Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Family & Medical Leave Act’

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.


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

Obama and the Future of Labor and Employment Law

Thursday, November 13th, 2008

Obama With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future.

Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about.  Although I previously posted a similar analysis of what the next President should do on the Marquette Law School Faculty Blog about three weeks ago, I want to sharpen these past comments and add some new ideas.

President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living. Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation.

President-elect Obama should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  Obama should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. He should also sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, President-elect Obama should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns and overruling Dana Corp. and putting back in place the traditional voluntary recognition bar.

Workplace Anti-Discrimination and Civil Rights: President-elect Obama should work for legislation requiring employers to provide at least seven days of paid sick leave to employees and expanding the Family and Medical Leave Act (FMLA) to cover more workers (to employers with 20 or more employees). He should also protect the wages of working women by signing into law a legislative nullification of the Ledbetter decision, which will promote paycheck equity and help close the pay gap that leaves working women earning only 77 cents for every dollar earned by men.

President-elect Obama should also sign legislation to extend § 1983 civil rights claims to actions against federal officials so that federal employees can vindicate their constitutional rights to speech and privacy. Finally, he should expand Title VII and fully include all LGBT individuals (yes, such legislation must include transgendered individuals) under its protections.

Employee Benefits Rights: With more than 47 million Americans-–including 9 million children–without health insurance, President-elect Obama needs to sign a universal health care plan into law before the end of his first term.  This plan structure should include guaranteed eligibility, comprehensive benefits, and affordable premiums and co-payments, with subsidies for families that cannot afford the premiums.  Additionally, ERISA should be amended to provide for less preemption of state health care finance laws so that states can experiment in providing all of their citizens adequate health care.  Obama should also work to amend ERISA to provide monetary, make-whole remedies to employees who suffer from mismanagement of their employee benefits and work for the legislative nullification of the Russell/Mertens line of Section 502(a)(3) equity cases.  In this regard, I have proposed the ERISA Civil Rights Act of 2009, which will act much in the way the Civil Rights Act of 1991 amended Title VII.  Among the changes, the right to compensatory and punitive damages in appropriate cases with caps, the right to a jury trial when such damage is sought, and right to make-whole, equitable relief under current Section 502(a)(3).

Public Employee Rights: First and foremost, President-elect Obama should select Justices who will overule the Garcetti case and return to Pickering and the mandate that employer efficiency interests and employee constitutional rights to speech, expression, association, and privacy be balanced under the First and Fourteenth Amendments.  As to federal employees, Congress should amend the Civil Service Reform Act of 1978 and provide that federal employees are free to bring their First Amendment claims directly to federal court under a re-structured Section 1983, without having to go through the current inadequate, administrative remedies now available.  (This would entail a newly-constituted Supreme Court overruling the Bivens case of Bush v. Lucas).  Such legislation would also provide whistleblowers under Sarbanes-Oxley and in other areas the protection they really need to go out on the limb and report danagerous and fraudulent conditions in the workplace.

Believe it or not, the above suggestions would merely start the process of affording American employees the same basic workplace rights as their international counterparts. Note that I have not even broached what must be an essential component of any comprehensive labor and employment law reform in this country – the institution of just cause workplace protection as the default rule for American employees.

All of this will help return the United States to its international stature and allow it again to not only be a beacon of democracy and freedom, but also the envy of the world insofar as how it treats its working men and women.

Cross-posted from the Workplace Prof Blog.

About the Author: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

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