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Archive for the ‘Family and Medical Leave Act’ Category

Paid Family Leave: One More Great Democratic Idea Republicans Will Block

Saturday, December 21st, 2013

Laura ClawsonFamily leave is one of the many ways the United States lags behind its peers on workers’ rights, but Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) aim to change that. The two Democrats are pushing the Family and Medical Insurance Leave Act, which would create a national insurance system allowing workers paid leave time to deal with their own serious health conditions or those of family members. Even families with health insurance struggle when the choice is between being available to take care of a sick loved one or going to work and getting a paycheck:

In a testimony gathered by the New York State Paid Family Leave Coalition, a mother named Devorah from Rosendale, N.Y. recalled the hardships she faced when her daughter was born premature with a severe medical condition and continued to suffer from long-term medical problems in later years. Though her family had some insurance protection, Devorah said, “By the time we walked out of the hospital with our baby, we had spent an additional $30,000 out of pocket.” In her daughter’s first years, she went on:

There were times when … we didn’t pay our bills. We didn’t pay the gas company or the oil company or the phone company. If there was a choice between prescription drugs and groceries, we bought prescription drugs. If there was a choice between groceries and the phone bill, we went without a phone. … And it’s taken us six years to dig our way out of the financial hole that this dumped us into.

Workers would get up to 12 weeks of leave in a year, receiving 66 percent of their pay (up to a capped amount). The benefits would be financed by small employee and employer payroll contributions—small as in two-tenths of one percent, or two cents for every $10 in wages—and available to all workers insured by Social Security Disability Insurance, not just those currently eligible for the Family and Medical Leave Act. It would be administered by the Social Security Administration, an agency that knows a little something about handling social insurance funded by payroll contributions. And the plan is modeled on similar programs that are already working, and working well, in California and New Jersey; another begins in Rhode Island in 2014.

The Family and Medical Insurance Leave Act fills a clear need: people often report that the reason they don’t take FMLA’s unpaid leave is that they can’t afford to do so. It’s modeled on programs that already work. It’s humane. It would especially help women, since women are both most likely to be caregivers and are, on average, paid less than men. It’s crazy that the United States doesn’t already have a law like this. Yet until and unless Democrats control the House, Senate, and presidency, we can count on Republicans blocking it.

This article was originally printed on Daily Kos on December 20, 2013.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at the Daily Kos.

Why You Should Know Your Rights Under FMLA

Tuesday, August 14th, 2012

lizabethThere is a common misconception that the Family and Medical Leave Act only include provisions that apply to pregnancy and childbirth. In fact, there are many scenarios that working people face which could benefit from leave guaranteed under FMLA laws. It is important for all workers to be aware of FMLA and what it covers, because this 12 week allotment of unpaid leave may be of great assistance in many situations.

FMLA does cover issues pertaining to pregnancy and childbirth. But, what about other parenting situations? For example, what if an employee adopts a child? Or, what if a parent has a sick child? FMLA can be applied in these situations as long as the situation qualifies. Furthermore, FMLA does not have to be used as a single extended period of leave. If, for example, a parent has a child who must be taken to the doctor regularly for treatment, that parent may take leave in small increments to do this. Even if the time needed is only an hour, FMLA can be used. All an employee has to do is provide the employer with sufficient information to explain why the leave is needed and when it will be taken.

What if there is a family member other than a child who is having significant health issues? Can an employee have leave under FMLA to care for them? Unequivocally yes as long as the employee qualifies. To qualify the employee must work for a qualifying organization, have worked at least 1,250 hours in a year, give an explanation of why and when the leave is needed, and provide medical certification to prove the need for leave. When an employee needs time to care for the needs of a child, spouse, or parent, FMLA provides it. Leave may be used to take a family member for medical treatments, such as chemotherapy and dialysis. It may also be used to care for a family member with a chronic condition such as Alzheimer’s.

