Articles Posted in FMLA Discrimination

flick offState and federal laws protect workers from termination based on a protected category like race or sex, known as discriminatory termination; or because of participation in protected activities like reporting legal violations, known as retaliatory discharge. A claimant must make a prima facie case of a discriminatory or retaliatory purpose in order to get past a summary judgment motion. A federal court in New Jersey recently ruled in a plaintiff’s favor on claims of discriminatory discharge under state law and retaliatory discharge under federal and New Jersey wrongful termination laws. Ferren v. Foulke Mgt. Corp., No. 1:15-cv-03721, opinion (D.N.J., Feb. 16, 2017).

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers on the basis of multiple categories, including disability. N.J. Rev. Stat. § 10:5-12(a). Unlawful discrimination includes discharging an employee solely or primarily because of a disability. It also prohibits retaliating against an employee because of a protected activity. The federal Family Medical Leave Act (FMLA) guarantees that qualifying employees of covered employers may take unpaid leave for certain purposes, and it prohibits employers from retaliating against employees for taking authorized leave or reporting violations of the statute. 29 U.S.C. § 2615.

The plaintiff in Ferren began working for the defendant in 2001 as a lot attendant at a car dealership. His job duties included lot maintenance and customer service. He took medical leave in October 2014 for a shoulder injury, according to the court, after informing his supervisor that he would be having surgery and was invoking his rights under the FMLA. The plaintiff was scheduled to return to work in January 2015. He reportedly provided a doctor’s note to the supervisor in December 2014, which stated that the plaintiff should not lift more than five pounds and should refrain from certain other activities. The supervisor allegedly told the plaintiff to “go home and get better.” Ferren, op. at 3. On the plaintiff’s scheduled return date, he was laid off.

forestThe Family and Medical Leave Act (FMLA) requires covered employers to provide qualifying employees with a minimum amount of unpaid leave for certain reasons. It also prohibits employers from interfering with employees’ use of authorized leave, discriminating based on the use of leave time, or retaliating against an employee for using leave. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey employment disputes involving federal law, recently ruled on a case alleging retaliation under the FMLA. It found that the district court should have given the jury an instruction regarding the “mixed-motive” theory of liability, which shifts the burden of proof to the defendant if a plaintiff demonstrates that their “use of FMLA leave was a negative factor in the employer’s adverse employment decision.” Egan v. Del. River Port Auth., 851 F.3d 263, 267 (3rd Cir. 2017).

Employees who meet a minimum requirement for number of hours worked during the preceding 12-month period are eligible for up to 12 weeks of unpaid leave under the FMLA. 29 U.S.C. §§ 2611(2), 2612(a)(1). This only applies, however, if the employer has at least 50 employees. Id. at § 2611(4). Many workers do not qualify for FMLA leave because their employer is not big enough, or they have not worked for the employer long enough to become eligible. The FMLA provides numerous protections to help ensure that employees who are able to accrue leave are able to use it. This includes a prohibition on retaliating against an employee who uses or attempts to use leave to which they are entitled. Id. at § 2615(a)(1), 29 C.F.R. § 825.220(c).

Courts have identified two general theories for discrimination and retaliation claims:  pretext and mixed-motive. In a pretext claim, a plaintiff asserts that an employer’s stated reason for an adverse action is false and is merely a pretext for an unlawful motive. A mixed-motive theory alleges that an employer had “both legitimate and illegitimate reasons” for the adverse action. Egan, 851 F.3d at 268 n. 1. The plaintiff must show that the “exercise of FMLA rights was ‘a negative factor’ in the employer’s employment decision.” Id.

beachThe Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., guarantees that qualifying employees of covered employers have access to unpaid leave, with protection against interference or retaliation by employers. A federal appellate court recently ruled that an FMLA retaliation claim may proceed. Jones v. Gulf Coast Health Care of Del., LLC, No. 16-11142, slip op. (11th Cir., Apr. 19, 2017). The defendant employer terminated the plaintiff employee after he took FMLA leave, citing vacation photographs posted to social media by the plaintiff during their leave period. Although the case originated in Florida, it could be relevant to New Jersey employment disputes, since no court here appears to have ruled on the specific issue of social media posts during FMLA leave.

