Employer Extending “Medical Leaves of Absence” Beyond 12 Weeks Creates an FMLA Trap for Unwary Employees

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An opinion letter issued last week by the U.S. Department of Labor (DOL) makes clear that neither employers nor employees can decline to designate Family Medical Leave Act (FMLA)-qualifying leave as such. DOL also made clear in its letter that while employers are free to adopt leaves policies more generous than the FMLA, they cannot extend the FMLA's protections beyond 12 weeks (or 26 weeks for military caregiver leave). The effect of these interpretations can create a trap for the unwary employee.

 When an employer determines an employee needs leave because of an FMLA-qualifying reason, that leave must count toward his or her FMLA allotment, even if the employee requests otherwise. This means that employees cannot, for example, opt to take employer-provided sick or vacation time first; FMLA leave would have to run concurrently. And even if the employer chooses to grant more leave than the 12 weeks required by law, the employer cannot extend the law’s job protection to those additional weeks.

Here’s an example: An employee is out on FMLA leave due to a surgery or some other serious health condition. Near the end of the 12-week FMLA period, the employee’s doctor indicates that just a couple more weeks of leave would be beneficial medically.  The employee asks his or her employer and the leave extension is granted.  Then at the end of the leave period (now 14 weeks because of the extension) the employer says things have change and the employee had to be replaced or his/her job was eliminated.  Does the employee have protection under the FMLA in this scenario?  Probably not. 

Over the last few years, we have seen many employers building in FMLA extensions into their medical leave policies.  The policies often provide for 15 weeks of “Medical Leave” rather than the 12 weeks mandated by law. And, while more leave seems like a good thing, it can be a trap. This is because only the first 12 weeks of the 15-week medical leave period has job protection enforceable under the FMLA. If the employee stays out beyond 12 weeks, their job is no longer protected by federal law, even though the employer’s own policy granted 15 weeks of medical leave. 

Are extended “Medical Leave” policies an example of companies being generous or are they carefully laid traps for unwary employees?  A little of both perhaps. But the bottom line is that employees must remember that no matter what anyone at the company tells you, you only have FMLA job protection for the 12 weeks mandated by the statute.  

 

Want to learn more about the FMLA?  Start here. 

 

 

Women “Treated Like a Piece of Meat” at the V.A.

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The New York Times had an enlightening, if disheartening, article this past week about the rampant sexual harassment that female veterans face when they attempt to obtain medical care at the V.A.

An entrenched, sexist culture at many veterans hospitals is driving away female veterans and lags far behind the gains women have made in the military in recent years, veterans and lawmakers of both parties say. Although the Department of Veterans Affairs has scrambled to adjust to the rising population of female veterans and has made progress — including hiring more women’s health care providers, fixing basic privacy problems in the exam rooms and expanding service to women in rural areas — sexual harassment at department facilities remains a major problem.

Women say it is galling that such a demeaning atmosphere persists, especially for the roughly 30 percent of female veterans who have reported being harassed or assaulted while serving in the military.

Read the whole article here….

Flight Attendants File EEOC Charge Alleging American Airlines Discriminates Against Women

AA Accused of Discrimination

AA Accused of Discrimination

The union that represents more than 27,000 American Airlines flight attendants has filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that the airline's attendance policy discriminates against women. The flight attendants charge that the attendance policy "fast tracks" flight attendants — a group that is 75% female — to potential discipline and discharge actions, while pilots — who are overwhelmingly male — are not subject to the policy.

This type of case is called a “disparate impact” case. Employment actions and policies can be problematic even if they do not intentionally discriminate against a protected group of workers. The law recognizes both "disparate treatment" discrimination (intentional acts of overt discrimination) and "disparate impact" discrimination (neutral policies and practices that have a disproportionate, adverse impact on a protected group and that cannot be justified by business necessity).

While disparate impact cases can come up with regard to any protected class (in this case, gender) they actually most often arise in the context of alleged age-based discrimination. Layoffs are often alleged to be based on age — a layoff targeting high-earning employees might have a disproportionate impact on long-tenured employees who happen to be older, for example. Similarly, recruiting efforts that focus on college campuses might unfairly exclude older workers.

Read More…

IKEA Hit with Yet Another Age Discrimination Lawsuit

IKEA Hit with 5 Age Discrimination Lawsuits

IKEA Hit with 5 Age Discrimination Lawsuits

Alleging the company discriminates against its older employees and fosters a "corporate culture of age bias," IKEA is the target of a newly-filed class action lawsuit (Paine v. IKEA Holding US, Inc. et al., No. 19-cv-00723 (E.D. Pa. Feb. 21, 2019)). Since February 2018, at least five current and former employees have filed lawsuits against IKEA alleging age discrimination.

