The 6th Circuit Court of Appeals has held that the Family Medical & Leave Act (“FMLA”) expressly permits an employer to enforce its usual and customary notice and procedural requirements for requesting leave.  The decision in Srouder, et al v Dana Light Axle Manufacturing LLC, ___ F3d ___ (6th Cir 2013) was released yesterday and notes that the court’s previous decision on this issue in Cavin v. Honda of America Manufacturing Inc, 346 F3d 713 (6th Cir 2003) was effectively abrogated by subsequent revisions to the Act.

The plaintiff, Matt White, was reportedly terminated for failing to follow the call-in requirements of the defendant’s attendance policy.  He sued, alleging interference with his FMLA rights.  The district court ruled in favor of the defendant employer.  Plaintiff appealed.
 
The 6th Circuit framed the issue on appeal as, “whether an employer may impose and enforce its own internal notice requirements, even if those requirements go beyond the bare minimum that would generally be sufficient under the FMLA to constitute proper notice.”  The court immediately noted that it had previously addressed this
question in Cavin, supra, and that at that time, the relevant portion of the FMLA provided as follows:

The court had therefore held that an employer cannot limit his employee’s FMLA rights by denying them where an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA. 

The court noted, however, that due to material revisions in 2009, the above-referenced regulatory language is
no longer in effect and that the regulation now reads in relevant part as follows:

Based upon these revisions, the 6th Circuit Court of Appeals held that the FMLA expressly permits an employer to enforce its usual and customary notice and procedural requirements for requesting leave.  Noting that the plaintiff had not produced any evidence of the type of “unusual circumstances” that would have justified his failure to follow his employer’s usual and customary notice and procedural requirements for requesting leave, it
therefore affirmed the district court’s grant of summary judgment for the defendant.

- Disclaimers - 

The Michigan Supreme Court has ruled that the Whistleblowers’ Protection Act (“WPA”) neither addresses an employee’s primary motivation, nor implies that it is even an element in establishing a WPA claim against an
employer.  The decision was released yesterday in the case of Whitman v City of Burton, ___ Mich ___, ___ NW2d ___ (2013).
 
Whitman was the city’s Chief of Police.  He filed his WPA claim against the city when the mayor declined to reappoint him.  Whitman claimed that the mayor’s decision in that regard was due to Whitman’s complaints that the city’s refusal to pay him for his accumulated, unused sick & personal leave time violated a city ordinance.
 
The trial court ultimately ruled in Whitman’s favor.  The Court of Appeals, however, reversed in a split, published opinion.  Whitman v City of Burton, 293 Mich App 220; 810 NW2d 71 (2011).  Importantly, the Court of Appeals decision was based upon: a) its observation that Whitman’s motivation for bring his WPA claim was
merely to advance his own financial interests; and (b) its interpretation of Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604 (1997) – which it understood to require “good faith” and “a desire to inform the public on matters of public concern” to successfully maintain a WPA action.  In short, the Court of Appeals found that Whitman lacked the “altruistic motive of protecting the public.”
 
The Michigan Supreme Court wasted no time going to the heart of the matter in its opinion. It held:

The court proceeded clarify its holding in Shallal, and characterized as dicta any language that has been interpreted to require a specific motive as an element of a WPA claim.  Noting that Shallal knew that she was going to be fired before she threatened to report her supervisor, it stated that, “. . . it was because Shallal’s prior knowledge of her impending termination incited her subsequent threat to report Quinn that this Court held that no reasonable juror could conclude that Shallal’s threat was causally connected to her firing.”  In other words, Shallal could not establish that her protected activity caused her termination.
 
The Supreme Court in Whitman therefore reversed the Court of Appeals and, noting that the appellate court had not addressed the causation issue, remanded the case for resolution of whether the trial court’s denial of the city’s motion for JNOV was proper.
 
 
– Disclaimers – 

The 6th Circuit Court of Appeals held yesterday that the Michigan Medical Marihuana Act ("MMMA"), MCL 333.26421, et seq., does not regulate private employment.  The ruling in Casias v Wal-Mart Stores Inc, ___ F3d ___ (6th Cir 2012) affirmed the district court's dismissal of the plaintiff's case.