The FMLA requires employers with at least 50 employees to provide job-protected leave to eligible workers. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, has established standards for retaliation claims. To prove retaliation, a plaintiff must meet a three-part test:  (1) The plaintiff invoked a right to leave under the FMLA, and (2) the employer made an adverse decision that (3) “was causally related to her invocation of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012).

The plaintiff worked for the defendant for about 11 years, from 2004 until his termination in 2015. The defendant operates a facility providing long-term nursing care. The plaintiff’s job involved planning and coordinating events and activities for residents. He requested FMLA leave in 2014 for shoulder surgery, which the defendant granted from September 26 to December 18, 2014. On the final day of leave, the plaintiff’s doctor told him he could not resume regular physical activity at work until February 2015. The plaintiff asked the defendant to allow him to return to work on light duty, but the defendant refused to allow him to return until he “could submit an unqualified fitness-for-duty certification.” Jones, slip op. at 4. The defendant granted the plaintiff an additional 30 days’ leave instead.

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hospitalEmployment statutes often use broad language that leaves much open to interpretation. The federal and state agencies charged with administering and enforcing these statutes develop their own interpretations of the statutes, which may or may not match the interpretations of the court system. The U.S. Supreme Court has held that courts must defer to agencies’ interpretations of the statutes that they administer, provided that those interpretations do not exceed the agencies’ legal authority. This is known as the “Chevron doctrine,” after the court’s decision in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). The Third Circuit based a recent decision, which involved a Family and Medical Leave Act (FMLA) discrimination claim, on Chevron. Egan v. Delaware River Port Authority, No. 16-1471, slip op. (3rd Cir., Mar. 21, 2017).

The FMLA requires covered employers to provide unpaid leave to qualifying employees for specific medical- and family-related reasons. The statute is heavy on qualifications regarding which employers are covered, how and when employees qualify for leave, and which situations provide a valid basis for requesting leave. The U.S. Department of Labor’s Wage and Hour Division (WHD) has promulgated additional rules and procedures for determining who is entitled to leave. See 29 U.S.C. § 2611 et seq., 29 C.F.R. Part 825. Employers cannot interfere with the rights guaranteed by the FMLA, and they may be liable to aggrieved employees for damages if they do. 29 U.S.C. §§ 2615, 2617.

In the context of employment litigation, the Chevron doctrine comes into play with regard to rules promulgated by agencies like the WHD to help identify statutory violations. See Auer v. Robbins, 519 U.S. 452 (1997). The regulation at issue in Egan involved the evidence required to prove discrimination and retaliation under the FMLA. The WHD has interpreted the statute as prohibiting employers from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c). The question before the Third Circuit involved whether the plaintiff had to prove that his FMLA leave directly resulted in an adverse employment action.

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cough medicineFor most workers in the U.S., paid sick leave is a benefit conferred by their employer, solely based on the employer’s determination that it is a worthwhile investment. If an employer were to stop offering paid sick leave to its employees, they would have no recourse other than finding another job. No federal law requires paid sick leave, and only a handful of states—not including New Jersey or New York—have enacted laws mandating a minimum amount of paid sick leave. The news is not all dire, though. Thirteen cities in New Jersey have enacted their own paid sick leave laws. Morristown, New Jersey is the latest town to do so, although the mayor has reportedly delayed its implementation until early 2017. Employees of certain government contractors will soon benefit from a new Department of Labor (DOL) Final Rule, which takes effect at the end of November 2016.

Allowing workers to stay home due to an illness, without losing several days’ pay, seems like a sensible policy, at least when looking at society at large. Employees who cannot afford to lose the income may go into work despite being sick. This can spread illnesses like the flu, ultimately causing even bigger problems. While the Family Medical Leave Act allows unpaid leave for certain purposes, federal law makes no provision for paid sick leave. Only five states have paid sick leave laws:  California, Connecticut, Massachusetts, Oregon, and Vermont. In a nationwide sense, it is generally up to individual employers to decide whether or not to offer it to their employees. On a solely individual level, an employer might not see the value of giving paid sick leave to its workers. Businesses may not like regulations, but sometimes they serve a very important purpose.

