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Articles Posted in FMLA Discrimination

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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A 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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In 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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About 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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A 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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An Indiana-based power grid company recently agreed to settle a disability discrimination lawsuit for more than $90,000. The United States Equal Employment Opportunity Commission (EEOC) reportedly filed the lawsuit against Midcontinent Independent Transmission System Operator (MISO) in response to a complaint filed by a former employee who was allegedly terminated as a result of a medical leave request related to postpartum depression treatment. MISO reportedly fired the employee for lack of attendance despite that the leave she requested was allowed by company policy. MISO also apparently told the employee that she could not be absent due to the critical nature of her job duties. Still, the company purportedly waited nearly two months after her requested return date to fill the former worker’s position.

According to the EEOC, the former worker’s postpartum depression severely limited more than one of her major life activities for a substantial period of time. Because of this, the agency charged that it was a protected disability pursuant to the Americans with Disabilities Act (ADA). Under the ADA, U.S. employers must provide reasonable accommodations to disabled workers unless the accommodation would cause undue hardship for the employer.

As part of a consent decree, the federal court ordered MISO to pay the former employee $90,500, provide ADA training to company workers, provide annual disability request and compliance reports to the EEOC, and notify other workers about the lawsuit and settlement. The EEOC is also tasked with monitoring company compliance with the ADA over the course of the next three years.
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A 59-year-old breast cancer patient has settled her age, gender, and disability-related discrimination lawsuit filed against law firm Proskauer Rose in New York State Court in 2011. The woman, who acted as the firm’s Chief Financial Officer (CFO) until she was terminated in March 2011, claims the law firm began mistreating her following her cancer-related medical leave. According to the woman, she was marginalized and demoted while a less qualified man was promoted to the position of CFO despite her nearly 20-year history with the firm.

The former CFO alleges that women are intentionally and “conspicuously” absent from Proskauer Rose leadership roles. The woman reportedly believes the law firm sought to undermine her authority after she returned from medical leave related to her cancer treatment. She stated the firm also elected to separate her from the rest of the organization’s employees when a new headquarters was established in another building. Earlier this month, the parties agreed to settle the matter and discontinue the case pending before the New York court. The terms of the settlement were not disclosed.

Unfortunately, this case demonstrates that no employer is immune from engaging in unfair or illegal discrimination. Although women’s rights in the workplace have come a long way in recent generations, women from all walks of life are still unfairly discriminated against on a regular basis. Whenever an employer treats female employees differently based solely on their gender, discrimination has occurred.

Depending on the situation, workers in New York and New Jersey have a right to take up to 12 weeks of normally unpaid medical leave for a serious health condition. Prior to taking such leave, an employee must provide reasonable notice to his or her employer. At the conclusion of a worker’s medical leave, the employee is normally entitled to return to the same or a substantially similar position within the company. The laws related to medical leave are complex and some employers or positions are exempt from medical leave requirements. If you feel you were harassed, fired, or mistreated at work as a result of a medical leave request, you are advised to contact an experienced employment law attorney to discuss your case.
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The Family and Medical Leave Act (FMLA) allows employees to take unpaid leave for medical conditions or to care for a family member. It also prohibits retaliation by employers for taking leave. A federal court recently dismissed a claim for violation of FMLA rights based on evidence that the plaintiff made false statements to her employer regarding her condition during her leave. Lineberry v. Detroit Medical Center, et al, No. 11-13752, slip op. (E.D. Mich., Feb. 5, 2013). The court held that the employer’s termination of the plaintiff was justified based on the plaintiff’s conduct, which violated the employer’s policy and was not consistent with her stated reasons for needing FMLA leave. Before bringing a case for FMLA violations, or any other employment law claim, employment attorneys should carefully review the case that the employer could make against the plaintiff.

The plaintiff, Carol Lineberry, worked as a registered nurse at Detroit Medical Center (DMC), receiving positive performance reviews. She suffered an injury while moving stretchers on January 27, 2011. A doctor employed by DMC recommended that she not return to work. DMC approved her for FMLA from January 27 to April 27, 2011, and paid her $3,636.57 for short-term disability benefits for the period from March 5 to April 16.

The plaintiff had already planned and paid for a vacation to Mexico before her injury. The doctor approved the vacation, scheduled for February 26 to March 2, saying that the trip would not impede her recovery. During and shortly after her vacation, co-workers reported seeing pictures posted to the plaintiff’s Facebook page of her laying on the beach and riding in a boat, as well as pictures of her holding her grandchildren. She also allegedly described various activities on Facebook that seemed inconsistent with her injured state.
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Despite being in place for years, the Family and Medical Leave Act, commonly referred to as the FMLA, protects employees who take time off for family or medical-related problems. It ensures that employers don’t retaliate against employees for taking the time off.

New Jersey Employment Lawyers have seen workers discriminated against and punished for taking time off work, even though state and federal law allow people to take time off from work and still maintain their jobs.The federal act allows an employee to take off up to 12 weeks of job-protected, unpaid leave during any 12-month period for these reasons:

  • Birth and care of a child or placement for adoption or foster care
  • Care of an immediate family member
  • Care of the employee’s own health condition

Here’s a Question and Answer session about the New Jersey Family Leave Act of 1993:

Q: How is the 12-month period calculated under FMLA or NJFLA?

Employers may select one of four options for determining the 12-month period:

  • the calendar year;
  • any fixed 12-month “leave year” such as a fiscal year, a year required by State law, or a year starting on the employee’s “anniversary” date;
  • the 12-month period measured forward from the date any employee’s first family leave begins; or
  • a “rolling” 12-month period measured backward from the date an employee uses FMLA or NJFLA leave.

Q: Does workers’ compensation leave count against an employee’s family or medical leave entitlement?

It can. Family and medical leave and workers’ compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as family or medical leave.

Q: If an employer fails to tell employees that the leave is FMLA or NJFLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA or NJFLA leave?

In most situations, the employer cannot count leave as NJFLA or FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as NJFLA or FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as NJFLA or FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

Q: Which employees are eligible to take FMLA and NJFLA leave?

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, have worked for at least 1,000 hours over the previous 12 months, and work at a location with at least 50 employees.

There are additional questions and answers on the State of New Jersey web site regarding FMLA and NJFLA. Discrimination based on aiding one’s family or one’s own health is unlawful and must be investigated.
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