Articles Posted in Family Responsibilities Discrimination

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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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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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The Center for Work Life Law recently published a study on litigation trends in family responsibility discrimination cases which found a dramatic increase in such claims.  Family responsibility discrimination occurs when an employer discriminates against an employee because s/he has family caregiving responsibilities, such as caring for newborn children, elderly parents, or disabled spouses.

The study found that in the past ten years, while employment discrimination claims decreased from the prior ten years, family responsibility discrimination cases increased by 269%.  The study also found that employees win family responsibility discrimination cases at higher rates than other types of employment discrimination cases.  Nationwide, employees have won 67% of family responsibility discrimination cases that went to trial in the last ten years; and employees have won 72% of such cases that went to trial in Maine.

The researchers who conducted the study interestingly found that claims involving discrimination based on elder care responsibilities as well as claims filed by male workers have increased over the past ten years.  While these claims are still small in number compared to the more common family responsibility discrimination cases involving discrimination against pregnant workers and female employees with children, the increases are notable.  As the baby boom generation continues to age, more and more workers have to care for elderly parents and relatives.  Furthermore, it has become more socially expected and necessary for men to take bigger roles in family caregiving responsibilities; and this family caregiving role for men clashes with stereotypical notions that such caregiving is “women’s work.”

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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.

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One of the most common and difficult issues employees face is when they have family care giving responsibilities that require them to miss some work and their employers refuse to allow them to take sufficient time off to attend to those responsibilities. Most of us are familiar with these types of situations, like: a child or spouse in the hospital; the birth of a new son or daughter; the death of a parent or spouse. Unfortunately, there is not one law which governs every situation but, rather, a patchwork of different federal and state laws that provide employees with certain rights.

hospital.jpgThe federal Family and Medical Leave Act (FMLA) and Maine’s Family Medical Leave Requirements (MFMLR) both require covered employers to provide eligible employees with time off from work if, for instance, they have to care for a spouse or child with a “serious health condition.” The key is knowing whether your employer is “covered” and whether you are an “eligible” employee. If more than 50 employees work in the same workplace as you, the FMLA likely covers your employer. If more than 15 employees work in the same workplace as you (or you work for the State or a town that has more than a total of 25 employees), the MFMLR likely covers your employer. If you have worked for a MFMLR covered employer for at least 12 consecutive months, you are likely eligible for leave under the MFMLR. If you have worked for an FMLA covered employer for 12 months, even if they were not consecutive months, and 1250 hours in the 12 months immediately prior to your request for leave, you are likely eligible for FMLA leave. For more information about these laws, you can consult the Maine and U.S. Department of Labor websites.

Maine also has a law which requires employers who offer paid sick leave to allow their employees to use that paid sick leave when they have to care for an immediate family member who is ill. Under this law, even if the immediate family member’s illness is not a “serious health condition” (which is a legal term with a complicated definition) the employer has to let the employee use her paid sick leave.

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The AARP Public Policy Institute recently released a paper on workplace discrimination against workers who have to care for an elderly relative. As the baby boomer generation continues to age, this will become an increasingly important issue.

While there are a patchwork of federal, state, and local laws that, in some circumstances, protect workers who have to care for an elderly relative, there is no federal law that expressly prohibits such discrimination. So, for instance, the federal Family and Medical Leave Act (FMLA) may protect an employee who must come into work a little late some days in order to care for an elderly parent but not all employees are eligible for FMLA leave. Similarly, as the U.S. Equal Employment Opportunity Commission has asserted, an employer may not discriminate against a female job applicant who has an older parent living with her because it assumes, since she is a woman, she will have to take time away from work to care for that parent. Proving that an employer made such an assumption, however, can be quite challenging.

The AARP Public Policy Institute’s paper advocates for new laws that would expressly protect employees from discrimination based on their family care giving responsibilities. These new laws would require employers to treat employees with family care giving responsibilities no less favorably than employees without family care giving responsibilities. To illustrate, the paper explains that under such a law “an employer who readily allows students’ work schedules to be shaped around their class schedules could not refuse to show similar flexibility for an employee caring for an older adult.”