June 13 Tip of the Week

“Words Matter”

On June 1, 2022, the Seventh Circuit Court of Appeals granted the appeal of an employee who alleged that his Family and Medical Leave Act (“FMLA”) rights had been violated, even though the employee was never denied FMLA leave.  This case is a great reminder to employers everywhere that words matter when responding to employee requests and dealing with difficult employee issues. 

We often think of words as providing the “smoking gun” in a discrimination case, where a stray remark is made to an employee, about an employee, or simply in a joking and jovial manner.  Many a case of employment discrimination in hiring has been lost on the basis of the hiring manager stating that the employee is “not a good fit.”  The EEOC and state human rights agencies often view “fit” as a code word for discrimination – meaning, in other words, that the individual seeking to be hired is not like us and therefore does not fit in to our organization.  Employers, through their diversity and inclusion training, remind employees of the need to maintain an open and respectful work environment in an effort to combat these types of concerns. 

The Seventh Circuit Court of Appeals decision in Ziccarelli v. Dart, No. 19-3435 (7th Cir. Jun. 1, 2022), underscores the importance of weighing our responses to employees when they seek to exercise their rights under the law.  The case involved an employee of the Cook County Sheriff’s office who was seeking to use FMLA leave that had already been granted to him due to his own serious health conditions.  Ziccarelli was a frequent user of FMLA leave during his career in the Sheriff’s Office and had been terminated and reinstated when he gave character testimony on behalf of a criminal defendant.  Ziccarelli challenged his termination on the grounds of the First Amendment and was reinstated by a court of law.  Ziccarelli was seeking treatment for post traumatic stress disorder and was planning to use his paid sick and vacation leave, as well as the remainder of his FMLA leave, to complete the treatment.  When Ziccarelli spoke with the Sheriff’s FMLA administrator, he was told that he should not take any more FMLA leave and that, if he did, he would be disciplined.  Ziccarelli then chose to retire from the Sheriff’s Office and filed suit against his employer for a violation of his FMLA rights. 

In granting Ziccarelli’s appeal of the lower court’s grant of summary judgment to the employer, the court credited Ziccarelli’s account of his conversation with the FMLA administrator, even though the administrator’s recollection of their conversation differed greatly from Ziccarelli’s.  In overturning the summary judgment for the employer, the court stated “[w]e hope this opinion will help clarify that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.” 

What does this mean for employers in general?  When an employee seeks to exercise their rights under the law, whether it be the right to take FMLA leave or the right to take leave due to COVID, an employer must tread carefully when evaluating the employee’s request.  A quick denial or any attempt to dissuade or interfere with the employee’s rights to those benefits can result in liability if the employee challenges the employer’s actions. 

When faced with these types of difficult employee situations, it is easy to become frustrated and to engage in conduct with the employee that can be misread or lead to negative conclusions regarding the employer and its willingness to comply with the law.   Proper documentation and clear policies that affirm an employer’s commitment to compliance are essential in combatting such claims.  Please reach out to us at myHRcounsel and we can assist you in navigating these difficult situations in a manner that will help you avoid liability.