Articles Posted in Family Medical Leave

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Yesterday, the Maine Employee Rights Group (“MERG”) secured another victory for our client in a federal case against Woodlands Senior Living of Brewer (“Woodlands”). As we previously reported, a Bangor jury found that Woodlands unlawfully discriminated against our client because she needed medical leave for a disability. The jury awarded our client $15,000 in back pay and, yesterday, the judge awarded our client an additional $15,000 plus interest (for a total of $30,000 plus interest) because Woodlands failed to prove that it acted in good faith when it violated our client’s rights.

In addition to awarding our client another $15,000, plus interest, the judge ordered Woodlands to change our client’s personnel records so that they indicate that Woodlands unlawfully terminated her for discriminatory reasons. The judge also ordered Woodlands to submit documentation proving that it trained its managers on the law and Woodlands’ policies regarding disability discrimination and employee family medical leave entitlements.

Because MERG prevailed in this case, Woodlands will also be required to pay attorney fees to MERG for our work on this case. The court has not yet issued a ruling on the amount of attorney fees that Woodlands will have to pay MERG.

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The Mount Desert Islander published the article below about the Maine Employee Rights Group’s (MERG) lawsuit against Mt. Desert Hospital.

Lawsuit alleges discrimination

BANGOR — A former Mount Desert Island Hospital employee has filed a lawsuit in federal court claiming the hospital failed to accommodate her disability stemming from medical issues, and retaliated against her for using the Family Medical Leave Act.

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The federal Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of leave per year for certain qualifying reasons, like a serious health condition or the birth of a child. For employees who need to take all, or close to all, of the 12 weeks they are entitled to, they should know how their employers calculate their leave years. This is because every time a new leave year begins, employees get 12 more weeks of FMLA leave.

Under the FMLA, an employer can choose one of four ways to calculate its leave year:

  1. the calendar year;
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Earlier this week, the U.S. Seventh Circuit Court of Appeals upheld a jury verdict against a company that fired an employee, Tracy Wink, because she needed leave to care for her autistic son. The jury found that Wink’s termination violated the Family and Medical Leave Act (FMLA).

Wink had to take leave from work to care for her autistic son because, due to his autism, he exhibited behaviors that led to his expulsion from his daycare center. Wink’s mother was able to watch her son three days per workweek but Wink had to watch him for the other two days of the workweek. Wink’s employer, Miller Compressing Co., permitted Wink to work from home the two days per week that she had to watch her son. It permitted Wink to deduct the hours from her pay that she spent during those two days caring for her son.

After several months working under this arrangement, Miller Compressing’s management decided that it would no longer allow any employees to work from home. A human resources (HR) officer called Wink on a Friday and told her that starting the next Monday she would have to start working in the office and if she could not do that she would be fired. Wink broke down in tears telling the HR officer that she could not possibly find day care for her son with such short notice. The HR officer falsely told Wink that FMLA did not permit her to take leave to care for her son unless she was taking him to a doctor’s appointment or therapy. On Monday she came into work and said that she had not found day care for her son. The company refused to change its decision and, as a result, Wink’s employment was terminated.

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A new study from Bloomberg shows that workers filed more lawsuits under the Family and Medical Leave Act (FMLA) in 2015 than in previous years. At the same time, employers continue to try to detect “FMLA abuse,” which occurs when employees take FMLA leave they are not entitled to take. These two trends may not be unrelated.

When an employee uses FMLA leave, a business that has not properly planned for its employees to take FMLA leave can feel some strain. Good businesses should plan for employees to use FMLA leave because people inevitably get sick, get pregnant, and experience other life events that trigger the need for FMLA leave. If managers don’t have a plan for picking up the slack when employees take FMLA leave—rather than blame themselves for poor planning—they will sometimes try to find evidence that an employee actually didn’t need FMLA leave. They then can fire the employee for FMLA abuse. Overly zealous managers, who too quickly assume that employees have abused FMLA leave, can violate employees’ FMLA rights if they falsely conclude that employees have abused FMLA leave. Thus, ironically, it could be the overly zealous actions of employers trying to catch employees committing FMLA abuse that has led to a surge in FMLA lawsuits.

If your employer is accusing you of FMLA abuse, you should contact an experienced employment lawyer immediately. There are steps you should and should not take in order to protect your job and, if necessary, hold your employer accountable for violating your rights.