There are other situations where FMLA may be applied that are less well-known. For example, many people don’t realize that FMLA makes special provisions that apply to military personnel, including those in the Reserves or National Guard. If an employee has a spouse, child, or parent who is in the military, they may take FMLA leave to cover the needs that arise if that person is called to duty. These could include financial preparations, handling legal arrangements, and attending military functions. FMLA can also be used for the purpose of spending time with a serviceperson who is on short-term, temporary leave during deployment.

Lastly, people should remember that FMLA can be used in order to care for an employee’s own serious health issues. This doesn’t mean that you can use FMLA to recuperate from a cold. But, if you have a significant health situation arise, or if you have a chronic issue like asthma or arthritis, FMLA can help you. Employees will need to provide a medical certification form completed by a physician to document the need for leave.

If you need to take time off for a significant health reason, for a parenting issue, or for something relating to active military duty, you need to examine FMLA leave. The requirements to be eligible for the leave are surprisingly few.  They are:

• An employee must work for a covered employer
• An employee have worked for the employer for a total of 12 months
• An employee must have worked at least 1,250 hours over the previous 12 months
• An employee must work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

FMLA is an extremely helpful protection for all employees. Those who are not completely familiar with the laws should make an attempt to familiarize themselves with its contents. The Department of Labor provides employees with resources that explain FMLA. A small investment of time learning about the rules could be a lifesaver if the need for leave arises.

About the Author: Lizabeth C. S. Bell has a background in English and library science. Currently, she does research, analysis and writing for EmploymentLaw HQ, a site dedicated to providing employees with free information about their legal rights. Insatiably curious, Lizabeth is interested in pursuing further intellectual challenges and loves sharing new knowledge with others.

Fox News’ Megyn Kelly Gets It Right: ‘The United States Is In The Dark Ages When It Comes To Maternity Leave’

Thursday, August 11th, 2011

Image: Pat GarofaloFox News’ Megyn Kelly returned to work yesterday after three months of maternity leave, and during her first show, she pummeled shock radio host Mike Gallagher, who back in May called Kelly’s maternity leave “a racket” that was “unbelievable.” Kelly not only took Gallagher to task for poo-pooing the notion that women should be able to stay home with their newborns, but she also pointed out that the U.S. is in “the dark ages when it comes to maternity leave,” as it is the only industrialized nation that doesn’t require employers to give new mothers paid time off: megynkelly0809

KELLY: What a moronic thing to say…Is maternity leave, according to you, a racket?

GALLAGHER: Well, do men get maternity leave? I can’t believe I’m asking you this, because you’re just going to kill me.

KELLY: Guess what honey? Yes, they do. It’s called the Family Medical Leave Act. If men would like to take three months off to take care of their newborn baby, they can. [...] Just in case you didn’t know, Mike, I want you to know that the United States is the only country in the advanced world that doesn’t require paid maternity leave. Now I happen to work for a nice employer that gave me paid leave. But the United States is the only advanced country that doesn’t require paid leave. If anything, the United States is in the dark ages when it comes to maternity leave. And what is it about getting pregnant and carrying a baby for nine months, that you don’t think deserves a few months off so bonding and recovery can take place, hmm?…You can’t answer the question because there is no answer, my friend.

Watch it: http://www.youtube.com/watch?feature=player_embedded&v=5BfSBxk0FMc

Kelly is spot-on. As the Project on Global Working families found during a survey of 173 countries, the U.S. is in some bad company when it comes to paid maternity leave:

Out of 173 countries studied, 169 countries offer guaranteed leave with income to women in connection with childbirth; 98 of these countries offer 14 or more weeks paid leave. Although in a number of countries many women work in the informal sector, where these government guarantees do not always apply, the fact remains that the U.S. guarantees no paid leave for mothers in any segment of the work force, leaving it in the company of only 3 other nations: Liberia, Papua New Guinea, and Swaziland.

