Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Family and Medical Leave Act’

Can an employee on FMLA leave from work attend a night concert?

Monday, October 9th, 2017

A federal court in Texas has dismissed a claim of FMLA discrimination and retaliation by a woman who was fired after attending a Beyoncé concert while she was on personal medical leave. The railroad employee claimed that the company interfered with her rights under the Family and Medical Leave Act and illegally terminated her. The employer countered that she was fired for abusing the leave policy and failing to communicate with her managers per FMLA rules.

The Northern District of Texas judge shut down the woman’s claim with Beyoncé-like finality. But it raises the legitimate question of whether people on medical leave or family leave are entitled to enjoyment of life or expected to sit at home and recuperate in stoic solitude.

Employee’s actions during leave raised eyebrows

The Texas case, Jackson v. BNSF, involved a woman who was under pressure at work. Shortly after management placed her on a performance improvement plan, Ms. Jackson notified her boss that she was taking disability leave for an unspecified medical condition.

The Family and Medical Leave Act allows up to 12 weeks of unpaid leave for a personal health crisis or to care for a seriously ill family member. The employer is not entitled to full details or veto power. But the employer is entitled to ask for status updates and a schedule of when the employee expects to be in and out of the office.

At the beginning of her leave, Ms. Jackson was unresponsive to repeated inquiries about business matters, according to the court documents. A few weeks later, Jackson was spotted by a co-worker at the music concert. In fact, Jackson was watching Beyoncé from the employer’s corporate suite at the stadium.

The employer suspected her leave was an abuse of FMLA policy if not downright fraudulent. When asked to explain her presence at the concert, she did not respond. When pressed again, she emailed that her doctor had not cleared her to discuss work. When given an ultimatum to check in with her manager by a cutoff date, she did not respond. The company moved to terminate, and Jackson later filed suit for FMLA violations and retaliatory discharge.

What is the expectation of employees under FMLA leave?

The employee must give 30-day notice if the leave is foreseeable, or notice “as soon as practicable” if unforeseen. The employee must give the employer sufficient explanation of the nature of the leave. In the case above, Ms. Jackson told her bosses she was under a doctor’s care and was “not well to return to work.” A doctor could conceivably back up such a scenario.

By dismissing Jackson’s claim, the federal judge skirted the question of whether an employee who was not well enough to work could be well enough to attend a concert. Her disability leave, according to court documents, was ostensibly related to a “mental breakdown” over her workload and performance review. Returning to the workplace might have triggered anxieties that after-hours entertainment would not.

People on medical leave or family leave are not precluded from buying groceries, going to church, attending soccer games or otherwise “living their life.” But what about taking a long-planned family vacation while on leave from work? Or continuing with Wednesday night bowling league as a respite from caring for Mom during the day? Or seizing the golden opportunity to see “Queen Bey” from a luxury suite while on disability leave.

Such gray areas may merit legal advice from an employment law attorney. But one moral of the story for anyone on FMLA leave is to stay in communication with the employer. Once that dialogue is closed, the relationship may become highly adversarial.

This article was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 9, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Why Supreme Court Nominations Are One of the Most Important Issues for Working People

Friday, September 2nd, 2016

Kenneth QuinnellThere’s a lot at stake in the 2016 presidential election. While U.S. Supreme Court nominations may not be the most headline-grabbing stories that come out of a presidency, they probably should be. With Supreme Court justices serving for life and having significant power in interpreting laws that affect our daily lives, the importance of court appointments cannot be overstated.

This election, in particular, could shape up to be one of the most important elections in terms of shaping the court in American history. After Antonin Scalia’s death earlier this year, Republicans in Congress have sworn to prevent a replacement from being chosen until after the election and have stalled President Barack Obama’s nomination of Merrick Garland for more than 150 days. In all likelihood, it will be up to the winner of the 2016 presidential election to choose Scalia’s replacement, be it Garland or someone else.

