Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 12/22/2024 told us former Wynn Las Vegas cocktail server awarded $321K after trial for FMLA interference. The award was by a U.S. District Court jury after a five-day trial in which she said she was wrongfully fired for abusing the company’s Family and Medical Leave Act policies. Wynn Resorts is contesting the award.
Tiara Ramirez filed suit in 2019 and the trial concluded Oct. 25, 2024. During the trial, there was testimony that Ramirez, a founding Wynn cocktail server hired in November 2008 and terminated in November 2017, attended a March 21, 2017, gender reveal party with co-workers at Town Square Las Vegas before she was scheduled to work at Wynn Las Vegas that day. But instead she called in to say she could not work and was using FMLA time off. Pictures of Ramirez at the party were posted on Facebook and showed her wearing high-heeled shoes. A Wynn employee started an investigation into the plaintiff’s potential misuse of FMLA on March 22, 2017. What happened in the investigation, and Ramirez’s medical issues, are in the post.
Wynn’s policy for cocktail servers is to wear high heels of at least 1¾ to 2 inches. By mid-September 2017, Ramirez had exhausted time off under the FMLA policy and the collective bargaining agreement through her union. After concluding the investigation, Wynn fired Ramirez on Nov. 2, 2017. The reason they gave is noted in the post.
The jury said Ramirez proved her claim that Wynn interfered with her FMLA rights when it fired her. What else the jury found is in the post. She was awarded $321,200; how that was divided up is noted in the post.
Wynn’s statement as to the basis on which it will appeal is also in the post.
TAKEAWAY: Know your obligations as an employer under the FMLA.
The post on Monday 12/23/2024 taught that only incurred expenses may be excluded from overtime calculations, DOL says. The Nov. 8 opinion letter concerns a “tricky” area of wage-and-hour compliance. DOL said that employers may not exclude from an employee’s regular rate of pay any payments made to them as reimbursement for certain expenses if the employee does not actually incur those expenses. The letter was written in response to an oil and gas industry employer’s inquiry about tool and equipment reimbursements the company made to inspectors. The facts provided are in the post. DOL said that reimbursement payments must be “reasonably approximate” to the employee’s actual incurred expenses, and if employers do pay inflated reimbursements, they can still exclude the “reasonably approximate amount” of incurred expenses from the regular rate while including the remaining amount.
Why does this matter? Because it is in relation to certain kinds of per diem payments made to employees and whether the Fair Labor Standards Act allows those payments to be excluded from the regular rate of pay that is used to calculate overtime pay. This opinion letter is a good reminder to employers of the principle noted in the post.
The 9th U.S. Circuit Court of Appeals had held in a 2021 decision that the FLSA may require employers to include certain per diem payments in employees’ regular rate of pay. What that case dealt with is in the post. The 9th Circuit held that those payments were improperly excluded.
TAKEAWAY: It is imperative that employers know how to properly pay employees. Contact an employment lawyer if unsure.
The post on Tuesday 12/24/2024 asked: is putting employee on PIP 3 months after FMLA leave retaliatory? What Do You Think?
FMLA retaliation suits often boil down to whether the employee can poke holes in an employer’s stated valid reason for firing (or other adverse action taken against) the employee. A good example is this case involving an employee who did marketing for a private university as it highlights the types of evidence that can shift the case one way or the other.
The employee started working for the school around October 2016. In December 2016, her supervisors emailed each other that they continued to worry about her job performance (the specifics of which are in the post). In January 2018, the employee requested FMLA leave; it was eventually granted. In May, three and half months after her FMLA leave was granted, the supervisors placed her on a performance improvement plan. She sued the university for FMLA retaliation.
What an employee (as plaintiff) is required to show for a prima facie case of FMLA retaliation when there is no direct evidence of retaliation is listed in the post. Once the employee does that, the employer may defend itself by showing that it had a legitimate, non-retaliatory reason for taking the adverse action. Then the employee must show that the employer’s stated reason is a pretext for retaliation.
So did the employee here show the stated reason for the PIP was pretext for retaliation?
1. Yes. She was placed on the PIP less than four months after requesting leave.
2. No. Her supervisor’s concerns were well-documented and predated her PIP.
The Court ruled in favor of the employer. It said that the only evidence of pretext was the closeness in time between her FMLA request and the imposition of her PIP. Why the court said temporal proximity was insufficient is explained in the post. In its discussion the court noted that the employee argued that her supervisors did not accurately perceive her performance. How the court dealt with that is also in the post. In the end, the federal appellate court affirmed.
TAKEAWAY: Documenting early and often can save the day – clearly take note of employee performance and deficiencies to support any adverse action.
The posts on Wednesday 12/25/2024, here and here, wished you a Merry Christmas and Happy Hanukkah! The post was also a reminder to those who live in a condominium or homeowners’ association about holiday decorations – see the post.
TAKEAWAY: Holiday celebrations are great, but residents must abide by any restrictions in their condo or HOA.
In the post on Thursday 12/26/2024, here and here, we again celebrated and wished you Happy Kwanzaa! We also issued the same reminder to residents of homeowner and condominium associations about holiday decorations – see the post.
TAKEAWAY: Let’s repeat: holiday celebrations are great but abide by any restrictions in your condo or HOA.
The post on Friday 12/27/2024 told us DOL says FMLA covers time off for clinical trials. There are no specific criteria to be met for a treatment to qualify an employee for FMLA leave. This came down in a Nov 8 opinion letter.
An unnamed organization that is working to find a cure for a disease that can be long-term and severe asked that DOL opine on potential coverage because patient concerns about taking time off work were hindering participation in clinical trials. DOL was clear that FMLA leave is appropriate for the treatment of an employee’s own serious health condition, even if treatment is part of a clinical trial. More details on how DOL explained it are in the post. And the voluntary nature of trial participation does not affect FMLA eligibility. And there was one thing you might not think about that DOL also pointed out – see the post.
TAKEAWAY: As with every other law, employers must know to whom, and for what purposes, the FMLA applies. Contact an employment lawyer.
Finally, in the post yesterday 12/28/2024, we learned that DOL fines logistics company for failing to include bonuses in overtime rates. Overtime miscalculations are very common as noted by DOL in mid-November. The fine was for more than $56,000 (what that covers is in the post). DOL said Liberty Hill Equity Partners LLC, operator of two Precision Vehicle Holdings locations, failed to include nondiscretionary bonuses in employees’ regular pay rates. This affected 234 employees. How DOL found the violation is in the post.
FLSA regulations differentiate between discretionary bonuses (defined in the post) and nondiscretionary bonuses (also defined in the post). The latter must be included in an employee’s regular rate of pay even if the employer has the option not to pay the promised bonus (with another possible exclusion as noted in the post). DOL has overtime compliance documentation on its website (with al ink in the post).
TAKEAWAY: Proper calculation of overtime due is so important – do it right at the outset to avoid more expense down the road.
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