The U.S. hasn’t required paid maternity leave even though such leave results in “a decrease of complications and recovery time for the mother and [a decrease in] the risk of allergies, obesity, and sudden infant death syndrome for the child.” So it seems that even a Fox News host can be sensible when personally faced with the implications of government policy.

This blog originally appeared in Think Progress on August 9, 2011. Reprinted with Permission.

About the Author: Pat Garofalo is Economic Policy Editor for ThinkProgress.org at the Center for American Progress Action Fund. Pat’s work has also appeared in The Nation, U.S. News & World Report, The Guardian, the Washington Examiner, and In These Times. He has been a guest on MSNBC and Al-Jazeera television, as well as many radio shows. Pat graduated from Brandeis University, where he was the editor-in-chief of The Brandeis Hoot, Brandeis’ community newspaper, and worked for the International Center for Ethics, Justice, and Public Life.


Family Leave Politics Move Toward Workplace Fairness and LGBT Equality

Monday, June 28th, 2010

Michelle ChenWhen a child is sick, the last thing a parent should be worried about is her next paycheck. Yet that’s the perverse dilemma that besets millions of workers in an economy that’s radically out of sync with the rhythms of modern family life. Activists are working to ease the strain by making the option of paid time off not only more generous, but also more open to all types of families, whether they’ve got one mom or two dads.

This week, the Labor Department moved to make family and medical leave policy accessible to same-sex households, showing that time off for caregivers isn’t just a perk, but a civil rights issue in a labor force rife with discrimination.

In sharp contrast to European societies, millions of American workers are burdened by a lack of guaranteed paid leave time for sickness or family emergency. Meanwhile, even those limited, inflexible policies are especially punitive for same-sex couples, largely shutting them out of federal law. Same-sex partners are thus denied both full economic citizenship as well as the dignity of recognition of their loving relationships.

The Labor Department plans to clarify the rules of the Clinton-era Family and Medical Leave Act, which allows many employees (but not all) up to 12 weeks of unpaid leave to care for a sick child. Under the Labor Department’s revision, if Mary’s kid gets sick, her partner Jane could stay at home to take care of the child, even if Mary and Jane can’t officially get married.

According to the advocacy group Family Equality Council, most children of same-sex partners do not live in states that legally recognize their relationship to their parents, and in the states that do, parents are generally “unable to extend health benefits to their kids or to make medical decisions on their behalf in the event of an emergency.” An estimated two million children nationwide are in the care of LGBT families.

The new reading of the legislation would build on other baby steps for LGBT rights under the Obama administration, including plans to extend hospital visitation rights to same-sex couples, the incorporation of same-sex partners into the Violence Against Women Act, and perhaps a repeal of the Pentagon’s Don’t Ask Don’t Tell policy. All these measures inch toward equality in the absence of sweeping legislation, or a court ruling, that grants same-sex marriage rights.

But in their push for visibility in the workplace, same-sex partners also push the debate beyond marriage itself. A more inclusive definition of family dovetails with the gender justice struggle for the huge swath of the workforce that doesn’t want to choose between earning money and caring for family.

Rights advocates have long campaigned for local, state and federal paid leave programs. Sherry Leiwant of A Better Balance, which has supported paid leave initiatives in several states and cities, including New York and San Francisco, told In These Times that the group includes same-sex domestic partners in its campaigns:

It is very important to us that domestic partners be included in bills extending paid family leave benefits and paid sick days to workers…. Working with the National Partnership for Women and Families we have created model statutes for both paid family leave and paid sick time and they define family member to include domestic partners.

While the Obama administration’s FMLA clarification applies specifically to children, the model concept recognizes same-sex partners as caregivers and as adult family members entitled to care.