But that’s not the end of the story. According to a 2006 study by the Harvard Journal of Law and Public Policy, the average retirement age for Supreme Court justices is 78.7. As of the beginning of the next president’s term, three of the nine justices will be older than 80. Another will be 78. While those justices seem healthy and committed to staying on the court for the near future, Scalia seemed the same way before passing away at 79. It’s not outside the realm of possibility that the next president could literally appoint a majority to the court, especially if elected for a second term.

It isn’t necessarily the case that the appointment of one or two new justices will make a significant shift right away, but over time, replacing Scalia with a justice that is less of a right-wing ideologue has the potential to reshape many areas of American law—and, in particular, much of the law surrounding the rights and lives of working people. Here are six reasons that Supreme Court nominations are one of the most important issues in the 2016 elections:

1. Gerrymandering: With a case already moving its way through the courts, this one could come up soon. And it’s a big one. Ever wonder why the country keeps voting for Democrats for president, but Republicans control Congress? A key reason is gerrymandering, the process of drawing the district lines for congressional seats for partisan advantage. Currently, 55% of congressional districts were created to favor Republicans, compared to 10% drawn in favor of Democrats. That’s why, in 2012, when Barack Obama won re-election and a majority of votes for congressional seats went to Democrats (50.59%), Republicans managed to somehow get a significant majority of House seats (53.79%). In that cycle, 1.37 million more Americans voted for Democrats, only to see Democrats end up with 33 fewer seats in the House. If one spends any time reading constitutional law, they’ll find that the precedent is pretty strongly against this type of gerrymandering. A court appointed by Hillary Clinton would likely frown heavily on this type of manipulation of the electorate.

2. Voting Rights: In 2013, the court issued a ruling that shocked President Obama, legal scholars, civil rights groups and historians. The conservative majority on the court gutted the enforcement mechanism for the Voting Rights Act. This was almost immediately followed by states that were previously required, based on a history of discrimination, to get Department of Justice approval for changes to voting laws, passing a series of laws that made it harder for many, particularly African Americans, to vote. Republicans passed laws shortening voting hours, eliminating early voting and making it harder to register and harder to vote, among other new obstacles to people exercising their right to vote. Many of these laws have been rejected by courts, and it’s likely that the Supreme Court would look very negatively on them.

3. Citizens United: The court ruled that corporations can spend as much as they want to influence elections, as long as they spend it independently of campaigns. This led to tons of money flowing into elections and the creation of super PACs. Clinton wants this ruling overturned and said she’d appoint justices that would do so. Trump’s on the other side. Clinton-appointed justices are likely to take a stricter look at other attempts by corporations and the wealthy to have more influence on elections than the rest of the electorate.

4. Corporate Influence in Supreme Court Cases: A recent study found that between 2009–2012, the one entity most likely to get a hearing at the Supreme Court, out of all petitioners, was the Chamber of Commerce. The court was not only more likely to hear cases championed by the chamber, it was more likely to decide in favor of the corporate interests the chamber supported. The court also made it harder for citizens to engage in class-action lawsuits, making it harder for citizens to sue corporations like Comcast or Walmart for hurting working people or consumers and making it less likely those working people and consumers would win cases before the court. Additionally, in the notorious Hobby Lobby case, the court allowed some corporations a religious exemption, allowing them not to provide insurance coverage for contraception. Other anti-working people decisions in recent years involved making it easier for judges to dismiss cases earlier, without going to trial, and requiring some consumers to submit to arbitration, rather than going to court.

5. Workplace Fairness: A series of 5–4 decisions during the John Roberts Court era have come down against working people and their rights on the job. These rulings will be ripe for challenges once Scalia’s seat on the court is filled. Among the key rulings that are under scrutiny are those that make it harder to sue in cases of pay discrimination, make it easier to retaliate against and fire employees who report job bias claims, make it harder to prove age discrimination on the job, weakened the Family and Medical Leave Act, made it easier to promote “right to work” at a national level, weakened overtime protections, made it easier to dismiss wage theft claims and made it easier to fire public employees for public statements made in the course of their duties.

6. Deportations: Earlier this year, the court effectively killed an executive order from Obama that would have shielded as many as 4 million undocumented immigrants from deportation. It will likely be considered again under a new court.