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Last week, the U.S. Eighth Circuit Court of Appeals issued an opinion in a Family Medical Leave Act (FMLA) case which involved claims against Bridgestone Americas Tire Operations.  The court held that Bridgestone unlawfully interfered with the FMLA rights of Lucas Hernandez, a tire builder Bridgestone fired because of attendance.

While Hernandez worked for Bridgestone his son had asthma and he needed to intermittently take time off from work to care for his son.  The FMLA requires employers to permit FMLA-eligible employees to take intermittent leave for qualifying reasons, such as to care for a son or daughter with a serious health condition.  Bridgestone permitted Hernandez to take this intermittent FMLA leave but, according to the court, it did not provide him with all of the leave he was entitled to take.

Like many manufacturers, Bridgestone ran its tire building operations continuously.  This continuous operation required many employees to routinely work overtime shifts.  At the plant where Hernandez worked, Bridgestone put out overtime sign-up sheets where workers could express interest in overtime work.  Bridgestone then took the information from the sign-up sheets and posted another sheet indicating who was selected for overtime and when they had to work.  The court found that once Bridgestone selected an employee for overtime and put their name on the sheet, that overtime shift was mandatory.  Characterizing the overtime shift as mandatory had implications for calculating Hernandez’s FMLA leave entitlement.

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A new poll conducted by National Public Radio, the Robert Wood Johnson Foundation, and Harvard’s T.H. Chan School of Public Health shows that many people believe that work is bad for their health.  Here are some of the key findings about working adults in the U.S.:

  • 43% say that their work negatively affects their stress levels;
  • 28% say that their work has a bad effect on their eating habits;
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The U.S. Department of Labor’s Wage and Hour Division (DOL WHD) recently updated its Employer’s Guide to the Family and Medical Leave Act (FMLA).  DOL WHD produced this Guide “in an effort to increase public awareness of the FMLA and of the various [DOL] resources and services available to the public.”

The Guide is informative for both employers and employees who want to understand their obligations and rights under the FMLA.  The FMLA provides unpaid leave to eligible employees who work for employers covered by the FMLA when the employee experience qualifying events such as the birth of a new child or a serious health condition.

The Guide contains a helpful graphic, called a Roadmap, which puts the various issues that employers should consider in an order that will allow them to determine their obligations to their employees under the FMLA.  The Roadmap begins with determining whether the FMLA covers the employer, continues to what a covered employer must do to educate employees on their FMLA rights, and then moves on to what covered employers should do when they have an employee who may be eligible for FMLA due to a qualifying reason.

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We wanted to share a powerful editorial from USA Today that drives home how important it is for Maine and the rest of the country to adopt policies that permit workers to take paid parental leave to care for newborn children.  Given how painful their experiences undoubtedly were, we applaud the women who wrote the editorial below for sharing their stories.

Voices: If we had parental leave, our sons might still be alive today

By: Amber Scorah and Ali Dodd

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Last week a federal court in New Hampshire held that a jury could reasonably find that First Data Merchant Services (“First Data”) violated the Family and Medical Leave Act (“FMLA”) when it fired Jessica Fountain, a former First Data account executive.  Ms. Fountain took FMLA leave in 2009 because of her own serious medical condition and again in 2011 and 2012 to care for her son when he suffered from a serious medical condition.  In January 2013, Ms. Fountain requested FMLA leave again and shortly afterwards First Data fired her supposedly for poor performance.

Ms. Fountain argued to the court that First Data violated the FMLA when it fired her, in part, because it did not adjust her sales quotas in 2012 to account for the fact that she missed work for FMLA leave.  The court found this argument persuasive because there was evidence that Ms. Fountain’s supervisor used unadjusted 2012 sales quotas to justify his decision to terminate her employment.

First Data’s treatment of Ms. Fountain is not uncommon.  Sometimes employers think that if they treat all employees the same, they are not going to violate the law.  However, laws like the FMLA entitle employees to special treatment because of certain public policy considerations.  The FMLA protects the jobs of FMLA-eligible employees who, for instance, need to take leave to care for their children when they have serious medical conditions because Congress did not want employees to have to choose between keeping their jobs and caring for their children.  When an employee takes FMLA leave, she obviously cannot work and her employer cannot hold that against her.  This means that when an employer evaluates an employee’s productivity, it cannot hold her to the same productivity standards as other employees who did not take FMLA leave.