While the benefits of paid family and sick leave are clear, the widespread lack of it deepens the racial, gender and income stratification of the workforce. A study by the Center for American Progress and U.C. Hastings Center for WorkLife Law suggests that a culture of overwork and inequality corrodes social stability:

Discrimination against workers with family responsibilities, illegal throughout Europe,  is forbidden only indirectly here. Americans also lack paid sick days, limits on mandatory overtime, the right to request work-time flexibility without retaliation, and proportional wages for part-time work. All exist elsewhere in the developed world.

So it should come as no surprise that Americans report sharply higher levels of work-family conflict than do citizens of other industrialized countries.  Fully 90 percent of American mothers and 95 percent of American fathers report work-family conflict. And yet our public policymakers in Congress continue to sit on their hands when it comes to enacting laws to help Americans reconcile their family responsibilities with those at work.

The Family Equality Council and other groups seek a two-pronged expansion of the FMLA through the Healthy Families Act. That bill, according to spokesperson Kevin Nix–

allows employees to take time off for “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” The “affinity” language is responsive to all kinds of family and caretaking configurations, and for LGBT families specifically who live in states where they can’t marry and can’t adopt the child they are raising, it means they would still qualify to take time off to care for each other when they get sick.

So whether the family member is a partner of the same gender, a grandma, or an adopted son, the law would ideally embrace a progressive concept of emotional kinship. Whatever kind of relationships give meaning to a worker’s life, an equitable paid leave policy would ensure that in hard times, everyone has the right to be there for a loved one.

This article was originally published in Working In These Times.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Racewire.org. She can be reached at [email protected]

FMLA Retaliation Victim Wins Appeal In Sixth Circuit

Tuesday, February 16th, 2010

Kmart Employee Fired For Taking Medical Leave Wins Family and Medical Leave Act Appeal

You would think most employers know that you’re not supposed to fire someone because they take a medical leave of absence – but it looks like K-Mart may have missed the boat.

A sales clerk at one of its Michigan stores who lost her job for taking time off after surgery will get her jury trial on a Family and Medical Leave Act retaliation claim according to the Sixth Circuit Court of Appeals opinion last week in Cutcher v Kmart Corporation.

Here’s what happened in the case.

The Facts

Susan Cutcher worked as a full-time hourly sales clerk at Kmart for many years. (Kmart calls these employees “associates”)  Her performance evaluations were good to excellent.

In 2002, she received an overall rating of “exceptional,” the second highest rating available that year.  In 2003, she again received a rating of “exceptional,” the highest possible rating in that year’s appraisal.

In 2004, her rating dropped from “exceptional” to “exceeds expectations,” the second highest rating possible. In 2005, she again received an overall rating of “exceeds expectations.”

The 2005 review  noted: “Susan usually is able to provide good, friendly, customer service, her work is usually very well done—and accurate.”

In early November 2005, Cutcher learned that she needed surgery. Her doctor indicated that she required six weeks off work after surgery and signed the necessary forms which Cutcher then submitted.

In December of 2005, while Cutcher was on leave, Kmart announced a nationwide reduction in force (“RIF”).  The Port Huron Michigan store, like others, was required to cut a number of associate positions.

Each store received guidelines as to how it would go about making the cuts. The guidelines included an “Associate Performance Recap Form” which included :

• the same four performance categories as the annual evaluations: customer service, teamwork, demonstrated work habits, and effectiveness in position
• consideration of  the employee’s most recent annual appraisal rating in calculating an employee’s score
• a requirement that the stores provide an explanation in the comments section — along with documentation — of a significant change in the employee’s score when compared to their annual appraisals
• a statement  that those on a LOA (leave of absence) should be included in the selection process but that the fact of a LOA should not be considered as a rating factor

When Cutcher was evaluated for the RIF, she received lower ratings than she received in the last performance appraisal for the same categories. In addition, the following comment appeared next to her name: “Poor customer and associate relations. LOA.”

The last evaluation was just twenty days earlier, and no performance issue occurred in the interim, nor was there any documentation to substantiate a lower rating. The only employment event regarding Cutcher was her leave of absence.