The lawsuits have all been filed in a period of just over a year. And they all argue that Ikea has fostered a workplace culture of discrimination, which systematically recruits and promotes young talent rather than workers over 40. The problem is alleged to have become even worse, once the company began an aggressive restructuring effort in 2017.

Whether protected-age job seekers can pursue lawsuits under the federal Age Discrimination in Employment Act without showing the alleged bias was intentional is a question on which federal courts are divided. The U.S. Supreme Court in 2017 declined to consider the issue in a case against R.J. Reynolds, leaving in place a holding by a federal appeals court in Atlanta that the ADEA doesn’t permit disparate impact or unintentional bias claims by job applicants. But a federal district court in California reached the opposite conclusion in a case against PricewaterhouseCoopers. Ultimately, this split in the circuits will have to be decided by the U.S. Supreme Court.

Age discrimination as a part of a large company restructuring can often be something that appears obvious while being simultaneously very difficult to prove. To make matters even more challenging, companies often offer severance packages to those being laid off, giving them only a few weeks to consult with an attorney and consider the issues.

If you find yourself the subject of a proposed layoff and you believe you may have been targeted due to your age (over 40) or if you have been given a severance agreement to review and consider, start looking for a qualified employment lawyer right away. Finding a qualified employment attorney who represents employees rather than companies may be more challenging than you think. In Texas, a good place to start is the Find-A-Lawyer page of the Texas Employment Lawyers Association. In other states, I would suggest you start with the National Employment Lawyers Association. Both groups feature lawyers who represent employees rather than employers and both have a lot of good information available for you to review and consider.

IHOP Franchises Agree to Pay $700K and to Create an HR Department to Settle Sex Harassment Suit

IHOP Franchises Settle Sexual Harassment Suit

IHOP Franchises Settle Sexual Harassment Suit

Several IHOP franchises have agreed to pay $700,000 after the U.S. Equal Employment Opportunity Commission (EEOC) sued them, alleging they failed to prevent or correct continual sexual harassment and retaliation against employees (U.S. Equal Employment Opportunity Commission v. Lucinda Management, LLC, et al.No. 2:17-cv-02458 (D. Nev. Feb. 19, 2019)). They will also have to create an HR department of professionals with experience handling and preventing discrimination, harassment and retaliation.

The franchises created a hostile work environment for employees after they ignored worker complaints about harassment, EEOC alleged in its complaint. Furthermore, the restaurants allegedly retaliated against some of the employees who spoke up about the problems, behavior which included reducing work hours, groundless discipline and termination. One restaurant, the complaint said, fired an employee after the worker reported seeing a cook "regularly touch female food servers' genitals and kiss them."

The restaurants also agreed to stop using a “72-hour sexual harassment policy”, which required employees to submit complaints of sexual harassment in writing within 72 hours. This had the obvious effect of preventing valid claims of harassment from being investigated and remedied.

As a part of the settlement agreement, the franchises will work with an EEO monitor who will, among other things, ensure any harassment-related policies, procedures and practices comply with Title VII and the consent decree's requirements.

Read more here…

Fifth Circuit Upholds Ruling Against Claim of Employment Discrimination Based on Transgender Status But Leaves the Door Open to Future Argument of the Issue

Fifth Circuit Court of Appeals

Fifth Circuit Court of Appeals

In an opinion issued yesterday in Wittmer v. Phillips 66 Company, the Fifth Court of Appeals affirmed the granting of summary judgment in favor of Phillips 66 on a claim of employment discrimination based on transgender status. 

The Court of Appeals went beyond merely upholding the lower court’s summary judgment however. In its opinion, the Fifth Circuit expressly rejected the district court’s determination that Title VII prohibits employment discrimination based on transgender status

The Fifth Circuit pointed to its past precedent holding that Title VII does not prohibit sexual orientation discrimination and faulted the district court for not distinguishing this case from that precedent.  Interestingly, this decision leaves some room for the possibility that the Fifth Circuit might someday hold that Title VII does in fact prohibit transgender employment discrimination as long as the case is distinguished from discrimination based on sexual orientation, which the court has already ruled is not prohibited.

Here is the text of the Fifth Circuit opinion.

Here is a link to the Fifth Circuit oral argument.

Here is the text of the original district court opinion.