A Message from Chapter President Lance Lis

ACC-MI is more than an outstanding resource - our networking events are always fun social events at new or classic venues! 

 

Our Program Committee, led by Heather Betts and Jennifer Neumann, is planning to have the Second City comedy troupe visit from Chicago to entertain us with world-class improv.  The in-house counsel that attend our social programs are eager to meet you - that's why they come!  Join us in June!  Where else can you get to know other in-house and build your contacts so effectively while enjoying yourself? 

 

Being a great lawyer requires having the resources to provide advice.  ACC has extensive materials uniquely suited to the type of guidance you need because they are developed by people facing the same challenges as you.  But more than that is the members at ACC-MI who are eager to tell you (brag?) how they solved a similar problem.  Many times I've found out about alternative solutions to challenges that I was facing, not when researching online but just by relaxing at an ACC event and having a pleasant conversation! [This happened to me just last December while touring the Edsel Ford house at the winter social event.]

 

Our events are well-run, thanks in part to our new executive director, Nicole Smith of Treeline Associates, now having almost a full year of experience at ACC-MI. 

 

Jennifer Neumann of our Member Committee reports that membership is increasing fast, having gone up over the past year!

 

In addition to education, resources, and networking, Matt Case leads our Scholarship Committee's effort to help develop the next generation of in-house lawyers by awarding scholarships to law students based on their suitability to the in-house practice.  The presentation of the awards on May 11 at the DAC was a proud moment for both the winners and ACC-MI.

 

Our members in West Michigan, led by Alisha Cieslak, are very active in both substantive programs and networking events.  They just finished a program on the Trump Administration's Impact on Workplace Law.  Talk about a timely topic!

 

I hope to see you at the next substantive program, social event, and even participating in our exciting chapter!

Tell me about Nexteer.

1. What is your role at Flagstar?

I am Associate General Counsel and Vice President. I am responsible for transactional matters including the purchase and sale of assets, contracts, privacy, the management of the Flagstar's IP portfolio, and the management of outside counsel and other operational aspects within the legal department.

2. How long have you been in-house?

I have been in house for six years, all of which has been spent working for Flagstar.

3. What career path led you to Flagstar?

Unlike most in-house attorneys, I started at Flagstar as a Junior Attorney soon after law school. My career at Flagstar has grown progressively, as I have continued to take on new responsibilities. As a result of taking the initiative to grow my practice areas, I have been promoted. I started out as a non-officer, moved to an officer position, then to assistant vice-president, and finally to my current vice president position.

4. What has been your most interesting project?

My most interesting project was when I handled the divestiture ofour technology subsidiary. The subsidiary was a reseller of software, which enabled customers to automate their entire mortgage workflow. This project was important to Flagstar from a regulatory perspective as it allowed our organization to focus on its core business, banking and mortgages.

5. What has been the biggest surprise about being in-house counsel?

My biggest surprise was that people think that the role of in-house counsel is to say yes or no rather than advising as to any potential risks. A lot of business people seem to categorize in-house counsel as naysayers rather than business partners. I have found that as long as attorneys are mindful of the business objectives and make an effort to identify a paths to a solution, it adds the most value and can really help to build and/or grow relationships with clients.

6. How have you benefitted from ACC over the years?

I have found the substantive programs to be very relevant and informative. Serving on the events committee as well as the board has been rewarding.

7. What contributions has ACC made to the in-house practice of law?

The substantive programs provided by ACC are helpful and are better focused on the needs of in-house counsel specifically. The networking events are a great way to connect with other in-house counsel and develop best practices.

8. What do you like most about being a member of the ACC Michigan Chapter?

I have been an ACC Michigan Chapter member for about 4 years. I like the fact that it has helped me to develop a professional network and collaborative relationships.

9. What do you do when you are not working?

I am working on obtaining my MBA from the Kellogg School of Management. Although the program requires a lot of my time outside of the office, I make sure to find time to do things I enjoy. I like to work out and participate in 5k and 10k events and have also participated in the Tour De Detroit and the Turkey Trot. I love to travel. For international travel, I am going to Tel Aviv and Beijing this year. I will get to go to Jerusalem, as well as the Great Wall. I am looking forward to discussing my experiences with you at the next ACC event.