Plaintiff was diagnosed with cancer and was prescribed various pain relief medications by his oncologist.  Subsequent to the passage of the MMMA, the oncologist recommended that the plaintiff try marihuana to alleviate his pain.  The Michigan Department of Community Health reportedly issued the plaintiff a registry card and, in accordance with Michigan law, he began using marihuana to manage his pain.  Plaintiff maintained that "he complied with the state laws and never used marijuana [sic] while at work; nor did he come to work under the influence."  Instead, he "used his other prescription medication during the workday and only used the marijuana [sic] once he returned home from work."

Following a work-related injury, the plaintiff was taken to the hospital by a Wal-Mart manager and, pursuant to the company's drug use policy for employees, was administered a standard drug test.  Plaintiff showed his registry card to the testing staff prior to his drug test to establish that he was a qualifying patient for medical marihuana under Michigan law.  As would be expected under the circumstances, he tested positive for marihuana.  He was thereafter terminated for violating the company's drug use policy.

Plaintiff sued Wal-Mart in state court, contending that it violated the MMMA because the statute prevents a business from engaging in disciplinary action against a card holder who is a qualifying patient.  He also asserted a wrongful discharge theory, arguing that his discharge was contrary to public policy.  Following Wal-Mart's removal of the case to federal court, the district court dismissed the case.  It held that "the MMMA does not regulate private employment; [r]ather the Act provides a potential defense to criminal prosecution or other adverse action by the state."  The court also held that the MMMA "does not protect Plaintiff's right to bring a wrongful termination action because the MMMA does not regulate private employment."  Plaintiff appealed.

The 6th Circuit Court of Appeals affirmed the district court's dismissal of the plaintiff's case, and specifically its conclusion that the MMMA "contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses."  (Emphasis supplied.)  The court held that the word "business," as it is used in MCL 333.26424(a), refers to a "business" licensing board or bureau and that the statute, "is simply asserting that a 'qualifying patient' is not to be penalized or diciplined by a 'business or occupational or professional licensing board or bureau' for his medical use of marijuana [sic]."  Accordingly, it held that the MMMA does not impose restrictions on private employers, such as Wal-Mart.  The court also noted that acceptance of the plaintiff's public policy theory, "could potentially prohibit any Michigan business from issuing any disciplinary action against a qualifying patient who uses marijuana [sic] in accordance with the Act," and that "[s]uch a broad extension of Michigan law would be at odds with the reasonable expectation that such a far-reaching revision of Michigan law would be expressly enacted."

Disclaimer

The Sixth Circuit Court of Appeals has held that Michigan law does not recognize a public policy cause of action for an employer's wrongful refusal to rehire because an individual claimed unemployment benefits.  The opinion was rendered in Berrington v Wal-Mart Stores Inc, ___ F3d ___ (6th Cir 2012) on August 30, 2012.

Plaintiff reportedly failed to return from a leave of absence that had been approved through April 30, 2007.  He was thereafter advised that based upon store policy, he would be terminated for not returning to work at the end of his leave, but that he could be rehired after ninety days.

Plaintiff thereafter applied for unemployment benefits through the State of Michigan which he ultimately received, although his application was opposed by the defendant.  During the course of the dispute, Plaintiff reapplied for employment with Defendant, but was not offered a position.  He then reapplied a second time, again without success.  The opinion notes that following August 2007 (i.e., roughly ninety days after the termination date), the store from which the plaintiff had been terminated hired a number of employees to positions for which the plaintiff was qualified.

