Suits In The WorkPlace

Why T.O. Lost

         The recent arbitration decision in the grievance filed by Terrell Owens against the Philadelphia Eagles and the NFL Management Council has several timeless lessons in it for all employers, despite the high-profile/high-dollar-value parties involved.  Although the union forcefully argued that the incidents for which Owens was suspended and ultimately placed on the inactive roster were a series of isolated events, the record maintained by the Eagles through a series of letters to Owens and his agent, coupled with the testimony of the head coach regarding his conversations with the two, allowed the arbitrator to discern an orchestrated pattern of conduct aimed at forcing Owens' employer to break its contract with Owens.  Once this orchestrated pattern was established, the arbitrator had little trouble in denying the grievance. 

            The Eagles made the arbitrator's job much easier by a series of letters to Owens detailing his instances of misconduct, as well as laying out their own theory that the misconduct was simply designed to get Owens out of a contract he wished he hadn't signed.  In addition, the Eagles' letters pointed out that Owens had publicly lied on several occasions regarding a so-called "secret waiver" that Owens claimed he was forced to sign relating to his medical condition at the end of the 2004 season.  This further undercut Owens' credibility when he testified at the arbitration hearing. 

            Finally, the Eagles did not make a unilateral decision until very late in the game with Owens, and even then offered him a way to avoid suspension and deactivation by making a public apology and addressing his concerns with the Eagles' quarterback directly.  For whatever reason, Owens refused to speak directly either to the football team or to the quarterback, and it was at that point that the Eagles suspended him.   

            The very clear warnings communicated to Owens in several letters from Eagles management, to paraphrase the arbitrator, acted as progressive discipline, properly advising Owens of unacceptable behavior, warning him that his tenure was becoming increasingly challenged, and attempting to provide for the possibility of better behavior in the future.  When these efforts failed, the arbitrator found that a four-game suspension was appropriate.

             The arbitrator also decided that there was no limitation on the Eagles coaching staff deactivating Owens and prohibiting him from returning to the Eagles facilities for the rest of the season.  The arbitrator's focus here was very narrow, he specifically noted (italics in the original) "the challenge faced by this team, dealing with this player in these particular circumstances."  Again, the "campaign of disruption" threatened and implemented by Owens and his agent was the determining factor for the arbitrator, who noted that what the Eagles had to deal with was not past bad behavior, but an ongoing threat of continued disruption.  He found that the Eagles' coaches properly exercised their discretion to protect the team and the interests of the football club by keeping Owens away from his teammates. 

            The NFL Players Association is understandably miffed by the arbitrator's decision, but really, it appears that Owens put himself in a uniquely disadvantageous position vis a vis his employer.  The employer carefully documented the incidents of problematic conduct, announced in its correspondence with Owens its theory of what he was doing and why, and then confronted him with the prospect of discipline or corrective action, which Owens refused.  I don't think the union should be particularly worried about the precedential value here.  I cannot imagine another player putting himself in this kind of a position, and the arbitrator seems to agree. 

Ball of Confusion

A recent Sixth Circuit case shows, again, how careful an employer must be when monitoring Family and Medical Leave Act absences.  This is a long story, but stay with me. 

            In Wilkerson v. Auto Zone, Inc., the Sixth Circuit ruled that the lack of coordination between employer managers, which resulted in a failure to notify the employee that her FMLA leave had expired, meant that the employer could be found guilty of interfering with FMLA rights when it fired the absent employee, even if her FMLA rights expired two weeks before she returned to work.

            Wilkerson went out on maternity leave and claimed that she was told she would have six weeks of FMLA leave before the baby's birth, and six weeks after.  But because Wilkerson had used intermittent leave prior to leaving work to give birth, she actually ran out of FMLA leave four weeks following the birth of the baby, rather than six.  Auto Zone failed to inform her of this fact, however.  Further complicating the issue, Wilkerson tested positive for a drug masking agent on a routine urinalysis that was reported to the company shortly after she left on FMLA leave.  Although it was the company's normal practice to advise an employee of a positive drug test, Auto Zone did not so advise Wilkerson, and instead determined that she would be terminated because of the failed drug test when she returned from maternity leave. 

            Before she returned, Wilkerson called Auto Zone regarding a medical release she needed to return to work (inexplicably, at the company's request).  Also inexplicably, the human resources official monitoring Wilkerson's absence expected her to return to work after five weeks of FMLA leave.  When Wilkerson failed to show up after five weeks, the HR official notified company management that Wilkerson had not returned to work when expected.

            Wilkerson ultimately showed up after six weeks of leave and was terminated for failing to report for work or call in her absence after five weeks.  She was not advised that she was terminated for the positive drug test.

