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An employee went on leave

In the case, Lisa requested time off and, after learning of the nature of the leave, the employer asked Lisa to mark a box on a leave request form next to “Family Medical Leave.” The employer, however, did not discuss the FMLA with Lisa. Soon, the employer mailed Lisa a letter advising her that her leave was designated as FMLA leave and explained her rights under the law.

Lisa went on leave, but it ran for more than the allotted 12 weeks of FMLA leave. When she informed her employer that she was ready to return to work, the employer told Lisa she was being terminated. The employer indicated that her position was no longer needed and that she had failed to return to work after her FMLA leave had expired.

12 weeks of what?

Lisa, however, claimed she never received that letter. She sued, arguing that the employer failed to give her notice that her leave fell under the FMLA and that she was fired in retaliation for taking FMLA leave. She claimed she didn’t know she had to return to work within 12 weeks or be subject to termination. Had she been aware of this, she said she would have returned to work sooner.

The employer argued that it properly mailed the letter to the employee; therefore, Lisa should have received it.

Mailbox rule

Under the “mailbox rule,” if a letter, properly directed, is proven to have been either put into the post office or delivered to the postal carrier it is presumed to have reached its destination in the usual time, and was received by the person to whom it was addressed. The court, however, indicated that an addressee’s positive denial of receipt can nullify this presumption of receipt. In the case, the employee denied the receipt of the FMLA notice. That was enough to allow the case to proceed to a jury.

The court also pointed out that the employee’s file included an unsigned Acknowledgement of Receipt concerning the letter.

The court opined that “… it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.”

“A strong presumption of receipt applies when notice is sent by certified mail because it creates actual evidence of delivery in the form of a receipt.” A weaker presumption arises where delivery is sent via regular mail, for which no receipt, or other proof of delivery, is generated.”

Lupyan v. Corinthian Colleges Inc., No. 13-1843, 3rd Circuit Court of Appeals, August 5, 2014.

Key to remember: Sending the FMLA eligibility/rights and responsibilities notice and the FMLA designation notice in a way that gives the employer proof of delivery to the employee can help employers avoid arguments.

Two studies

In 2022, FSIS contracted two studies to see how much faster line speeds actually impact worker safety at 17 facilities. These facilities were poultry and swine evisceration plants with line speed waivers.

During the studies, the plants submitted worker safety data. Researchers interviewed workers and analyzed footage of plant workers. They also measured muscle activity, posture, and repetition. Finally, the researchers calculated the risk of upper extremity pain and musculoskeletal injury for workers at higher versus lower speeds.

Findings

In January 2025, two final reports were sent to FSIS (here and here). They conclude:

• Workers are at greater risk of a musculoskeletal disorder (MSD) when the piece rate is higher. Piece rate is the number of animal parts a worker handles per minute.
• About 40 percent of workers in both studies reported moderate/severe pain in the last year.
• More than 80 percent of the workers were at increased risk of MSDs in the poultry study. This compared to over 45 percent in the swine study.

“Line speeds” were determined not to be the leading factor in worker MSD risk at these plants, claims FSIS. Yet, the reports offer insights into how line speeds and other factors may work together to contribute to workers’ overall risk.

Former Acting Secretary of Labor Julie Su said on January 13th, “The findings in USDA's report on worker safety in poultry and swine plants show that injuries, including chronic pain and musculoskeletal disorders are too common. These kinds of injuries often go unreported." In fact, a 2016 Government Accountability Office (GAO) report explains that OSHA faces challenges in gathering injury and illness rates for the meat and poultry industry because of underreporting.

Recommendations

All facilities are encouraged to review the two reports. Plus, FSIS advises facilities to examine their own worker safety plans, regardless of operating line speed. In this way, they may determine how they can protect their workers’ health. The reports go on to recommend that meat and poultry companies consider developing an industry-wide set of best practices that reflect input from both workers and companies. Proposed best practices include:

• Lowering the piece rate by, for example, raising the number of staff;
• Improving medical management programs to assess ongoing pain as a metric of exposure to ergonomic risk;
• Promoting a worker safety culture that encourages reporting of pain and discourages retaliation for reporting;
• Frequently sharpening, maintaining, and replacing knives and scissors; and
• Fully implementing industry specific guidelines from OSHA.

OSHA and NIOSH guidelines

Five OSHA guidelines relate to the studies:

• Best Practices for Non-Health Care Employers with On-site Health Care Services, OSHA 3160;
• Ergonomic Program Management Guidelines for Meat Packing Plants, OSHA 3123;
• Prevention of Musculoskeletal Injuries in Poultry Processing, OSHA 3213;
• Safety and Health Guide for the Meatpacking Industry, OSHA 3108; and
• Poultry Processing Industry eTool.

NIOSH recommendations offer more:

• Evaluation of Musculoskeletal Disorders and Traumatic Injuries Among Employees at a Poultry Processing Plant, HHE 2012-0125-3024;
• Evaluation of Ergonomic Risks, Musculoskeletal Disorders, and Peracetic Acid Exposure Among Employees at a Pork Processing Plant in Michigan, HHE 2021-0117-3397; and
• Evaluation of Carpal Tunnel Syndrome and Other Musculoskeletal Disorders among Employees at a Poultry Processing Plant, HHE 2014-0040-3232.

OSHA’s ongoing agreement with FSIS

In 2022, OSHA issued a memorandum of understanding with FSIS to protect workers in 6,600 meat, poultry, and egg processing plants. Under the memo:

• FSIS personnel report to OSHA any serious work hazards at FSIS-regulated plants;
• FSIS provides OSHA with attestations (per 9 CFR 381.45 and 310.27) from plants in the new poultry and swine inspections systems programs; and
• OSHA provides a poster (see here and here) to FSIS-regulated plants on how to report injuries to OSHA.

