provision in your employment agreements or employment contracts, coupled with a shortened statute of limitations filing requirement, will probably not be enforceable anywhere outside of Michigan.  I would expect most courts to simply strike the provision as void against the public policy of their own states. 
 
posted Thursday, September 29, 2005 6:22 PM by Lou Michels with 2 Comments