Plaintiff thereafter filed a circuit court action against the defendant claiming that it violated Michigan public policy by refusing to rehire him because he had filed for unemployment benefits.  Defendant successfully removed the case to federal court based upon diversity jurisdiction, and moved to dismiss the complaint.  Noting that the plaintiff's legal theory "may ultimately be validated by a Michigan state court," the district court nevertheless ruled in defendant's favor, concluding that since, "[n]either the Michigan Supreme Court nor the Michigan Court of Appeals have indicated any willingness to expand the wrongful termination public policy exception to the employment-at-will presumption to the hiring or rehiring context . . . this Court has no basis to find that Michigan state courts would recognize Berrington's cause of action."  Plaintiff appealed.

The Sixth Circuit Court of Appeals affirmed the district court's dismissal.  It observed that "[t]he common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship.  An employee's right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds."  [Emphasis added.]  Noting that federal courts sitting in diversity cases are poorly situated to endorse fundamental policy innovations, the Court concluded by stating that, "[w]ithout any indications from binding or persuasive authority that Michigan courts are prepared to recognize a private claim for wrongful failure to rehire, however, even if we were inclined to accept Berrington's rationale, our precedent requires us to refrain from doing so on behalf of the Michigan Supreme Court."

Disclaimer

The Sixth Circuit Court of Appeals held last week that requiring an employee to undergo psychological counseling as a condition of continued employment may constitute a medical examination that violates the Americans With Disabilities Act.  In Kroll v White Lake Ambulance Authority, ___ F3d ___ (6th Cir 2012), the plaintiff was an emergency medical technician who reportedly "showed on-the-job distress over an affair with a married co-worker, principally through several outbursts at work."  According to the opinion, one of those alleged outbursts occurred while the plaintiff was "driving a vehicle loaded with a patient . . . [in] emergency status with lights and sirens."  Various employees allegedly expressed concern about the plaintiff's well being to her supervisor and to the company's office manager.  At some point, the employer reportedly instructed the plaintiff to attend "counseling" as a condition of her continued employment.  When she refused, her employment was reportedly terminated.  She sued & alleged various theories of liability, including but not limited to violations of the ADA.

The district court ruled for the employer, "concluding that 'counseling alone does not constitute a medical examination under the ADA' and that, therefore, [the employer's] requirement that Kroll attend counseling as a condition of continued employment was not governed" by the ADA.  Plaintff appealed.

The central issue on appeal was whether the counseling that Kroll was instructed to attend constituted a "medical examination" under 42 USC § 12112(d)(4)(A).  The ADA prohibits employers from "requiring a medical examination" or "mak[ing] inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity."

The Sixth Circuit applied the "seven-factor test" articulated in the EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees and held that the counseling that the plaintiff was required to attend did indeed constitute a "medical examination" for purposes of the ADA.  Finding the third factor particularly relevant, it held that "a reasonable jury could conclude  that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect."

The Court concluded its opinion by observing that the employer "may still be entitled to summary judgment if such counseling was 'job related' and consistent with 'business necessity.'"  Since that issue had neither been decided by the district court nor briefed on appeal, the case was remanded for a decision in that regard.

Disclaimer

Michigan's Fair & Open Competition in Governmental Construction Act (Public Act 98) became law in 2011. It essentially prohibited governmental units from requiring non-union companies to agree to project labor agreements ("PLAs") in order to work on a project. A PLA is a "pre-hire agreement between a construction project owner and a union or unions that a contractor must agree to before accepting work on the project and that establishes the terms and conditions of employment for the project." Proponents of the law argued that PLAs discriminate against non-union contractors by essentially forcing them to join the union in order to work on a project.

The U.S. District Court for the Eastern District of Michigan, Southern Division, enjoined enforcement of the statute on February 29, 2012. In her order, Judge Victoria Roberts held that Michigan's statute interfered with the comprehensive regulatory scheme established by the National Labor Relations Act and was preempted. Consequently, governmental units may again fund projects that require contractors working on the projects to sign PLAs.

Michigan Attorney General Bill Schuette appealed the District Court's ruling to the U.S. Court of Appeals and filed a motion to stay Judge Roberts' order pending the outcome of the appeal. The appeal remains pending. However on May 23, 2012, Judge Roberts denied the motion to stay the ruling insofar as it pertained to the merits of the case.

Disclaimer