March 2008 Archives

March 31, 2008

March Madness: The Big Dance Costs Employers Big Dollars

March Madness -- the unofficial name for the NCAA basketball tournament that actually extends into April -- has descended on the American workplace. And apparently, lots of us (more than 37 million, in fact) have spent plenty of work hours completing our brackets for the office pool, according to the outplacement firm Challenger, Gray, and Christmas.

When the Challenger firm added up all the hours spent on office pools, researching teams (so we can win those pools), talking about the games with coworkers, and actually watching the games while at work, they estimated that American employers would experience $1.7 billion in lost productivity (.pdf) for the 2008 hoops tournament.

How can this happen? Of course, plenty of managers are also fans, right in there with the rest of us placing bets and checking scores. For those employees who work in less sports-friendly environments, CBS sports offers a "boss button," which employees can use to switch their screen from live action to a spreadsheet. There could be trouble if the boss actually stops to chat, however: The spreadsheet purports to log products consumed during sporting events in 2006, including pork rinds, pizza, beer, and cough syrup.

Lisa Guerin

March 18, 2008

Substance Abuse Not a Serious Health Condition

A recent Seventh Circuit case distinguishes substance abuse from treatment for substance abuse in determining whether an employee has a serious medical condition under the FMLA. In Darst v. Interstate Brands Corporation (available here), the employee, an alcoholic, suffered a relapse and sought treatment at a hospital. Although he first contacted the hospital on July 29, he wasn't admitted until August 4. In the interim, he missed three days of work.

The employee's medical certification form (similar to the WH-380) was completed by the treating physician, who certified that the employee had a serious health condition involving "absence plus treatment." For the approximate date the condition commenced, the doctor wrote, "'7/29-8/11. Return 8/14.'" But this didn't match what appeared on an insurance-related form, and the employer called the hospital to reconcile the difference. Discovering that the employee wasn't admitted to the hospital for those three days, the employer didn't count them as FMLA-protected, and under its "point" system for absences, his employment was terminated.

The Seventh Circuit found for the employer, rationalizing, "absence because of the employee's use of substance, rather than for treatment, does not qualify for FMLA leave." The employee didn't provide any further explanation for the three-day absence, other than treatment of alcoholism, so the court determined the employer was within its rights to fire the employee.

There's another important point to this case that's easy to miss: the employer discovered the error by violating the FMLA when it contacted the hospital directly. At most, the employer was entitled to have its health care provider contact the employee's health care provider. The court recognized the error, but further determined that the FMLA didn't provide a remedy because the action didn't interfere with the employee's exercise of FMLA rights.

Since this case was decided, the FMLA regulations have changed to allow employers to make direct contact with employee health care providers, in certain circumstances. To learn more about the new rules, see Nolo's article New FMLA Regulations Change Rules on Notice and Certifications.

Alayna Schroeder

March 12, 2008

Workplace Bullying: Harmful but not Illegal?

A new study by two Canadian researchers reveals that employees have a more difficult time coping with "workplace aggression" -- bullying -- than sexual harassment because they are unprotected by laws or policies, and have nowhere to turn. The study defined workplace aggression to include "incivility, including rudeness and discourteous verbal and non-verbal behavior."

At least one state is doing something about workplace bullying. A bill being considered by the Connecticut legislature would specifically prohibit employers from subjecting an employee to an abusive workplace or retaliating against an employee for making a charge that he or she has been subject to an abusive workplace.

But even without a law specifically prohibiting workplace bullying, many employers can and do offer their employees protection through broad harassment policies. Workplace bullying can fall within the definition of a hostile work environment ("sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment"). And the requirement that such conduct be "based on" sex or another protected characteristic doesn't mean it must be sexually motivated. Instead, acts of bullying that are rooted in racial animosities, sexual stereotypes, prejudices against persons with disabilities -- all can create a hostile work environment. Employers shouldn't wait for a law telling them that bullying is illegal before acting in an instance when bullying is harassment.

Alayna Schroeder