            Wilkerson sued, claiming that Auto Zone denied her right to reinstatement and retaliating against her for taking FMLA leave.  A jury found in her favor, awarding $56,000 in damages. 

            As you might expect from such a complicated fact pattern, the Sixth Circuit had several things to sort out.  The initial issue is whether Wilkerson was entitled to reinstatement after six weeks of leave, even though her FMLA entitlement expired after only four weeks.  The Sixth Circuit held that an employer must notify an employee in writing when leave is designated as FMLA leave, and if the employer fails to do so, the leave may not be counted against the employee's 12-week allotment.  The court found that this holding was not in conflict with the Supreme Court's Ragsdale decision, even though it effectively awards additional FMLA leave above the statutory entitlement.  The Sixth Circuit found that because the employee reasonably believed that she was entitled to the additional two weeks of leave, she was prejudiced by the employer's failure to notify her of exactly when the FMLA entitlement would run out.

            Similarly, the court rejected the company's claim that Wilkerson's leave entitlement ended when her doctor released her to return to work after five weeks of leave because Wilkerson was unaware of the company's receipt of the release, despite her calls to verify its receipt.  As for the jury's rejection of the company's claim that it would have fired Wilkerson anyway because of her drug test results, the court noted that the company's failure to notify Wilkerson of the results, as it would normally, along with its formal notice to Wilkerson that she was being fired for attendance, provided ample basis for the jury to reject the company's evidence. 

            This case is almost a model for how not to manage an FMLA claim.  The company's failure to get its story straight regarding why it fired the plaintiff (there were actually three separate reasons for the company's termination decision), failure to properly monitor exactly how much FMLA time the plaintiff had, failure to provide her with notice as to when her FMLA leave would end, and failure to notify her of her failed drug test, provided a basis for the jury to disbelieve all of the company's reasons.  The Sixth Circuit simply affirmed the decision.  The lesson for employers?  Carefully monitor and communicate consistently with anyone out on FMLA leave; have a clear understanding on everyone's part as to exactly how much leave is available and when it will end; when you have more than one reason for terminating an employee, communicate all viable reasons at the time of termination.

Friends, Romans, Countrymen, lend me your . . .

You couldn't make this one up if you tried. 

The facts:  employee signs an employment contract accepting a two-year assignment to work in Manila; employee arrives in Manila and stays in a hotel while searching for an apartment for himself and his family; four days after his arrival, employee exits a restaurant and is suddenly kidnapped by three men who hold him hostage for three weeks, chain him to the floor, attempt to hang him, and torture him; the kidnappers seek an undisclosed amount of ransom from the employer; employer does not pay ransom until it receives a videotape (read Proof of Life) showing the kidnappers cutting off part of the plaintiff’s ear (graphic, but true).

The case:  slightly maimed, and no doubt, emotionally distressed, the employee makes his way to a court room halfway around the globe and sues his employer - in tort. The employer, not surprisingly, raised as a defense the language of the contract the employee had signed, which stated that workers’ compensation insurance would provide the exclusive remedy for injuries arising out of and in the course of his employment.  In the past, D.C. courts have adopted the “coming and going” rule, which provides that employee injuries sustained while en route to or from work are not in the course of employment and therefore are not compensable under the Workers’ Compensation Act. In this case the employer unsuccessfully argued that the plaintiff fell underneath an exception to the “coming and going” rule called the “traveling-employee” exception. Under this exception, employees injured while engaged in continuous travel because of the demands of the job are covered by workers’ compensation. The Court of Appeals, however, found that the “traveling-employee” exception did not apply in the instant case. Noting that the employer was unable to cite to any authority supporting the argument that an employee is converted into a “traveling-employee” because he starts a new job at a fixed out-of-state location, the Court stated that its decision reflects “the fact that the traveling employee exception cannot be used to bypass the jurisdictional limits of state workers’ compensation laws.”

The outcome:  the Court of Appeals allowed the employee's claims to proceed.

My opinion (not that you asked for it):  Not completely clear.  There's no doubt the employee's plight evokes sympathy, even though he was apparently held by kidnappers of questionably competence who "tried to hang him" but for some reason were unable to do so.  Nevertheless, the employer here appropriately contracted to provide for insurance to address workplace injuries.  Even though this is not the typical workplace injury, the law should allow employers to manage their risks.  Here, those efforts were rejected, essentially leaving the employer responsible for the actions of a third party it could not possibly predict or control.

Ali Kahn v. Parsons Global Services Ltd., D.C. Cir., No. 04-7162, 11/15/05

Manage This

Taking a Bite out of the FMLA

Bringing Home the Bacon