1.13.2010

Termination Persists Despite Doctor's Notes

In dismissing a claim for violation of the FMLA , the United States District for the Eastern District of Kentucky ruled that the plaintiff had failed to provide Comair with adequate notice that she suffered from a serious health condition .

Under Comair’s leave of absence policy, employees were required to call in and provide prior notice of any absence from work. Also, upon returning to work, an employee was expected to provide a written excuse or doctor’s note for the absence. During the last year of the plaintiff’s employment, she arrived late or was absent from work on numerous occasions. However, for each of her absences, she would supply a doctor’s note upon her return to work. On June 25, 2007, the plaintiff was issued a final written warning without suspension as a result of accruing nine attendance events in the previous year. She was also advised that any future attendance events may lead to her termination.

Less than two weeks after receiving this warning, the plaintiff again was absent from work. Upon returning to work, the plaintiff did not provide Comair with a doctor’s note for the previous two days. Sometime within the next two to four days, the plaintiff did submit a FMLA information packet which included a certification completed by her physician. On July 12, 2007, the plaintiff was terminated due to her excess absences. One month after her termination, her doctor sent a letter to Comair describing the severity and character of the plaintiff’s headaches and requested that Comair reconsider her termination.

In granting Comair's motion for summary judgment the court noted that even though the plaintiff did provide a doctor’s slip for a number of her earlier absences, the doctor slips provided absolutely no information as to the reason for her absence. The court further concluded that the slips did not even provide sufficient information for Comair to question the leave or to inquire further as to whether there was a serious health condition involved.

With regards to the FMLA packet, the court focused on the timing of the delivery of the information. The plaintiff testified that she did not provide the FMLA until several days after she returned to work. The court ruled that since plaintiff violated Comair’s notice provisions, Comair was justified in terminating her employment.

Employer's should take note from the Comair decision that every leave of absence that is supported by a doctor’s note does not necessarily equate to a protected FMLA leave. It is still the employee’s responsibility to provide sufficient notice to the employer that they suffer from a serious health condition. Also, regardless of whether the employee has a serious health condition, if they do not provide timely notice of their need for leave pursuant to the employer’s policies, they can be terminated.

Author: Charlie Smith
            614.723.2025
            csmith@ralaw.com

1.08.2010

Does the Fourth Amendment Protect Text Messages?

The United States Supreme Court accepted certiorari in City of Ontario v. Quon, from a Ninth Circuit Court of Appeals case in which the Court held that police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the city. Although the policy of the City of Ontario was that employees had no expectation of privacy in messages transmitted on department-owned pagers, Quon was told that text messages would not be audited if Quon paid for charges he incurred beyond the city's plan. Quon reportedly exceeded the character limit under the city's plan several times and paid for the extra usage without incident.

The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures by the government. The United States Supreme Court holds that reasonableness of a search is determined by assessing:
  • the degree to which it intrudes upon an individual's privacy, and
  • the degree to which it is needed for the promotion of legitimate governmental interests.
In this case, the Ninth Circuit found that Quon did have a reasonable expectation of privacy in his text messages based upon the city's informal policy that the text messages would not be audited if overages were paid. It also held that the search was unreasonable in scope because less intrusive methods were available. For example, the court suggested it would have been less intrusive if the Department had issued a warning to Quon that for the month of September, he would be forbidden from using his pager for personal communications and that the contents of all of his messages would be reviewed. Another less intrusive method would have been to ask Quon to redact personal messages and grant permission to the Department to review the redacted transcript.

Although private employers are not bound by the Fourth Amendment, this case presents a sobering reminder for all employers that even well-drafted employment policies that are not properly enforced leave room for liability exposure.
Author: Ann Eberts
            330.849.6649
            aeberts@ralaw.com