Anyone with common sense would agree that healthy families are essential to a robust economy. That’s why it’s worth celebrating the 20^th anniversary of the Family Medical Leave Act on February 5; one of the most significant advances for working families in our nation’s history. In 1993, FMLA transformed the workplace and strengthened the American family by helping millions of workers secure job-protected leave to recuperate from a serious illness, give birth or adopt a new child, or take care of a seriously ill family member. Prior to FMLA, many people lost their jobs when these types of life events occurred. Workers have used FMLA more than 100 million times since its enactment during the Clinton administration.

Diane, a Denver teacher for ten years, was able to keep her job while battling cancer, thanks to the FMLA. The mother of a young son at the time, Diane said “I was able to take time off because I qualified for FMLA.  Because I [also] had access to paid sick days, and a paid sick leave bank, I was able to get some wage replacement while I was out for three months.”  Diane was one of the fortunate ones, because she had access to FMLA and a paid sick leave bank that helped keep her financially afloat.

As critical as FMLA continues to be in protecting jobs and families, there are major gaps in the law. FMLA’s biggest weakness is that it’s unpaid.  Seventy-eight percent of covered employees who need FMLA, don’t take it because they can’t afford to.  And almost half of all workers lack job protection under FMLA because they haven’t worked for their employer long enough, they’re not scheduled for enough hours, or the size of their company is too small to make them eligible. The definition of “family” also needs to be expanded beyond spouses, children and parents so that the law is more relevant to real peoples’ lives and caregiving responsibilities. Moreover, the reasons someone can take leave are severely limited in the law.  In addition to improving FMLA, paid sick days need to be expanded to cover more routine illnesses and preventive care that aren’t covered by FMLA.

Women in low-wage jobs are least likely to have any paid sick, personal, or vacation time at all, leaving one of the most vulnerable segments of our workforce unprotected. Ten percent of women who did take FMLA ended up on public assistance.

Sonya worked full-time as a medical interviewer for 11 years at a large hospital in Atlanta.  During her pregnancy, she saved up money totaling two months of expenses to help her pay her bills while she was on FMLA. But when Sonya’s son was born prematurely and placed in intensive care and she needed to take additional time off to care for her medically-fragile son, she used up her leave and savings pretty quickly. Even though Sonya had access to FMLA, she ended up on public assistance and struggled to make ends meet.

Unfortunately, many people are still forced to go to work when they need to be at home caring for themselves or their families. Americans agree that there’s nothing more important than taking responsibility and caring for your family members.  After 20 years, it’s time to make FMLA more affordable and accessible. Our country needs healthy and economically secure families to help fuel a strong, thriving economy.

To read additional stories from hardworking Americans who have benefited from FMLA, as well as those unable to do so because of a lack of accessibility or affordability, click here. Their voices make a strong case for strengthening and improving FMLA so that more of us are able to balance responsibilities at home and on the job.

This article was submitted by the new website 9to5.

About the Author: Linda Meric is the National Public Relations Coordinator at 9to5.

There 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.

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

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