Let’s say that you have an employee who has always received stellar reviews – in fact was selected as employee of the year recently – but you just discovered that she has been violating the company’s overtime policy for years by not clocking out for lunch and claiming that she was directed to do so and worked at least part of her lunch period about 95% of the time and is now demanding payment. Let’s also say that in addition to this situation, she is also now asking for intermittent FMLA leave to manage her diabetes. The overtime violation is pretty serious, but does the timing of discipline relative to her FMLA request just too risky?
A company in Kansas thought not, and it’s now headed to trial. In Fritzler v. Royal Caribbean Cruises, Inc., the plaintiff was the executive assistant to the manager of a call center. Claiming that her boss told her to be available even during her lunch break, the plaintiff stopped punching out for lunch and claimed later that her lunch was interrupted about 95% of the time. This went on for years, and plaintiff wasn’t the only one doing this.
This situation apparently continued for a while until a couple of things changed. One thing that happened was that the plaintiff’s boss left and she began working for a new person. Another thing that happened was that the plaintiff then sought intermittent FMLA leave to manage her diabetes. Oh, and the third thing that happened was that the plaintiff was selected as employee of the year. The last thing that happened was that eight days after her FMLA request, the company fired her. The reason? All those years of violating company policy prohibiting working “off the clock”.
While the company took the position that it had just discovered the plaintiff’s policy violations, the Kansas federal district court didn’t buy it. Rather, it found that the defendant company knew or should have known that the plaintiff had not been clocking out for lunch, along with at least one other employee who also sometimes worked through lunch (and wasn’t discharged). Additionally, the court found that the timing of the discharge eight days after the plaintiff requesting FMLA leave was suspicious, given that the plaintiff had worked off the clock for years. The Plaintiff being named employee of the year certainly didn’t help the company’s case. In total, the court found that a fact question existed as to whether the company violated plaintiff’s rights.
Employers should take note of two things from this case. The first is that you must monitor non-exempt employee’s time to ensure that they are not working off the clock. The plaintiff’s supervisor in this case provided the plaintiff with a blackberry, which just increased the likelihood that she would work off duty. Make sure supervisors understand that it’s simply not okay for hourly employees to work outside of their normal schedule without approval and getting paid.
Secondly, although we always support an employer’s need to take action against employees who have engaged in policy violations or misconduct, it is always wise to assess the risk associated with taking that action – including the timing of the action. In hindsight it seems clear that discharging the employee of the year for working off the clock just days after she requested FMLA seems very risky, especially when another employee who engaged in similar behavior received no discipline.
