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Investigate FMLA Fraud? Absolutely! But…

September 8, 2017


Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

  • Have a solid basis for initiating an investigation. FMLA investigations should not

Temps in Tenth Circuit Face Stricter Scrutiny When Seeking Time Off as Reasonable Accommodation

On July 6, 2017, a three-judge panel of the United States Court of Appeals for the Tenth Circuit reiterated that physical attendance in the workplace is an essential function of most jobs and emphasized this is particularly true for temporary workers filling short-term vacancies.

In Punt v. Kelly Services, the plaintiff, Kristin Punt, was a temporary worker assigned to work for GE Controls Solutions (“GE”) as a receptionist.  The essential functions of that job included being “physically present at the lobby/reception desk during business hours.”  However, during her six weeks in the position, Ms. Punt was absent or tardy on multiple occasions, often due to medical appointments related to a recent diagnosis of breast cancer.  GE terminated her assignment after she informed GE on a Monday morning that she planned to be absent the entire week and would need unspecified additional time off for “some appointments and tests” and “five

“My Employer Made Me Do It” — Texas Supreme Court Rejects a Claim for Compelled Self-Defamation

August 5, 2017


On May 26, 2017, the Texas Supreme Court addressed whether Texas recognizes a defamation claim for compelled self-publication.  The Texas Supreme Court, joining a number of other states, including Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania and New York, rejected a claim of compelled self-defamation in Texas.  Other states, such as California and Colorado, recognize a claim for compelled self-defamation.

Generally speaking, a defamation claim includes the following elements:

  • The publication of a false statement of fact to a third-party,
  • That was defamatory concerning the plaintiff,
  • With the requisite degree of fault, and
  • Damages, in some cases.
  • The issue regarding “compelled self-publication” relates to the first element.  Specifically, does the publication have to be made by the defendant or can it be made by the plaintiff.

    In Exxon Mobile, the plaintiff, Gilberto Rincones, was a catalyst technician and was required to take and pass a drug test.  Mr. Rincones failed a

    $2.5 Million SEC Whistleblower Award Goes to Government Employee

    July 28, 2017


    On July 25, 2017, the SEC announced another whistleblower award — this one for almost $2.5 million. What sets this award apart from earlier awards is its recipient — “an employee of a domestic government agency.” The Order spends more words in its footnote explaining why a government employee is entitled to a whistleblower award than the Order does in discussing the substantive award itself.

    Click here to read the Alert in full.

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers understand the SEC Whistleblower Program. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.

    Other Perspectives on Trends in Employee Noncompetition Agreements

    In mid-May, the New York Times published a long article reporting a national trend that employers are expanding both the number of employees who are required to sign non-competition agreements and the types of employees required to sign these agreements.  The article emphasized stories of low-paid, low-level employees who could not find a new job, or had to take a lower paying job, because they signed a non-competition agreement.  The Times ran an editorial that urged legislatures to prohibit employers from restricting the employment opportunities of lower paid employees.

    What is missing from this picture?

    While the Times article mentioned states vary in enforcement of non-competition restrictions, noting that California prohibits all restrictions on employees moving to new jobs, it did not explain the important differences in how states other than California enforce non-competition restrictions.  The Times article also did not report the damage to a business that may

    Supreme Court Will Review Scope of Dodd-Frank Whistleblower Protections for Internal Reports

    Bryan Cave’s White Collar Defense and Investigations practice recently published a Client Alert regarding the Supreme Court’s decision to review the scope of the Dodd-Frank whistleblower protections of employees who blow the whistle on their employers by reporting alleged misconduct internally rather than to the SEC.

    Follow the link below to read more.



    Avoiding State Law Pitfalls (Part 4 of 4)

    June 19, 2017


    This is the fourth hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

    Scenario #4

    A manager of a Minneapolis, Minnesota restaurant calls you regarding an employee who showed up for work exhibiting bizarre behavior and with white powder under her nose.  The Company has a written policy prohibiting the use of illegal drugs and authorizing the Company to conduct probable cause testing of employees.  In accordance with Company policy, the employee undergoes testing which confirms that the employee is under the influence of cocaine.  The manager is calling for approval to terminate the employee.  You know that some states prohibit random drug testing, but you are not aware of any law that would prohibit an employer from discharging an employee who shows up for work under the influence of cocaine, especially when the employer has probable cause to test the employee and the testing confirms

    Avoiding State Law Pitfalls (Part 3 of 4)

    May 29, 2017


    This is the third hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

    Scenario #3

    The manager of a restaurant in Hartford, Connecticut calls you regarding an outspoken cook who frequently expresses his views on controversial topics. All of the cooks discuss a broad range of topics while working, and these discussions do not interfere with their performance. Nevertheless, the manager has advised the cook that he should be careful about offending others with his views on sensitive topics. The cook responds that this is America, and he has a constitutional right to say whatever he wants. The manager asks you whether this is true. You correctly advise the manager that the First Amendment to the U.S. Constitution does not apply to private employers. Rather, federal constitutional rights only come into play if there is some form of “state action.” The next time the cook expresses

    Reducing Exposure to Attorneys’ Fees Awards Through Use of Rule 68 Offers of Judgment (Part 2 of 2)

    May 22, 2017


    This is a continuation of Part 1 https://bclpatwork.com/2017/04/12/reducing-exposure-to-attorneys-fees-awards-through-use-of-rule-68-offers-of-judgment/

    The Recommended Form and Content of a Rule 68 Offer of Judgment

    The offer of judgment should be in writing and state that the defendant is offering to allow judgment to be taken against it for a specific dollar amount (which typically is no less than the amount of the plaintiff’s lost wages through the date of the offer, filing fees, and other recoverable costs), plus an unspecified amount described as “the reasonable attorneys’ fees incurred by the plaintiff through the date of the offer in prosecuting his claims against the defendant.”

    There is risk that the plaintiff will accept offer and a dispute will ensue regarding the amount of the unspecified “reasonable attorneys’ fees” offered. To guard against this, it is advisable to include the following language in the offer of judgment: “The amount of the ‘reasonable attorneys fees’ will be

    Missouri Legislature Changes the Burden of Proof for Workers’ Compensation Retaliation Claims

    May 10, 2017


    On Monday, May 8, 2017, the Missouri Legislature passed Senate Bill 66.  Senate Bill 66 amended a number of sections of the Missouri Workers’ Compensation Act.  Of significant note for employment litigators, Senate Bill 66 modifies the burden of proof for workers’ compensation retaliation claims under §287.780 R.S.Mo.  This change was a direct response to the Missouri Supreme Court’s decision in Templemire v. W&M Welding, Inc., 433 S.W.3d 371 (Mo. 2014).  

    In Templemire v. W&M Welding, Inc., the plaintiff alleged he was fired in retaliation for filing a workers’ compensation claim. The trial court entered judgment in favor of the employer.  The Missouri Supreme Court ultimately reversed and held that to make a submissible claim of retaliation under §287.780 R.S.Mo., “an employee must demonstrate his or her filing of a workers’ compensation claim was a ‘contributing factor’ to the employer’s discrimination or the employee’s discharge.”  The Templemire decision was

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