A recent decision by the U.S. Court of Appeals for the Fourth Circuit highlights the importance of proper notice to employees of their rights and responsibilities under the Family and Medical Leave Act (FMLA). (Vannoy v. Fed. Reserve Bank of Richmond, 4th Cir., No. 14-2375 (6/28/16)). In that case, the plaintiff, who suffered from major depression and alcohol dependency, sought medical leave from his employer under the FMLA to attend an in-patient treatment program. While the employer granted the leave, its notice to the plaintiff of his rights and responsibilities lacked a critical component: information concerning job protection rights.

That failure alone would not have been actionable, but the plaintiff also alleged that because he did not know of those rights, he returned to work before his FMLA leave expired and was not able to complete an in-patient treatment program. Because the employer did not include that crucial information about job protection rights in its FMLA notice, and because the plaintiff was actually prejudiced by that omission, the Court of Appeals concluded that the plaintiff could go to a jury on his claim against the employer for interference with his rights under the FMLA.

Employers should note that this lawsuit was readily preventable: if the employer in this case had regularly reviewed its form notices regarding medical leave to ensure that the notices remained compliant with applicable law, the plaintiff would likely never be able to go before a jury on his claim for FMLA interference.

The U.S. Court of Appeals for the D.C. Circuit reaffirmed the expansive definition of “disability” under federal laws prohibiting disability discrimination in reversing summary judgment in favor of the employer, a municipal transit authority. (Alexander v. Wash. Metro. Area Transit Auth., D.C. Cir., No. 15-7039 (6/24/16)).

The plaintiff struggled with alcoholism throughout his life. While working for the transit authority, he tested positive for alcohol, and was referred to the in-house employee assistance program. Later, he tested positive for alcohol at work a second time, and he was terminated, but was told that he could apply for employment after a year if he completed an alcohol dependency treatment program. The plaintiff did so, and applied to be rehired a year later, but the transit authority rejected his application.

The lower court dismissed the plaintiff’s claims of disability discrimination, finding that his alcoholism did not “substantially limit” his major life activities. On appeal, however, the D.C. Circuit stressed that the definition of “disability” has, in fact, three variations: an impairment that substantially limits major life activities, a record of such an impairment, or an employer who regards an individual as having a disability. The lower court’s analysis applied too demanding a standard to plaintiff’s allegations, the D.C. Circuit concluded, and the case was remanded for a jury to decide whether the plaintiff was disabled or regarded as disabled by the transit authority.

This decision emphasizes that even if an employee does not currently have a documented disability, employers could still face a suit for disability discrimination where they perceive—and treat—an employee as disabled.

In a recent case out of the U.S. Court of Appeals for the Fifth Circuit, a plaintiff applied for a position with the school district, but failed to disclose three felony convictions for drug-related offenses. (Rogers v. Pearland Indep. Sch. Dist., 5th Cir., No. 14-41115 (6/28/16)). The school district’s hiring procedures included an opportunity for an in-person meeting with any applicant to discuss that applicant’s criminal history, and felony convictions did not serve as an automatic bar to employment. However, the school district decided not to hire the plaintiff because he failed to disclose his criminal history. Later, when he applied for a different position, the school district decided once again not to hire him, citing his previous lack of candor and the severity of his criminal offenses. The plaintiff brought suit against the school district for discrimination based on race, alleging that a similarly situated applicant—a white man who failed to disclose a prior felony conviction—was hired, while the plaintiff was not.

In its decision to dismissing the claim, the Court of Appeals noted the difference between the white applicant’s criminal record, which consisted of a single felony conviction, and the plaintiff’s criminal record, which included multiple felony convictions. The fact that the school district did not bar all applicants with criminal convictions as a rule, and instead performed an individualized inquiry that generated substantial detail on each applicant, served as a legal basis for the employer to refuse to hire the plaintiff.


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