Morristown became the 13th New Jersey municipality to enact a paid sick leave law in September 2016. Ordinance O-35-2016 describes the numerous societal benefits of allowing employees to earn paid sick leave, including “reduc[ing] recovery time” and “reduc[ing] the likelihood of people spreading illness to other members of the workforce and to the public.” Employees earn one hour of paid sick leave for every 30 hours that they work, up to a maximum of 24 hours (three work days) in a calendar year for employers with fewer than 10 employees, and 40 hours (five days) for employers with 10 or more employees. Additional exceptions apply, depending on various circumstances.

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emergency-doctor-147857_640.pngA federal judge in New Jersey recently awarded $274,000 in attorney’s fees and costs to the plaintiff in a lawsuit related to an employee’s request for medical leave. Boles v. Wal-Mart Stores, Inc., No. 2:12-cv-01762, opinion (D.N.J., Aug. 6, 2015). A jury found for the plaintiff in March 2015 on his claim of retaliation in violation of the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-12. It awarded him compensatory and punitive damages totaling $200,000. When the court entered the order for attorney’s fees and costs, it also denied the defendant’s motion for judgment notwithstanding the verdict (JNOV).

The plaintiff began working at a retail store owned and operated by the defendant in Linden, New Jersey in 2001. He received various promotions over the years, eventually becoming an overnight assistant manager in early 2011. The plaintiff sought medical attention for a blister on his leg in May 2011. This became an ulceration, which can be dangerous because of the risk of infection. His doctor recommended that he take medical leave until November, but the defendant reportedly only approved leave through late September. The plaintiff was not able to return to work by then and requested an extension of his leave. He tried to return to work in late October 2011, but the defendant would not allow him to do so. It terminated him shortly afterwards for abandoning his job.

In March 2012, the plaintiff filed suit under the NJLAD and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. He asserted four causes of action: retaliation for requesting medical leave, disability discrimination, and failure to accommodate, all in violation of the NJLAD; and interference with his rights under the FMLA. In March 2014, the court partially granted the defendant’s motion for summary judgment and dismissed the disability discrimination claim and part of the failure to accommodate claim. It denied the motion as to the claims for retaliation and FMLA interference, and partly as to the failure to accommodate claim. The case went to jury trial in March 2015.
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lipstick-259411_640.jpgA federal lawsuit filed by a former cosmetics company employee, which has since been settled and dismissed, raised claims of race, ethnicity, and national origin discrimination, retaliation, and other claims. Meyers v. Revlon, Inc., et al, No. 1:14-cv-10213, complaint (S.D.N.Y., Dec. 30, 2014). The plaintiff accused the chief executive officer (CEO) of numerous derogatory statements, and of retaliation for noting and reporting safety and regulatory concerns. The lawsuit asserted causes of action under federal, state, and city law, including New Jersey’s whistleblower protection statute.

According to his complaint, the plaintiff worked in the cosmetics industry for 35 years, rising from an entry-level position to the defendant’s Chief Science Officer. He took that position in 2010, and he stated that “his career progressed without impediment until November 2013.” Id. at 1. The defendant acquired Colomer, a beauty care company based in Spain, in August 2013. In November 2013, it named Colomer’s CEO as its new CEO and President.

The plaintiff claimed that he played a key role in integrating the two companies, which included reviewing Colomer’s regulatory compliance. He reported concerns about Colomer’s facility in Barcelona to the new CEO. He claimed that the CEO became angry and told him not to discuss regulatory or safety matters with him in order to maintain “plausible deniability.” Id. at 15. From then on, the CEO allegedly harassed and belittled the plaintiff, often in front of colleagues.
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Thorax_pa_peripheres_Bronchialcarcinom_li_OF_markiert.jpgIn September 2014, the story of an employer who laid off a woman shortly after learning of her cancer diagnosis went “viral,” moving quickly from local to global news coverage. The story highlights an important question for employees and their advocates about how state and federal employment laws protect people when they are diagnosed with cancer or another serious illness. Federal laws like the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) offer some protection, but they do not apply to many small employers. State laws, such as New Jersey’s Law Against Discrimination (LAD), sometimes offer broader protections.