Florence Affatato General Counsel/Chief Compliance Officer Portfolio Solutions LLC	Lisa Buursma Corporate and Commercial Counsel Bissell Homecar, Inc	Nicholas Celeski General Counsel Metalsa	Georgette Dulworth Vice President, Legal Dematic Group Limited
Joanne Finnorn VP, General Counsel & Compliance Officer Amerisure Companies	Tamika Frimpong Legal Director Nexteer Automotive Corporation	David Keller Legal Manager 5 Dematic Corporation	Ian Kennedy  Vice President & General Counsel Kalsec Incorporated
Kenneth Loucks Attorney 3 Dematic Corporation	Ekkard Lustig Senior Counsel Advent US LLC	Maria Meldrum Chief Legal Counsel Quad City Innovations, LLC	Lucia Risk Senior Counsel Hino Motors Manufacturing U.S.A, Inc.
Ra Sz Senior Counsel Duo Security	Satyam Talati General Counsel SRVR, LLC	Erin Toburen Attorney 3 Dematic Corporation

Contacting Employees On Medical Leave

Jackson Lewis P.C.

How many employers have had this situation arise? An employee requests and receives a leave of absence under the Family and Medical Leave Act (FMLA). While they are out, the employee's supervisor needs to locate a document or find out the status of a project the employee was working on; human resources needs to conduct a prompt investigation that involves the employee; or a crucial question comes up that only the employee on leave can answer.

A few de minimis, work-related communications with the employee to pass on "institutional knowledge" or documents, to provide closure on completed assignments, or as a "professional courtesy", may be permissible. Any more than that and the employer may be facing an FMLA interference claim, or a claim that the employer failed to accommodate a disability. See Tilley v. Kalamazoo Cnty. Rd. Comm'n, No. 15-1592, 654 F. App'x 675, 679-80 (6th Cir, Jun. 27, 2016) ( quoting Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F. Supp. 2d 886, 910-11 (E.D. Mich. 2007)).

Under FMLA regulation 29 CFR 825.220(b), interfering with an employee's FMLA leave includes not only refusing to authorize FMLA leave, but also discouraging an employee from using leave. As the Court stated in Smith-Schrenk v. Genon Energy Services, L.L.C., No. H-13-2902, 2015 U.S. Dist. LEXIS 3007 (S.D. Tex. Jan. 12, 2015), "there is no right in the FMLA to be 'left alone' or be completely relieved from responding to an employer's discrete inquiries." However, this statement must be balanced against the court's other statement: "On the other hand, asking or requiring an employee to work while on leave can cross the line into interference."

Unfortunately, there is no bright-line test for what is permissible vs. impermissible contact under the FMLA, but court cases give a catalog of good examples for permissible contact: occasional phone calls inquiring about files; a simple, "unburdensome" request for materials; or an inquiry to close out a completed assignment. In contrast, it may be impermissible to require an employee to substantially update files, or to complete tasks the employee should have completed prior to the leave.

Based on current case law and the FMLA regulations, it is best not to contact an employee on FMLA leave.  It is also best not to allow the employee to work while on such a leave, even if the employee voluntarily wants to do so, because the employee may later claim it was involuntary.  Further, it is a good practice to make clear, in writing, that employees on such leaves are not expected to (and should not) perform work during their leave, except for minor administrative tasks, such as advising the company of where to locate documents.

If you have an urgent question that cannot wait until the employee returns, and it must be answered by that employee, then contact the employee but keep the communication brief. Likewise, a necessary, brief telephone interview to complete an investigation is likely fine, assuming the employee's medical documentation does not indicate the employee is unable to participate. For example, in Adams v. Anne Arundel County Public Schools, 789 F.3d 422 (4th Cir. 2015), the Fourth Circuit Court of Appeals determined a single, in-person disciplinary interview did not interfere with the employee's FMLA leave, based on the circumstances in that case.  Multiple, full-day interviews, on the other hand, would likely pose a problem.

The interview should also be voluntary.  A mandatory interview poses a risk from an FMLA interference standpoint because a Court may interpret it as "requiring the employee to work."  It could also pose a risk from a disability discrimination (failure to accommodate) or retaliation standpoint as well, depending on the reason for the leave.  Further, a forced interview might undermine the validity of the investigation by allowing the employee an opportunity to claim she/he was so ill, tired or taxed from traveling into the office that the answers given during the interview are not reliable.  In this regard, whether the interview is by phone or in person, the employer needs to comfortably be able to say, given what it knew about the employee's health and the importance of the interview, it was reasonable to request the interview. 

1. Tiffany Buckley-Norwood is a principal in the Detroit office of Jackson Lewis P.C., a national labor and employment law firm.  She practices labor and employment law exclusively, with an emphasis on OFCCP federal contractor compliance, disability and leave management, and fair employment practices litigation.  She can be reached via phone (248-936-1939) or email ([email protected]).  A more detailed bio can be found here - http://www.jacksonlewis.com/people/tiffany-buckley-norwood.

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