Editor: Julie Athey

Terminating employee for FMLA abuse violated NLRA

It should come as no surprise to most HR professionals that the FMLA can interact with other federal (and state) employment laws in many complicated and unexpected ways. The most visible of those laws is the ADA, as demonstrated by the sizeable percentage of our articles that address the overlap between that law and the FMLA. Other, less obvious federal laws also crop up frequently in lawsuits involving alleged FMLA violations - including, for example, Title VII's pregnancy discrimination provisions and the Age Discrimination in Employment Act.

FMLA Manual Reference

Chapter Twelve: FMLA's Relationship to Other Laws

The case discussed in this article, however, is a new one for me. It involves a recent decision from the National Labor Relations Board (NLRB), which held that an Atlantic City casino violated the National Labor Relations Act (NLRA) when it terminated an employee for misuse of FMLA leave.

Now I can envision many HR professionals' eyes glazing over at the mention of the NLRA. Those of you who do not have a unionized workforce are likely thinking that this case holds no lessons for you. That could not be further from the truth. In fact, the casino whose FMLA procedures got them into trouble with the NLRB wasn't unionized either.

So, do I have your attention now? Good, because this is a very interesting case and one that holds more than one important lesson for employers.

Background on the NLRA

The NLRA is the federal law that governs labor relations in private companies. The vast majority of private employers and their employees are covered by the NLRA. Employees who work for a covered employer have the right to organize a union and to engage in "concerted activities for mutual aid and protection." Employers are prohibited from interfering with those rights or retaliating against employees who exercise them.

The right to engage in concerted activities extends to all employees, regardless of whether they are members of a union, work in a unionized workplace, or work for an employer that is the subject of a union organizing campaign. "Concerted activities" is defined broadly to include:

  • Two or more employees clearly acting together - such as a staged walkout or group complaint, or
  • One employee taking an action on behalf of a group of employees as a whole rather than for purely personal reasons - such as calling a governmental agency or otherwise complaining about violations of workplace laws.

For example, concerted activity occurs when: 1) Two or more employees join together to complain that they have been misclassified as exempt from overtime under the FLSA; or 2) a single employee complains about such misclassification on behalf of a group of employees. However, an employee who complains solely about her own misclassification is not engaged in concerted activity.

Facts of the case

Jose Justiniano worked as a table game dealer at Bally's Casino in Atlantic City. In 2007, the United Auto Workers (UAW) was attempting to organize dealers at various Atlantic City casinos, including Bally's. Justiniano openly supported the union by speaking to other employees about the need for union representation and signing an authorization card, among other things.

On March 31, Justiniano was scheduled to work from 12 noon until 8 p.m. Early that morning, he provided notice to Bally's that he needed the day off to care for his 13-year-old daughter, who suffered from severe asthma that required treatment every four hours. However, he did not actually need to care for her until 12:30 p.m., 30 minutes after his shift was to start.

Later that day, the UAW conducted a rally outside a neighboring casino as part of its campaign to organize Atlantic City's casino dealers. The rally lasted from about 10:30 a.m. until about 12:15 p.m. Justiniano attended the rally, where he was seen by a Bally's manager. He left when it was over and arrived to take care of his daughter at 12:30 as needed.

Ten days later, Justiniano was suspended for spending 20 minutes of his shift attending the rally when he was supposedly on FMLA leave. Three days after that, he was terminated pursuant to a provision of the casino's employee handbook stating that employees "will be honest and forthcoming in all communication." He filed an unfair labor practices claim with the NLRB, alleging that Bally's terminated him in retaliation for his support of the union.

The casino responded that it would have terminated Justiniano for misuse of FMLA leave even in the absence of his union activity. Although it did not have a written policy addressing FMLA abuse or fraud, it claimed its past FMLA practices established a "zero-tolerance policy" with regard to misuse of leave. In fact, it produced evidence that it had terminated nine employees after discovering that they had used FMLA leave inappropriately.

Court's decision

The NLRB didn't buy into the casino's argument. First, it disagreed with the contention that Bally's had a "zero-tolerance policy" for dealing with FMLA misuse because: 1) There was no written policy - zero tolerance or otherwise - regarding the misuse of FMLA leave; and 2) no such policy had ever been announced to employees.

Most importantly, however, the court concluded that the nine previous instances in which employees were terminated for misuse of leave were not comparable to Justiniano's situation. The other employees had requested family or medical leave, and then used the leave for improper purposes. In eight of the cases, the entirety of the requested leave was used for an improper purpose. In the ninth case, while the employee initially used the requested leave for a proper purpose - the care of her ill father - she improperly continued on leave for a month after her father died.

Based on these facts, the court concluded that, at most, the evidence established that Bally's had a practice of terminating employees who fraudulently requested or extended their FMLA leave (i.e., telling their employer that they required leave to fulfill family responsibilities or out of medical necessity and then using the leave for a completely different purpose). None of those cases was "even remotely similar to" that of Justiniano, who used his requested leave for a proper purpose except for the 20 minutes he spent at a union rally prior to caring for his daughter. In other words, he did not intentionally and fraudulently request FMLA leave for a purpose not covered by the FMLA.

The NLRB further pointed out that the only arguable misconduct was the fact that Justinano took leave for the first half hour of his 8-hour shift even though his daughter did not need care until 12:30 p.m. However, a Bally's representative testified that Justiniano would not have been terminated had he left the rally before his noon shift was to start. From this, the NLRB concluded that Bally's was perturbed not by the fact that he spent 30 minutes of his leave time doing something other than caring for his daughter, but by the fact that he spent 20 minutes of that time at the union rally. It ordered Bally's to reinstate Justiniano with back wages along with other equitable relief. Bally's Park Place, Inc., 355 NLRB No. 218 (September 30, 2010).

Lessons learned

This case demonstrates the dangers of making employment decisions that aren't supported by workplace policies previously disseminated to employees. Employers should carefully review their employment policies to ensure they fully reflect expectations for employee conduct. Once the policies are in place, they should be applied consistently to all workers. Consistency is critical in refuting an assertion of retaliatory intent, whether it's based on union activity or anything else protected by law.