Articles Posted in Family Medical Leave Act

Family Medical Leave has been around for a while now, but the Administrative Office of the US Courts just released a report stating that there was a 26.3 % rise in Family Medical Leave Act lawsuits in 2014. There may be a number of reasons for this rise. So what should you do if you are an employer dealing with Family Medical Leave requests and what should you do if you are an employee that feels like you have been wrongly denied your FMLA? Well, here are some suggestions and tips to keep in mind for employers as well as employees. If you have more questions or feel that you may have a FMLA case, then you should speak to one of our FMLA lawyers with the Higgins Firm. We will work with you to make sure your rights are upheld.

It is important to first discuss the many reasons why these cases may be on the rise. One of the main reasons for the increase is because the laws around Family Medical Leave are becoming more well known and the Department of Labor is also expanding the law to include same-sex couples. So, it makes sense that if more people know about the law that more people will use it. The second reason is that Family Medical Leave is defined as a “serious health condition”. This is very vague and therefore, many employees with chronic conditions may find it easy to request and be given the leave.

Many medical professionals also seem very willing to offer certification to employees requesting intermittent FMLA leave even if the reason is not very clear. Also, once an employee receives certification for FMLA, it often becomes easier for them to take the leave for a day or two if they just want a day off because they will not face consequences for that time. Finally, lawsuits may be increasing because many employers may not fully understand the FMLA laws and their requirements. It is important for employers to learn about the laws so they do not fail to realize when an employee may legitimately need the leave. This will help to avoid violations and thus more lawsuits.

Probably the greatest change in employment law cases over the past decade has been the impact of emails and texts when piecing together the real reasons for a termination. When we first began litigating Employment Law Cases it was often hard to get a case to a jury because an employer would claim a legitimate reason for firing the employee and unless an honest independent witness could be found, refuting the reason could be very difficult. Then that all changed. Hello computers. Now most everyone communicates via email. Although companies try to be cautious of what they write it can be hard. A quick message to a co-worker complaining about a medical leave request or the annoyance of accommodating a disability can reveal the true motives behind a termination. Of course, this is a two way street. Employees picture of a wild night out on Facebook the day before the call in “sick” can sink a case just a quick.

A great example of the impact of emails can be found in a Family Medical Leave Act retaliation case that was recently filed. In this case, a director of communications asked of FMLA leave for knee replacement surgery. He informed his boss that he would need six to eight weeks of leave to get better. Ten days after the request the boss recommended that the employee’s position be elimated and he was terminated.

After the lawsuit was filed the company claimed that the FMLA request had nothing to do with the layoffs. After all the economy was sluggish and other layoffs had been made as a result. So how can the employee that this isn’t true? Well a decade ago he probably couldn’t have proven the real motive be an unguarded email changed everything. Specifically, after the case had started a review of the company emails revealed a message from the boss that basically said we may as well lay the employee off because he will be on leave anyway. So now the employee has enough to take his case to the jury. He can present facts that can put the termination in real light. How long had he worked there, his good employee reviews, raises, all that he did for the company.

So both employees and employers should take a lesson from this. I don’t think the lesson is “be careful what you say in your emails.” The lesson should be lets treat people right under the law. As a boss, don’t be flippant about an FMLA request because you may be asking for it someday. People need a little help sometimes and that is okay. However, we all know there will be good employers and bad employers. As such, for the bad employers you better watch what you say in those emails because I guarantee that we are going to review them all.
Continue Reading

The Family Medical Leave Act allows an employee that is eligible for the leave to take it and prohibits employers or businesses from discouraging an employee from taking their leave. If you or someone you work with has been terminated after taking your Family Medical Leave when you are eligible then you should talk to a Tennessee employment and FMLA lawyer as soon as possible.

According to this lawsuit, Bob Lyman stepped down as the boys’ varsity head coach in November of 2011 after learning from his doctor he had a heart arrhythmia. Lyman then planned to work with new head coach Mike Matheson as an assistant, a less demanding role. Bob Lyman filed this lawsuit claiming that the school and the district did not inform him of his rights under the Family Medical Leave Act and did not reinstate him to his job post after he took the medical leave.
According to the claim, Lyman approached School principal Parley Jacobs on Oct. 7, 2011, to inform him of his diagnosis and request a temporary leave. Lyman said he told Jacobs that, according to his physicians, the condition could be cured with medication, diet, and rest and that his recovery would be aided by reducing his stress. Lyman also told the principal he wanted to continue to coach once he was healthy again. Lyman asked the principal to name an assistant as interim coach for the 2011-12 season, but Jacobs refused and said the position would have to be opened to applicants. Lyman claims Jacobs did not bring up his rights under FMLA during that meeting. The principal later informed Lyman that FMLA did not apply to coaching positions. Lyman gave Jacobs an official letter resigning as head coach in October. In January, Lyman was cleared by doctors as having a clean bill of health and he requested reinstatement from Jacobs. Jacobs informed Lyman that coaching jobs aren’t covered by the act and according to district policy; he would not be given his job post back. Jason Olsen, school district spokesman, declined to comment on the lawsuit.
Continue Reading

Veteran Employment Lawyer, Anne Williams, has joined our firm. Recently Anne was interviewed about her role at our firm. We are excited to have join us. You an watch the interview below:

 

 

Anne handles a variety of employment matters including, overtime and minimum wage violations, Family Medical Leave Act claims and Americans with Disability Act Violations.
Continue Reading

When an employee is suffering from a medical condition or one of their family members is, their employer is required by law to make them eligible for twelve weeks of unpaid, job protected leave per year under the Family Medical Leave Act (FMLA). Unfortunately, there has been some confusion over what constitutes sufficient notice to trigger the FMLA. A new case may shed some light on those requirements.

