Employer Pays $370,000 for GINA Violations Relating to Family Medical History Questions and ADA Infractions

January 23, 2014 at 10:06 am | Posted in Americans with Disabilities Act, Compliance, Employment Law, Federal Laws, Genetic Information Nondiscrimination Act (GINA), Regulations, Wrongful Termination | Leave a comment
Tags: , , , ,

Founders Pavilion, a nursing rehabilitation center in Corning, New York, was sued for violations of the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) by the EEOC last May. Founders had a practice of requesting family medical history as part of its post-offer, pre-employment medical exams of applicants. GINA, passed by Congress in 2008 and enforced by the EEOC, prevents employers from requesting genetic information or making employment decisions based on genetic information.

The parties settled earlier this month, with Founders paying $370,000. This included a $110,400 payment to a fund for distribution to 138 individuals who were asked for their genetic information, and a payment of $259,600 to 5 individuals who the EEOC alleged were fired or denied hire in violation of the ADA.

A copy of the EEOC press release concerning the matter is here: http://www.eeoc.gov/eeoc/newsroom/release/1-13-14.cfm

Employers Need To Approach Performance Reviews and Employee Termination With Caution If An Employee’s Use of FMLA May Have Impacted Their Performance

December 27, 2012 at 12:27 pm | Posted in Employment Law, FMLA, Wrongful Termination | Leave a comment
Tags: ,

The recent 7th Circuit Court of Appeals case Jeff Pagel v. Tin Inc. serves as an important reminder to employers of the caution and patience required when terminating an employee based on its assessment of an employee’s performance for a period of time that includes the use of FMLA leave.

Jeff Pagel worked for 10 years as an account manager for Tin Inc. making $180,000 annually with sales and account responsibility spread over Illinois and Indiana. Jeff enjoyed significant scheduling flexibility until Tin hired a new manager for its account managers in January 2006. The new manager required daily activity reports and periodic lists of sales prospects contacted in addition to other metrics from the account managers. It was made clear to all of the account managers that an employee’s compliance with the new performance metric and reporting requirements would be considered in the employee’s annual performance review.

During August and September 2006, Jeff missed several days of work because of shortness of breath. Additional absences and testing revealed that he had a heart blockage and an irregular mass in his lung which was later determined to be a false PET scan. Jeff claimed that the absences were covered by the FMLA and that he gave proper notice to his employer of his need for the leave.

On August 24, 2006, five days before a scheduled angioplasty, Jeff received a negative performance review which focused on a two-year decline in sales, and his having the worst performance for contacting potential prospects. Jeff was told that his job was at risk if his performance did not improve. Jeff contested the performance review and also claimed that the metrics regarding his diminished production of prospect calling should not have included the days he made no calls because he took FMLA leave. Jeff had never received a negative performance review prior to August 2006.

While Jeff was getting a new PET scan on September 18th, his new manager called to request a “sales ride along” ASAP so he could observe Jeff’s performance. Typically, account managers needed a week’s notice to organize a sales ride along with customers and prospects. Jeff hastily scheduled the visits in one day, however, a few client visits for later the same week that, by all accounts, did not go well. A few weeks later, Jeff was terminated by his manager because there had been no improvement since the August performance review, and the September sales ride along was a disaster.

Jeff filed suit alleging that his employer interfered with and retaliated against him for his use of FMLA leave. He argued that his termination by his employer for poor performance was simply a pretext for terminating him based on his use of FMLA leave. A federal district court judge concluded that Jeff was properly terminated by his employer for his poor performance during the September sales ride along and there were no FMLA violations. Jeff appealed the judge’s conclusion.

On appeal, Jeff emphasized that it was (1.) improper for his employer to consider prospecting reports that were missing on the days Jeff received medical treatment and that his sales expectations should have been adjusted because of the many days of treatment and FMLA leave, and (2.) his manager “set him up to fail” by insisting on the hastily scheduled sales ride along.

The Appeals Court reversed the lower court’s finding that Jeff’s employer did not violate Jeff’s rights under the FMLA. Among other reasons, the Appeals Court found that Jeff suffered from a serious health condition and was unable to perform his job several days in August and September 2007. The Appeals Court also held that there was enough evidence of Jeff’s claim that he verbally advised his manager of his health issues and his need for “days off.” Similarly, the Appeals Court found that allowing an employer to fire an employee based on the employee’s failing to satisfy full-time performance expectations in light of the reality of, in essence, less than full-time work, because of the rightful use of FMLA leave would make an employee’s leave and protection under the FMLA “illusory.” Finally, the Appeals Court found that Jeff was not given enough notice to set up the sales ride along with his manager and the quick request for the sales ride along was “suspicious.”

The ultimate effect of the different reasoning of the Appeals Court was that Jeff would be given the chance to try his case to a jury, which is not the ideal venue for Jeff’s employer to be defending a termination based on a period of performance that included the use of FMLA leave. The FMLA does not have an absolute bar that prevents employers from terminating employees who are on FMLA leave. The lesson from Pagel, however, is that the employer’s evidence for employee termination has to be overwhelming and clear and is neither potentially directly or indirectly related to the employee’s rightful use of FMLA leave.

Employer Pays $55,000 Settlement for Firing Obese Employee

July 26, 2012 at 9:36 am | Posted in Americans with Disabilities Act, Federal Laws, Regulations, Wrongful Termination | Leave a comment
Tags: , , , ,

A recent settlement of an employee obesity discrimination claim underscores obesity being recognized as a disability that warrants work site accommodation consideration under the Americans with Disabilities Act (ADA).

Last week, a Texas employer was ordered to pay a former employee $55,000 in a lawsuit brought on behalf of the employee by the Equal Employment Opportunity commission (EEOC). Ronald Kratz, a materials handler for a defense contractor, weighed 680 pounds when he was fired by his employer for “being too fat,” according to a recent article in the Houston Chronicle. The employer did not assess whether Krantz was capable of performing his job with reasonable accommodations at the time of the firing.

As part of the settlement, the employer is also required to provide Krantz with six months of out-placement services, as well as provide ADA Reasonable Accommodation Training to all of its managers. At the time of the settlement, Krantz had reduced his body weight to 350 pounds but still had not found new employment.

Blog at WordPress.com.
Entries and comments feeds.