Articles Posted in FMLA Discrimination

The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to twelve weeks of unpaid leave. It is the only federal statute that provides medical leave nationwide, and it only provides unpaid leave. New Jersey is one of five U.S. states, plus the District of Columbia, to provide paid leave for new parents and for certain other purposes. The U.S. Department of Labor (DOL) revised its guidance on the accrual of FMLA leave by employees in an opinion letter released in March 2019. This guidance bars employers from delaying the designation of accrued leave as FMLA leave. It might also affect how and when employees can take leave under the FMLA or another program. If you need to take paid leave and wonder if doing so is permissible under state law, you should reach out to a New Jersey employment law attorney at your earliest convenience.

Employers with at least fifty employees must provide FMLA leave. 29 U.S.C. § 2611(4)(A). In order to be eligible, employees must have worked for the employer for at least one year, and they must have actually worked at least 1,250 hours during that time. Id. at § 2611(2). Unpaid leave is available for up to twelve weeks per twelve-month period, for reasons like the birth or adoption of a child, serious illness or injury, or caring for an ill or injured family member. Id. at § 2612(a)(1).

If an employer provides paid leave to its own employees, but the total amount of leave available under the program is less than twelve weeks, the FMLA only requires that employer to provide enough unpaid leave to bring the total amount of leave to twelve weeks. Id. at § 2612(d). For example, if an employer provides six weeks of paid family leave, the FMLA would only require it to provide an additional six weeks of unpaid leave.

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New Jersey family and medical leave laws provide eligible workers with guaranteed time off from work for the birth of a child. State and federal laws also protect workers from discrimination by their employers because of pregnancy or childbirth. A company that operates a hospital in Middlesex County, New Jersey, recently settled a lawsuit brought by a former employee alleging discrimination on the basis of both pregnancy and medical leave. The settlement includes $500,000 in damages, plus attorney’s fees.

At the federal level, the Family and Medical Leave Act (FMLA) provides eligible employees of covered employers up to twelve weeks of unpaid leave per year for certain purposes, such as the birth of a child or a serious illness. 29 U.S.C. § 2612(a)(1). The eligibility criteria are based on both the total number of employees and the number of hours worked by each individual employee. See id. at §§ 2611(2)(A), (4)(A). Employers may not interfere with employees seeking to exercise their rights under these laws, nor may they discriminate against anyone for taking legally authorized leave. Id. at § 2615(a). The New Jersey Family Leave Act (NJFLA) provides similar rights and protections, with some differences. See N.J. Rev. Stat. §§ 34:11B-3(e), (f); 34:11B-4; 34:11B-9.

Both federal and New Jersey antidiscrimination statutes prohibit discrimination on the basis of pregnancy or childbirth. Title VII of the Civil Rights Act of 1964 defines pregnancy and childbirth discrimination as a form of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating on the basis of “familial status,” which includes “being the natural parent of a child” and “any person who is pregnant.” N.J. Rev. Stat. §§ 10:5-5(ll), 10:5-12(a).

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New Jersey’s antidiscrimination statute protects workers from discrimination on the basis of multiple categories. Federal law supplements these rights, and also protects the right of qualifying workers to unpaid leave for medical purposes. Employers may not take adverse actions against employees or job applicants on the basis of a protected category, nor may they interfere with an employee’s exercise of their right to medical leave. A lawsuit filed in July 2019 in a New Jersey federal court alleges that the plaintiff’s employer committed each of these forms of discrimination. It further alleges that the employer failed to provide reasonable accommodations for the plaintiff’s religious practices and her perceived disability.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability, religion, and other factors. This includes failure to accommodate an employee’s “sincerely held religious practice or religious observance,” provided that doing so does not cause “undue hardship” to the employer. N.J. Rev. Stat. § 10:5-12(q)(1). Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of religion, including any “religious observance or practice” that an employer can accommodate without undue hardship. 42 U.S.C. §§ 2000e(j), 2000e-2(a).

The federal Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. It also requires reasonable accommodations, subject to a similar exception for undue hardship. 42 U.S.C. § 12112. In addition to a wide range of “physical or mental impairment[s],” the ADA defines “disability” as “being regarded as having such an impairment.” Id. at §§ 12102(1)(C), (3). The NJLAD’s definition of “disability” does not expressly include the perception of having a disability. N.J. Rev. Stat. § 10:5-5(q).

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Paid sick leave is a controversial subject throughout the country. Only a handful of states require it in some form. Federal law only mandates unpaid leave. Employers tend to oppose paid sick leave laws, since these laws require them to pay their employees for time they are not at work. Advocates of paid sick leave laws point out the reality that people get sick, that they need to be able to take time to rest and recover, and that many people will come to work sick if they know that the alternative is losing needed income. Sick people who come to work instead of staying home are rarely as effective at their jobs during that time, and they risk making even more people sick. New Jersey joined the small number of states that mandate paid sick leave earlier this year, when the Legislature passed the New Jersey Paid Sick Leave Act (NJPSLA). When it takes effect on October 29, 2018, this law will apply to all employers in the state, regardless of number of employees.According to the National Conference of State Legislatures (NCSL), only 10 states, including New Jersey, and the District of Columbia had mandatory paid sick leave as of May 2018. Federal law contains no provisions for mandatory paid leave for any purpose, including sick leave and parental leave. Internationally, the United States is an outlier among developed nations. A 2009 study by the Center for Economic and Policy Research (CEPR) compared paid sick leave policies in 22 countries. With the exceptions of Japan, Australia, and New Zealand, all of the countries are located in Europe or North America. The CEPR found that the U.S. is one of only three countries, along with Canada and Japan, with no paid sick leave whatsoever at the national level. At the opposite end of the spectrum, Luxembourg and Norway provide paid sick leave for up to 50 days for serious medical conditions like cancer.

The NJPSLA differs from most state paid sick leave laws in the breadth of its coverage. It defines an “employer” as “any…entity that employs employees in the State,” with no exception for small businesses. By contrast, the federal Family and Medical Leave Act (FMLA) only applies to employers with 50 or more employees, and to employees who have worked a minimum of 1,250 hours for their employer in the last 12 months. The FMLA also differs in the sense that it only requires unpaid leave.

Workers claiming sick leave under the NJPSLA are entitled to their regular rate of pay. For every 30 hours worked, workers accrue one hour of paid sick leave. Workers can carry a maximum of 40 unused hours of earned sick leave to subsequent years. The NJPSLA identifies five acceptable reasons for use of accrued sick leave:

State 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.

The 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.

The 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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Employment 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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For 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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A 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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