Any number of other issues that affect working people could also come before the Supreme Court, including, but not limited to: education funding, Medicaid expansion, public funding of elections, solitary confinement of inmates, prison overcrowding and many other issues.

This blog originally appeared in aflcio.org on August 30, 2016.  Reprinted with permission.

Kenneth Quinnell: I am a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, I worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  My writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  I am the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.

A Better Balance: The Work and Family Legal Center

Tuesday, February 2nd, 2010

EJW profile pictureA woman who was eight months pregnant was asked to leave her job because, according to her boss, her pregnancy “didn’t look right for the company.” Another woman suspected she was not hired after explaining to her prospective employer that the gap on her resume was because of time she needed to care for her ailing mother. A man was fired after asking for a few extra days off of work to care for his wife who was recovering from surgery.

Most American workers have families to care for and most American families rely on parents and others to provide essential income. Yet our workplaces have not caught up to this reality and often subject workers to unfair treatment because of their family responsibilities. Too many working parents and caregivers, especially those with limited income, lack access to lawyers and know little about their workplace rights. At the same time, studies have indicated that nearly one in five employers is out of compliance with the Family and Medical Leave Act, the only federal law designed specifically to address the issue of work/family integration. Workers with families need assistance navigating the legal labyrinth of the workplace when they encounter discrimination or are faced with a family health crisis.

A Better Balance: The Work and Family Legal Center and Outten & Golden LLP, the employee-rights law firm, are teaming up to help. A Better Balance is a non-profit organization dedicated to promoting equality and expanding choices for men and women at all income levels so they may care for their families without sacrificing their economic security. Outten & Golden LLP, is a national preeminent employment law firm dedicated to empowering employees and protecting their civil rights in the workplace. It is also one of the first and only firms in the nation to have a practice area dedicated to Family Responsibilities Discrimination.

Together, these two New York City-based organizations have launched a free legal clinic to provide information and advice to workers with family responsibilities about their workplace rights. The clinic grows out of a project at A Better Balance that was created to extend work/family advocacy to a segment of the workforce that faces stubbornly inflexible work hours and whose economic security is easily endangered by a family crisis. These workers are often forced to choose between their jobs and their family’s well being; for them, a sick child or family emergency can mean the difference between just scraping by and tumbling into poverty. No one should have to face such an impossible choice.

As part of the Families @ Work project, employees can now access a Guide to Your Rights at Work for workers with family responsibilities, which outlines common questions and answers about working while pregnant and while caring for loved ones. Attorneys from A Better Balance and Outten & Golden LLP are also conducting trainings for workers, lawyers, social workers and others to help them understand the scope of the law and the protections available for families at work. Individuals in the New York City area who suspect they may have been treated unfairly at work because they are pregnant, or had to take time off to care for a sick child or other relative, or for any other family-related reason, are encouraged to call the Families @ Work Legal Clinic hotline at 212-430-5982 to set up an appointment with a lawyer.

About the Author: Phoebe Taubman is an Equal Justice Works Fellow with A Better Balance: The Work and Family Legal Center, which fights to give American workers the time and flexibility they need to care for their families without risking their economic security.  She leads a project to expand work/family advocacy to low-income New Yorkers by empowering and educating them about their rights to be free from workplace discrimination based on caregiving responsibilities.  Prior to joining A Better Balance, Phoebe served as a law clerk to the Honorable Faith S. Hochberg of the United States District Court for the District of New Jersey in Newark and as a litigation associate at Mayer Brown in New York City.  Phoebe is a member of the New York City Bar Association’s Committee on Women in the Profession.  She is a graduate of Harvard University and of Georgetown University Law Center.

For Mother’s Day, Let’s End Pregnancy Discrimination

Friday, May 8th, 2009

Forget the fancy brunches, chocolates and flowers for a moment. Mother’s Day is the perfect time to call attention to a persistent workplace issue: pregnancy discrimination.

