Foley & Lardner LLP

27 December 2011
Legal News: Employment Law Update

Labor and Employment Law Weekly Update

Handling FMLA Abuse: Following Effective Processes Leads to Successful Defense of FMLA Claims
Written by: Jeffrey S. Kopp

Employers continue to struggle with intermittent abuse of the Family and Medical Leave Act (FMLA) (http://www.dol.gov/whd/fmla/). A recent federal court case, Crewl v. Port Authority of Allegheny County, highlights some telltale signs of FMLA abuse and provides good examples of what employers may want to consider when facing potential FMLA abuse situations.

The important facts show the typical patterns common in many FMLA abuse cases. First, the employee, Dawn Crewl, had a long history of requesting intermittent FMLA, beginning in 2002 to care for her son. In 2003, and every year thereafter, she requested FMLA leave for her own migraine headaches. In 2006, she began requesting FMLA for depression, anxiety, and panic attacks. Her doctors certified she would have headaches approximately two times per month, and three to four times per week for anxiety conditions. On various occasions, when she was suffering from headaches or panic attacks, she would call in and use FMLA for either the morning shift or the afternoon shift, when she was normally assigned as a bus driver. The first thing that caused the employer to become suspicious of Ms. Crewl’s use of leave was the emergence of a pattern of absences on Fridays and holidays. The employer also noticed that even though Ms. Crewl would call off work, she would report to her second job as a bartender (which the employer captured on surveillance), even on the same days when she exercised FMLA leave.

When faced with this suspicious use of FMLA, the employer requested that Ms. Crewl recertify her need for FMLA leave. The employer also required that Ms. Crewl receive a second opinion for her medical conditions, as permitted by the FMLA regulations. The second opinion doctor concluded that it was suspect that Ms. Crewl missed half of her scheduled days on Fridays as a result of migraines, a sporadic medical condition. The employer also sent letters to Ms. Crewl’s treating doctors, provided copies of her attendance records, and asked them to opine whether the increased frequency of her absences was consistent with her health conditions.

Most importantly, the employer learned that Ms. Crewl had requested vacation for the July 4 holiday but, given her seniority, she was approved only for two vacation days on June 30 and July 1, and was expected to report back to work on July 3. However, while on vacation on July 2, she called in and informed the employer’s bus dispatcher that she would be absent on July 3 and 4, and attributed those absences to FMLA for her approved conditions. Believing that Ms. Crewl’s use of FMLA leave was disingenuous because she could not possibly have known on July 2 that she would need FMLA leave on July 3 and 4, the employer terminated Ms. Crewl’s employment.

Ms. Crewl filed a lawsuit, asserting claims for FMLA interference and retaliation. However, the court dismissed those claims, finding that the employer legitimately enforced its FMLA policy prohibiting fraudulent use of FMLA leave. Particularly noteworthy, the court held that Ms. Crewl’s July 2 request to use FMLA on July 3 and 4, when she should not have known that her sporadic and unpredictable medical conditions would occur, “obliterates any prospect that the leave was for proper FMLA purposes.”

Employers must be very thoughtful and thorough in analyzing FMLA abuse cases. Crewl demonstrates that employers should use the following tools available to help combat FMLA abuse:

  • Use the medical certification and recertification processes
  • Pay particular attention to patterns of FMLA use on Friday and holidays
  • Use surveillance in certain cases
  • Look for advance FMLA requests that point to fraudulent leave use

NLRB Potpourri Is Not Smelling So Good for Employers
Written by: Mark J. Neuberger

In the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary:

  • On December 22, 2011, the NLRB published a final rule in the Federal Register amending its election case procedures to reduce unnecessary litigation and delays. The rule is due to take effect on April 30, 2012, and is designed to speed up the NLRB election process and reduce the need for administrative hearings. The proposed rules are generally regarded as favoring unions who seek to organize non-union workplaces. Employers who face potential union organizing would be well advised to become familiar with the rule. The U.S. Chamber of Commerce immediately filed suit (http://tinyurl.com/72zwtc4) seeking to prevent the rule from taking effect. According to a statement issued by the Chamber, the NLRB’s final “‘ambush election rule’ imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize.”
  • On December 19, 2011, U.S. District Judge Amy Berman held a hearing in the lawsuit filed by the National Association of Manufacturers and other business groups challenging the NLRB’s proposed rule that would require all employers subject to the National Labor Relations Act to put up a poster advising employees of the right to join a union. The suit alleges the rule mandating the poster is unconstitutional and exceeds the bounds of the NLRB's authority. The posting rule was originally supposed to take effect on November 14, 2011, but the NLRB postponed the effective date until January 31, 2012. During the hearing on December 19, Judge Berman said she might require even more time than that to issue her opinion and requested the NLRB consider pushing back the effective date even further. Following up on Judge Berman’s suggestion, the NLRB announced on December 23, 2011, it would again postpone the effective date of the posting requirement until April 30, 2012.
  • On Wednesday, December 14, 2011, President Barack Obama announced his intent to nominate Sharon Block and Richard Griffin as members of the NLRB. Sharon Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Mr. Griffin is the General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.
  • The departure earlier this year of NLRB Chair Wilma Liebman and the December 31, 2011 expiration of Craig Becker's recess appointment leaves the NLRB with just two members, one short of the necessary three-person quorum. If the Senate fails to act on any President Obama’s nominees, or if President Obama fails to make a recess appointment, the NLRB will be crippled.

If nothing else, given the above developments and the fact we elect a president in 2012, the new year will be an interesting one for NLRB watchers.


Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.