Related legislation

Note that House and Senate bills introduced (but not passed) in 2023 would have required OSHA to issue an MSDs standard for meat/poultry plants. A 2023 GAO report also pressures OSHA for a rule.

Key to remember

FSIS is directed to extend line speed waivers and no longer require plants to submit redundant worker safety data to FSIS.

No action, then retaliation

Despite the employees’ multiple and persistent reports of harassment, the EEOC said the company took no action for more than a year to curb the abuse. The company also allegedly retaliated against the female employees by firing two of them after they reported the sexual harassment and retaliated against another female victim by doubling her workload until she eventually resigned due to the untenable working conditions. More than half of all EEOC charges assert retaliation.

The alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

After the EEOC filed suit, the employer agreed to resolve the case by:

• Paying $400,000,
• Reinstating certain employees,
• Providing letters of apology,
• Training its workforce about harassment,
• Reviewing and revising its policies, and
• Reporting to the EEOC on these subjects.

The EEOC's Phoenix District director commented on the settlement, saying, “Sexual harassment remains a prevalent problem in today's workplace, especially for workers like housekeepers, who may work in isolated environments. Employers commit a second violation of Title VII when they retaliate against employees who complain about the sexual harassment."

Handle sexual harassment claims with care

This case is a reminder that how an employer handles an incident of workplace harassment is critical. An effective response:

• Prevents any further incidents of harassment,
• Avoids retaliation, and
• Helps to limit the employer's liability.

Any complaint received should trigger an investigation, which must be handled carefully.

Here are the steps that should be taken to conduct a fair and unbiased investigation into a complaint of sexual harassment.

1. Document the complaint: Upon receiving a complaint of sexual harassment, document the details, including the date, time, and nature of the alleged incident. Even if it’s impossible to substantiate the claim, having the complaint on record may be helpful in dealing with future incidents. It could show a pattern of behavior, for example.
2. Balance confidentiality with reality: Talk to the person who made the complaint in private and assure them that their identity will be protected to the extent possible. To thoroughly investigate, however, don’t promise 100 percent confidentiality.
3. Ensure a thorough and impartial investigation: HR may want to assign a trained investigator to conduct the investigation. The investigator might be someone in the department with experience in handling sensitive matters who is knowledgeable about sexual harassment policies and procedures. The investigator should interview the complainant, any witnesses, and the alleged harasser, if named.
4. Gather evidence: During the investigation, the investigator should gather relevant evidence to support or refute the allegations. This may include reviewing any available documentation, such as emails, text messages, or surveillance footage. The investigator should also interview any witnesses who may have seen the alleged incident or have relevant information.
5. Maintain neutrality and objectivity: Throughout the investigation, HR should ensure that all parties involved are treated fairly and impartially. The investigator should approach the investigation with an open mind and avoid any bias.

Key to remember: Taking any alleged sexual harassment seriously, regardless of the complainant’s status, prevents any further incidents of harassment, avoids retaliation, and helps to limit an employer's liability.

EEOC v. HHS Environmental, LLC, Case No. 2:24-cv-00721-TS-CMR

The benefits of laughter

Laughter is good for the body and mind. It can:

• Relax you by increasing and then decreasing your heart rate and blood pressure.
• Ease tension by stimulating circulation and relaxing your muscles.
• Increase the feel-good endorphins released by the brain.
• Increase your intake of oxygen.

Looking for laughs

Sometimes laughter will find you in surprising places. When our family visited the Museum of Science and Industry in Chicago, I had no idea that a Charlie Chaplin movie would be part of one of the exhibits. I also couldn’t believe how hard it made me laugh.

Did I feel a little sheepish guffawing in the museum? Sure, but I also felt great.

The fitness center I use provides a daily dose of laughter by posting a joke each day. (A recent example: Did you hear about the pig who played basketball? He was a real ball hog.)

Yes, these jokes are extremely corny. But they always make me smile.

Sometimes it takes a little effort to bring that laughter into your life. You might need to set up a dinner with friends, get tickets to a comedy club, arrange a family game night or, as in our case, check an old movie out from the library and rev up the DVD player.

Does it take some time? Definitely. But it will also boost your spirits and make it easier to cope with the next curve life throws at you - and that’s no joke.

How these laws work together

Federal laws provide a baseline on which state laws can, and often do, build upon. Where federal laws have gaps, state or local laws serve to fill in. Some details to keep in mind include:

• Laws don’t generally contradict each other, but often overlap or intertwine.
  • Employee leave, for example, which falls under both federal and state laws can usually run concurrently.
• The state employment laws of the state in which the employee works govern. It doesn’t generally matter where the employee lives or where the corporate office is.
  • If, for example, an employee works from their home in Minnesota while the corporate office is in Illinois, the Minnesota employment laws apply to the employee.
• One law doesn’t generally supersede another; employers must look at all provisions of the applicable laws and apply the one that gives employees the greater benefit.
  • If, for example, a municipal ordinance’s minimum wage is $15 per hour, while the state minimum wage is $14 and the federal minimum wage is $7.25, employees who work in the municipality must be paid $15 per hour.

Common themes

Topics that many state laws govern include:

• Minimum wage*
• Employee leave*
• Sexual harassment training
• Pay transparency*
• Meals and breaks
• Child labor

*These have currently seen several changes.

Employers should regularly review and update workplace policies and handbooks to reflect changing requirements.

How to stay up to date

Employers must stay informed of applicable employment law changes. Finding resources to help notify them of changes can help. These can include government entities. Other sources include services that track such changes, such as J. J. Keller’s® Compliance Network™.

Whichever method employers use, they might assign a specific individual (or individuals) responsible for tracking developments.

Key to remember: Learning about the various employment laws and applicable changes continues to be a challenge for employers.