United States Court of Appeals for the Third Circuit Rules in Favor of Nursing Home on Judicial Estoppel Argument in FMLA case

In an opinion filed March 29, 2012 the Third Circuit found that judicial estoppel was invoked where the Plaintiff indicated to the disability carrier that he was unable to perform the essential functions of his job in an effort to collect benefits while at the same time arguing to the employer and subsequently to the Court that he was fit to return from FMLA leave.   The Plaintiff filed for disability insurance while on FMLA leave, attempted to return from FMLA leave “with restrictions” but continued to collect disability benefits for two months following the expiration of his leave.   He subsequently claimed that he was denied reinstatement to the same or a comparable position when he showed up still not able to perform his job.

When the Plaintiff failed to return to work after the expiration of his leave, the Nursing Facility terminated him in accordance with their internal policies.   The Plaintiff showed up at work with a note indicating that he could not return to his job in a full time capacity until two months later.  When the employer indicated that he would not be reinstated, he contacted his physician for a release.   A new note was submitted indicating that he was able to return to his job “with restrictions”.     Based upon the type of position that the Plaintiff held, Maintenance Director, it was decided that he could not return to his position with restrictions as his responsibilities included lifting, pushing and pulling.  He was terminated that day.

The court used past precedent to require that the two conflicting positions of the Plaintiff be reconciled. The Plaintiff may not simply disavow a prior claim of total disability, perform an about face and assert that he is qualified.  He is required to proceed from a premise that his previous assertion of an inability to work was true.  

The Plaintiff argued that it was the Nursing Home that informed him that he was unable to do his job or return to work, yet the evidence showed that a statement was submitted by his physicians monthly on his behalf to the insurance carrier indicating that during the months after his FMLA, he was in fact not able to perform the material duties of his regular occupation. 

The Nursing Home was successful in defending itself against this claim under the Family Medical Leave Act.   Prepare your facility to defend itself against FMLA claims by implementing the necessary policies and procedures in accordance with the regulation, documenting all employee communications, tracking FMLA leave, following up with employees on leave and informing them of the consequences of not returning from leave.  

               

District Court Issues Opinion on NLRB Notice Posting Requirements

On March 2, 2012 the U.S. District Court for the District of Columbia issued a 46 page opinion responding to separate actions brought by the National Right to Work Legal Defense and Education Foundation and the National Association of Manufacturers.   You may recall from previous blog postings that the actions were brought in response to the National Labor Relations Board’s Final Rule on “Notification of Employee Rights under the National Labor Relations Act”.   This Rule was divided into three Subparts.   Subpart A contained notice posting provisions.  Subpart B contained enforcement provisions and Subpart C contained ancillary provisions. 

The Notice Posting Requirement required that employers post an eleven-by-seventeen inch poster alerting employees to their rights to organize under a union, form a union, join a union, assist in a union, bargain collectively as a union, discuss wages and benefits with co-workers or a union, strike, picket, or make the choice to “not” do any of these activities.  Employers would also be required to post a translated notice where 20% or more of the workforce is not proficient in English and to post the notice on internet sites currently used for employee communications.

The Enforcement Provisions stated that an employer’s failure to post the employee notice “may be found to interfere with, restrain or coerce employees” in the exercise of their rights guaranteed by the National Labor Relations Act.  Under the terms of the Proposed Rule, after an investigation and an attempt to persuade the employer to post the notice a formal complaint could be issued, triggering a hearing before an Administrative Law Judge.   Under the new rule, the employer would be ordered to cease and desist the unlawful conduct. The employer could also face additional remedies.   As part of this Subpart, the Board would be able to toll the statutory six month statute of interpretations for an employee who has filed a complaint and consider and employer’s knowing and willful refusal to comply as evidence of unlawful motive. 

The court held that the NLRB properly issued Subpart A of the rule requiring private sector employers to post the notice informing employees of their rights and can consider and employer’s knowing and willful failure to post the notice as evidence of unlawful notice.   However, the court also held that the NLRB cannot issue a rule automatically deeming an employer’s failure to post the notice as an unfair labor practice and cannot equitably toll the statute of limitations in unfair labor practice actions against employers who opt not to post.   Any case brought against an employer for not posting the notice must be decided on the individual facts and circumstances in each case. 

It is not known if either side will appeal the court’s ruling so as of now - Private sector employers are required to post the required notice in the workplace by April 30, 2012.   Posters can be ordered or downloaded from the NLRB website. The development of Employer Right’s Posters, countering the required NLRB posters, are a service offered by Capozzi & Associates.   Contact our firm for more information.