The negative evaluation and low scores caused Cutcher to be selected for termination. Had she been evaluated consistently with her last evaluation of November 15, 2005 –just twenty days earlier — her ranking would have been high enough to avoid the RIF.

When Cutcher returned from medical leave to active status on January 23, 2006, she was greeted with a pink slip. Her position was not eliminated. It was given to another employee.
Cutcher filed a lawsuit in federal court against Kmart claiming that Kmart violated the FMLA by interfering with her FMLA leave and retaliating against her for taking FMLA leave.

The District Court Finds For Kmart

Under the FMLA, an eligible employee:

• may take twelve week s of unpaid leave in certain situations, including a serious medical condition
• is entitled to return to his or her position or to an equivalent position held by the employee when the leave commenced
An employer may not:
•  interfere with, retrain or deny the exercise of or attempt to exercise any FMLA right  29 U.S.C.  S.2615(a)(1)
•  retaliate against an employee for invoking his or her right to take FMLA 29 U.S.C. S.2615 (a)(2)

Kmart argued that it would have fired Cutcher even if she had not been on FMLA leave. The district court agreed and threw out the case on summary judgment. Cutcher appealed.

The Sixth Circuit Court Of Appeals Reverses

The FMLA Interference Claim

Cutcher argued both in the district and the Court of Appeals  that a jury question was created as to whether she would have been fired had she not take FMLA leave because of:

• Kmart’s post-hoc rationalization of their lower RIF appraisal score, in light of the fact that there had been no prior documented complaints against her, and
• the  “LOA” notation written n the comment section of the Asssociate Performance Recap Form

The Sixth Circuit agreed:

Given Cutcher’s prior annual appraisal score, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that Cutcher’s performance did not change during that short period of time, the inclusion of the ‘LOA” notation on the Associate performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

The FMLA Retaliation Claim
A FMLA retaliation claim requires a plaintiff to establish that:

• she was engaged in an activity protected by the FMLA
• she suffered an adverse employment action
• there was a causal connection between her protected FMLA activity and the adverse employment action

If this showing is made, the burden shifts to the employer to establish a legitimate, non-discriminatory reason for the adverse employment action. If the employer does this, the burden  shifts back to the plaintiff to prove that the employer’s reason is pretextual – in other words, not true or not worthy of belief.

Cutcher argued, and the Sixth Circuit agreed, that the same evidence which supported the connection between her FMLA leave and the termination demonstrated that Kmart’s proffered legitimate reason for firing her was pretextual.

It stated:

Specifically, the following facts show pretext: the temporal proximity between her leave and the termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisal an her RIF appraisal, and the “LOA” notation next to Cutcher’s name in the Impacted Associates Form.

The district court rejected these proffered reasons, but Cutcher has produced sufficient evidence – listed above – from which a jury could conclude that Kmart used the RIF as a means of terminating her. ……

Although she has not presented direct evidence to support that argument, the circumstantial evidence creates a question of material fact for the jury.

For the reasons stated above, we REVERSE the judgment of the district court ….

Conclusion

There are two things that strike me about this case.

For one, it is hard for me to imagine that someone at Kmart who had some understanding of employment law didn’t realize that firing someone on medical leave — who consistently had very good employment evaluation — might create a legal problem (or perhaps they just didn’t care for one reason or another).

Two, although I have seen this so many times I couldn’t begin to count, it still angers me when a district court embraces the employers version of the evidence,  completely discounts the employees evidence including any inferences which may be drawn from it, and grants judgment in favor of the company.

Even though the Supreme Court sent a crystal clear message in the Reeves v Sanderson Plumbing case (10 years ago ) that weighing of evidence by the district court is wrong  and juries are supposed to decide these cases — not the federal judges or their law clerks — this pernicious anti-employee summary judgment practice stubbornly persists.

image: 4.bp.blogspot.com

*This post originally appeared in Employee Rights Post on February 8, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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