Articles Posted in Family Medical Leave

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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.

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Many employers in Maine and around the country jointly employ workers.  For example, the relationships between staffing companies and their clients are often designed so that the staffing company and the client jointly employ the workers who perform work for the client.  In these situations, there are special rules for determining how jointly employed workers become eligible for leave under the federal Family Medical Leave Act (FMLA), and the companion Maine family medical leave law, as well as for overtime pay under the federal Fair Labor Standards Act (FLSA) and the companion Maine overtime law.

The U.S. Department of Labor recently published new FMLA guidance to help employers and workers determine what their obligations and rights are when there is a joint employment relationship. For example, employers with fewer than 50 employees normally do not have to provide FMLA leave to their employees.  However, if two employers jointly employ workers, both employers must count the jointly employed workers for purposes of determining whether they have 50 employees.  If these jointly employed workers push the employers over the 50 employee threshold, they will have to provide FMLA leave to their employees when the employees become eligible for FMLA leave.

Another scenario where joint employment sometimes occurs is when a worker performs work for two companies that are owned and managed by the same people.  For example, a nurse could work for two nursing homes in the same week putting in 25 hours at each nursing home.  If those nursing homes jointly employ the nurse because, for example, the same people own and manage the nursing homes, that nurse is entitled to overtime pay because she worked 50 hours that week.  The U.S. Department of Labor also recently issued guidance on the FLSA to help employers and workers determine whether joint employment exists for purposes of, for instance, determining eligibility for overtime pay.

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It is a common perception among management-side employment lawyers that employees tend to abuse their rights to leave under the Family and Medical Leave Act (FMLA) around the holidays. Some examples of management-side employment lawyers’ advice to businesses about this can be found here, here, and here. So, if you need to use FMLA leave during the holidays because you have a serious medical condition, be aware that your employer may subject you to heightened scrutiny. Heightened scrutiny can be legitimate but sometimes it can cross the line into interfering with your FMLA rights.

To protect your job, you should be careful to follow all of your employer’s policies related to FMLA leave. For example, employers may institute policies that require you to periodically report on your status and intent to return to work. Of course, if you are medically unable to strictly comply with these policies, an employer probably cannot legally hold that against you. But to avoid potential issues with your employment, you should comply with your employer’s policies if at all possible.

It is also a good idea to document your compliance with your employer’s FMLA policies. If an employer suspects that you are abusing FMLA leave, it will be tempted to say that you did not comply with its policies in order to discipline you. So, if possible, make your FMLA requests in writing; provide requested updates in writing; and communicate your intent to return to work in writing. Similarly, if you believe that your employer is interfering with your leave, such as by pressuring you to return to work sooner than your doctor believes you should, document this interference in emails or other written communications with your employer.

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Earlier this month the U.S. Court of Appeals for the Eighth Circuit held that a property management company violated the FMLA rights of its former employee Ena Wages. Ms. Wages worked for the company as a caretaker from November 17, 2008 to November 16, 2009. Caretakers maintained the company’s properties by vacuuming, cleaning, mopping, washing windows, dusting, and removing snow.

In the summer of 2009, Ms. Wages learned that she was pregnant and she needed accommodations in order to perform her caretaker job. The property management company that employed Ms. Wages accommodated some of Ms. Wages’ restrictions but it began to refuse when Ms. Wages started to need to miss work. She had to miss work due to abdominal pain on November 9, 10, and 12, 2009. She submitted a doctor’s note to her supervisor on November 13, 2009, which said that she needed a reduced schedule of 20 hours per week because of her pregnancy. The property management company fired Ms. Wages on November 16, 2009. The company gave Ms. Wages a termination notice which said that it decided to fire her because it could not accommodate the restrictions in her doctor’s note.

The trial court held that the property management company’s termination of Ms. Wages violated the FMLA and the Eighth Circuit affirmed this holding. Both courts rejected the property management company’s argument that Ms. Wages was not eligible for FMLA leave because she had not worked for the company for 12 months. The Eighth Circuit ruled that since Ms. Wages began to work for the company on November 17, 2008, she reached the 12-month mark of her employment on November 16, 2009. It reasoned that November 17, 2009 would have been the start of her second 12-month period of employment.

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The U.S. Department of Labor recently highlighted the distressing problem of workplace injuries in the health care industry.  Health care workers, such as nurses and nurse aides, suffer work-related injuries and illnesses at a rate almost twice as high as the rate of workers in private industry.  They suffer injuries from, among other things, moving patients, needle sticks, and exposure to hazardous chemicals and drugs.

This is a serious problem.  “It means that workers who are relatively young have to stop working early in many cases,” says David Michaels, chief of the federal Occupational Safety and Health Administration (OSHA). “They go home and they have real disabilities. They have trouble lifting up their kids. They have trouble doing a lot of the daily tasks of life, because of back injuries, arm injuries, shoulder injuries. It’s a very big deal.”

Many of the injuries that health care workers suffer are preventable.  In some hospital systems, safe patient handling programs have dramatically reduced workplace injuries.  In Veterans Administration hospitals injuries from lifting patients dropped by an average of 40% and in a chain of hospitals they dropped by 80% after implementing safe patient handling programs.  These programs include training staff on proper techniques and utilizing better equipment to lift patients.