Pregnant Worker Calls Kaiser Firing Pretextual
(CN) - Kaiser implemented an illegal timekeeping policy and used it against an IT worker when she announced her pregnancy, she claims in Federal Court.
Jan Lynch, formerly known as Jan Bicker, sued Kaiser Foundation Hospitals in Cleveland. She claims that, during her years of employment at Kaiser, the managed care giant changed its classification of Ohio IT workers in response to a class action concerning unpaid overtime in Alameda County, Calif.
"As a result of the California litigation, Kaiser re-classified Ohio IT positions, including the position occupied by plaintiff, from exempt to non-exempt," Lynch says.
The change did not lead to employees like Lynch receiving overtime pay, however, Lynch says.
"Kaiser actively discouraged the use of overtime while expecting plaintiff and others in her department to satisfactorily complete their duties and responsibilities that required more than 40 hours per week," the complaint states. "Instead, Kaiser implemented a 'comp-time' practice, wherein employees who worked in excess of 40 hours in a week were told, made, or allowed to take time off of equivalent amounts to avoid the payment of earned overtime."
Lynch describes one manager as being instrumental in getting staff to use the new system. This manager, who is not named as a defendant, discouraged staff from requesting overtime and "told plaintiff and others that they simply needed to 'adjust their time' outside the office or off the clock when they had worked in excess of 40 hours."
When employees worked over 40 hours in a week, the manager allegedly instructed them "to adjust their schedule to take time off during the week when they could, but remain logged in so that the time off would not be counted against leave time," according to the complaint.
Employees who were required to work during the weekend were told to "make it up with time off the following week while remaining on the clock," and the manager "told plaintiff and other employees it was acceptable to log in from home, even when not working, to equalize excess hours worked," Lynch says. "The practice was continuous, and went on for several years, until plaintiff's termination."
She adds: "Kaiser knew or should have known that its comp-time system was not in accordance with federal law and that the representations made to plaintiff in regard to the comp-time policy (including but not limited to how to use it and that it was acceptable to use it) were false." (Parentheses in complaint.)
In September 2012, when Lynch told Kaiser she was pregnant and requested time off for the birth under the Family and Medical Leave Act, "Kaiser began selectively monitoring plaintiff's use of comp-time through log-ins and log-outs," according to the lawsuit.
Lynch says she was subjected to the selective monitoring for months because of her pregnancy. No other employees faced the same scrutiny though they "were known by Kaiser to have engaged in precisely the same, approved time equalization practices," according to the complaint.
Kaiser then allegedly denied Lynch's two requests for FMLA forms, telling her she needed to wait until closer to her due date. She also says she was assigned to train another employee to take over her position "under the stated guise that plaintiff was soon to be promoted."
Then, "the day before the office baby shower plaintiff's co-workers had scheduled for her, and only weeks before plaintiff's expected delivery date, Kaiser terminated plaintiff's employment," according to the complaint. "Kaiser offered as explanation for plaintiff's termination her use of the very management-approved, comp-time practices it had implemented."
But pregnancy, and thus gender, was the real reason, Lynch says. "Other employees who had not requested FMLA and who were either male and/or not pregnant but followed the comp-time policy of Kaiser, however, were not subjected to discipline or termination," she added.
Lynch seeks punitive damages for gender discrimination, FMLA retaliation, interference with the FMLA and fraud.
She is represented by James Grove and Christopher Yingling with Nicola, Gudbranson & Cooper.