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Ex-employees: Gone but not forgotten Courts’ broader definition of ‘employee’ expands your liability

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in Discrimination and Harassment,Employment Law,Firing,FMLA Guidelines,Hiring,Human Resources,Office Management,Records Retention

Who are your employees? Seems like a pretty simple question. But, as in several aspects of employment law, the answer may surprise you.

Two recent court rulings illustrate how, in some instances, former employees can claim the same rights as current workers. Reason: Courts are accepting a broader interpretation of the term "employee" under Title VII, the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act and other laws.

Case 1: FMLA: Don't base rehiring decision on past use of leave

A service rep at BellSouth, who took FMLA leave while employed there, resigned from his job but then reapplied about three months later. A BellSouth manager reviewed the former employee's file and saw it was marked, "Not eligible for rehire."

The manager called a supervisor to find out why. Her notes from that conversation painted a sorry picture of the ex-worker, saying he "took a lot of FMLA, attendance bad, work ethic bad, abusive, temperamental." As a result, the company didn't rehire him. He sued, alleging violations of the FMLA.

A federal appeals court sided with the former worker, saying BellSouth can't treat his past use of FMLA leave as a negative in hiring decisions. The fact that BellSouth refused to rehire this person based on FMLA usage qualified him as an "employee" under the FMLA, and gives him standing to sue.

The court said if companies could retaliate against ex-workers for taking FMLA leave, it would "chill employees' willingness to exercise their protected leave rights." (Smith v. BellSouth Telecommunications Inc., 11th Cir., No. 00-15708, 2001)

Advice: Scrutinize the language you use to describe reasons for termination or for refusing to rehire, and make sure it's free of any discriminatory rationale. While you don't have to walk on eggshells when documenting clear-cut, performance-related causes for firings or rehirings, you need to steer clear of including lawful workplace rights in your reasons. One poorly chosen phrase in an employee's personnel file or work-record conversation can come back to haunt you.

Case 2: ADA: It can cover former staff, too

Upon advice from his doctor, a 30-year employee of Kmart stopped working due to his mental illness and started receiving long-term disability benefits. Under Kmart's plan, employees disabled due to a mental illness got salary replacement benefits for up to two years. Employees disabled due to a physical illness were eligible for benefits until age 65. The employee sued, claiming that different benefit levels were discriminatory under the Americans with Disabilities Act (ADA). Kmart countered by saying he didn't have a case because former employees aren't covered under the protective tent of the ADA.

But the 11th Circuit Court of Appeals said former employees can be covered by the ADA in this context. It pointed to a 1997 Supreme Court ruling (Robinson v. Shell Oil Co.) that said ex-employees could sue their former companies under Title VII. And because the definition of "employee" in the ADA came from the definition in Title VII, ex-employees may be protected. (Johnson v. Kmart Corp., 11th Cir., No. 99-14563, 2001)

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