A local news site in Pennsylvania reported on a woman who notified her employer of about 12 years that she had been diagnosed with cancer. The employer reportedly sent her a handwritten letter informing her that that he was laying her off without pay, noting that she would not be able to fulfill her employment duties while also undergoing cancer treatment. The story took off when a family member posted a copy of the letter to the internet.

The woman has avoided media attention and is reportedly focusing on her treatment. The employer has stated that everyone has misinterpreted the letter, and that he intended to help her by giving her time away from work. Local news reported that he did not contest her unemployment claim, which gives her 26 weeks of benefits. Nothing else has appeared in the news about the story since mid-September.
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3711612611_74ed7eaa1d_z.jpgAbout half of all U.S. states, including New Jersey, and the District of Columbia have enacted legislation prohibiting employers from discriminating based on sexual orientation. In many states, these laws also protect gender identity and expression. Federal law still does not provide explicit protection in these areas. City and county governments have stepped up in many of the states that lack statewide protection. Some city ordinances only apply to public employment, and some only cover sexual orientation. Many, however, apply to both public and private employment and cover gender identity as well as sexual orientation.

A rather dramatic fight over the issue occurred recently in Pocatello, Idaho, where voters narrowly defeated a proposal to repeal an ordinance that the voters passed last year. The ordinance went on to survive a court challenge and a recount.

At least eight cities in Idaho have enacted non-discrimination ordinances that include both sexual orientation and gender identity in both public and private employment. The Human Rights Campaign lists five: Boise, Coeur d’Alene, Ketchum, Moscow, and Sandpoint. Idaho Falls passed a non-discrimination ordinance in September 2013, and Victor, a small town near the Wyoming state line, enacted one in June 2014. Pocatello’s ordinance, described in more detail below, passed two public votes in the space of one year. At least two Idaho cities, Meridian and Nampa, prohibit discrimination based on sexual orientation and gender identity in public employment only. Lewiston and Twin Falls limit protection to discrimination based on sexual orientation in public employment.

Voters in Pocatello, a town of just over 50,000 in the southeast part of the state, passed the ordinance by a popular vote in June 2013. It amended the municipal code to include sexual orientation and gender identity in the list of protected classes, finding that “discrimination on the basis of sexual orientation and gender identity/expression must be addressed, and appropriate legislation enacted.” Pocatello City Code § 9.36.010(A).
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file0001300605042 morguefile username click.jpgA New Jersey law that is scheduled to take effect on October 1 will require public and private employers with 25 or more employees to grant job-protected leave to the victims and certain family members of sexually violent and domestic violence offenses. The New Jersey Security and Financial Empowerment Act (SAFE Act) provides workers with up to 20 days of unpaid leave in any 12-month period. Leave may be taken in order to seek medical treatment, obtain assistance from a victim services organization, seek psychological counseling, speak with an attorney, attend or prepare for court proceedings, and take specified safety actions such as relocating.

In order to utilize the provisions of the Act, an employee must have worked at least 1,000 hours during the preceding year and all leave must be used in the 12 months immediately following the reported act of violence. Where possible, workers who take leave pursuant to the SAFE Act are required to provide their employer with advance written notice. All SAFE Act leave must be taken in increments of one day and any leave must be taken concurrently with leave requested under the New Jersey Family Leave Act and the federal Family and Medical Leave Act where applicable. Additionally, a New Jersey employer may request documentation related to the act of violence. Such documentation must be maintained in a confidential manner and may not be disseminated without the express written permission of the employee.

The provisions of the SAFE Act prohibit an employer from harassing, terminating, discriminating against, or engaging in retaliation against a worker who takes leave under the new law. If an employer violates this requirement, a worker may file a civil lawsuit against the company within one year of the alleged incident. An employee who suffered discrimination or retaliation for taking leave pursuant to the SAFE Act may be eligible to receive compensation for lost wages and benefits, emotional distress, attorney’s fees, and other damages. In addition, an employer who violates the Act may be subject to a significant civil fine.
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