In this country, anchored by adoration for Mom and apple pie, it’s almost unfathomable that discrimination against expectant mothers even exists. It is illegal under federal and state laws to discriminate against a working woman because she’s pregnant or has just given birth. Still, of the various types of workplace discrimination, the U.S. Equal Employment Opportunity Commission reports the largest rate of increase is in pregnancy discrimination charges.

While you’re out perusing the Mother’s Day cards, consider this: The number of pregnancy discrimination charges received by the EEOC increased from 3,387 cases in 1992 to 5,587 cases in 2007 – a jump of 65 percent. According to figures released in March, the EEOC received a record 6,285 complaints of pregnancy discrimination in 2008 and officials say they expect pregnancy complaints to rise even more sharply this year.

Why the dramatic increase? Women have a better understanding of their rights and are more willing to assert them. But there’s something else: It’s the economy. In tough times, complaints of discrimination always increase. This time around, pregnant workers are among those who appear to be taking the hit. But tough times also mean working women are less inclined to just walk away from discriminatory treatment – especially when finding another job isn’t such an easy thing to do.

Their stories are disturbing; even more so around the second Sunday in May.

Kelly worked part-time for a big-box retailer. When she was six months pregnant with her second child, she was told all part-time workers would have their hours reduced. Later, she learned that the other part-timers, both men, had maintained their hours. She filed a complaint with her HR office. She’s now seeking advice from an attorney.

Angelika had excellent performance reviews at the pharmaceutical company where she worked – until she announced she was pregnant. Suddenly, she began receiving sub-par evaluations. One hour after returning to work from maternity leave, she was told that she had been removed from all projects and her direct reports had been re-assigned to others. She was given a choice: enter a performance improvement plan or take a buy-out. She filed a state civil rights complaint. It’s been nearly a year. Her case is unresolved.

Thirty years after the Pregnancy Discrimination Act of 1978 was signed into law, too many women still face workplace jeopardy. PDA says that an employer cannot refuse to hire a woman because she’s pregnant, cannot fire her because she’s pregnant, and cannot demote her or dock her pay because she’s pregnant. Even asking a woman about her child-rearing plans is illegal if an employer does not do the same for male job applicants or employees.

Last month, responding to the dilemmas pregnant workers, new Moms and other caregivers face, the EEOC released employer best practice guidelines. The agency urged employers to adopt policies that could help them avoid discrimination complaints and see increased benefits to the business bottom line – regardless of the economic climate. The EEOC guidelines encourage employers to recognize that workers with care-giving responsibilities need family-flexible workplace policies.

Paid sick days and paid family leave are critical so workers can care for themselves and their families without losing their pay or their jobs. The U.S. is one of only six countries in the world that doesn’t require paid sick days or family leave. While the Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave for the arrival of a new child or the serious illness of a spouse or parent, it only covers large employers and many workers cannot afford to take it.  Nearly 57 million American workers lack even a single paid sick day to care for themselves, and 100 million don’t have a paid sick day to care for a sick child.

Employers must also establish policies that increase workplace flexibility. Inexpensive solutions like accommodating unique family situations by allowing workers to set their starting and ending hours or decide when they take breaks or lunch periods, can make a huge difference for families and have been shown to positively affect worker productivity, as well.

Here’s some advice for workers who are pregnant, just had a child, or feel they may be discriminated against on the job because of their care-giving responsibilities: Know your rights! Document everything and keep a copy of your notes at home. If you belong to a union, talk to your steward. Or, seek help from your HR office. If you suspect discrimination, file a complaint. And speak out to support company and public policies that establish family-flexible workplace standards.

Government must protect workers with family responsibilities from illegal treatment and unfair job loss. But if we’re really sincere about showing Mom our gratitude, let’s get serious about supporting working mothers and mothers-to-be – not just on Mother’s Day, but every day, with workplace policies that provide the real economic security they need.

About the Author: Linda Meric is Executive Director of 9to5, National Association of Women, which helps strengthen women’s ability to achieve economic justice. 9to5 has staffed offices in Wisconsin, Colorado, California and Georgia and activists in cities across the country.

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