According to this case, Jamie Lichtenstein, a psychiatric technician, telephoned her employer before her shift was to begin and informed them that she was “currently in the emergency room because her mother was taken to the hospital by ambulance and Lichtenstein informed her employer that she would be unable to work that day. A few days after the incident Lichtenstein provided her employer with additional information about her mother’s medical condition and requested a leave of absence for a little while. However by this time, the employer had made the decision to terminate Lichtenstein for issues unrelated to her mother’s ER visit.

In the lawsuit filed against her employer Lichtenstein claimed FMLA interference and retaliation. She alleges that her absence had constituted protected leave and that her employer had considered the absence when deciding to terminate her employment. The district court dismissed her claims and concluded that Lichtenstein notice for FMLA was inadequate because it did not include enough information for her employer to conclude that her mother had a serious medical condition. During the appeal, the Third Circuit court reversed this decision and stated that, “when the leave is unforeseeable, the employee’s obligation is to provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request”. The Third Circuit court explained that Lichtenstein notifying her employer that her mother had been taken to the ER was not enough information to conclude that her mother had a “serious medical condition” but did provide enough information for the employer to determine that her mother “may have a serious medical condition” so FMLA did apply. The Court concluded that once the employee provides reasonable initial notice that FMLA may apply, it is the employer responsibility to request more information if needed.
Continue Reading

When a Tennessee employee or other employee across the United States is suffering from a medical condition or one of their family members is, their employer is required by law to make them eligible for twelve weeks of unpaid, job protected leave per year under the Family Medical Leave Act. Unfortunately, some companies find ways around this law or terminate the employee when they take the leave. If you feel that your rights under FMLA have been violated, then you should talk to a Tennessee employment FMLA lawyer right away. They will work with you and make sure you get the compensation you need.

According to this lawsuit, the American Family Life Assurance Company or Aflac violated the Family Medical Leave Act when they fired an employee who took intermittent leave because of a serious medical condition. The investigation was conducted by the U.S. Department of Labor’s Wage and Hour Division. Aflac claims that they failed to classify the leave under FMLA because the employee did not submit a timely request for the leave. The investigation by the U.S. Department of Labor’s Wage and Hour Division showed that the request had indeed been submitted in a timely manner.

Aflac has agreed to pay the former employee $16,882. As part of the agreement, Aflac is to maintain compliance with FMLA by properly classifying employees’ FMLA leave in the future.
Continue Reading

In Tennessee and all across the United States employees by law are allowed to take leave for their own medical condition or to care for a loved one under the Family Medical Leave Act. However, a new Supreme Court ruling is now limiting the lawsuits that can be filed against the government because of a Family Medical Leave Act violation. According to the ruling, state workers are not allowed to sue for their employers for compensation for violating part of the federal Family Medical Leave Act. In 2003, the court decided that lawsuits against state employers under the part of the Family Medical Leave Act concerning caring for family members were allowed.

This recent decision concerned part of the act that entitled eligible employees to take leaves to care for their own serious medical problems. The court titled this provision “self-care provision” and it was written in general neutral terms. However, some of the justices were divided about whether or not the law meant to discuss sex discrimination. Under the court’s standards, Congress does not have the authority to take away the states’ immunity from lawsuits under its power to regulate interstate commerce. Congress must depend on its power under Section five of the 14th amendment to enforce the amendments guaranteed equal protection and due process.

According to Justice Anthony M. Kennedy, “Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the Congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs.” Two other Justices agreed with his opinion. Justice Ginsburg wrote that” Suits for money under the self-care provision are still allowed against private employers, and other kinds of actions remain available against state employers.”
Continue Reading

In Tennessee and all across the United States employees who have worked at least one thousand two hundred and fifty hours are eligible to take Family Medical Leave. Employees that have not worked these required hours are usually not protected by FMLA but one court ruled recently that pre-eligible employees may be protected under the leave in certain cases.

According to this case, Kathryn Pereda worked at an assisted living facility. After eight months of working on the job, she told her boss that she pregnant and planned to take Family Medical Leave after the child was born five months later. By the time she took the leave, Pereda would be eligible for it. However, Pereda didn’t make it to five months. The company terminated her three months after her FMLA request when she was one month short of the required twelve months for FMLA eligibility.

The company claimed her performance was poor but Pereda claimed that she was a top employee before making her request for the leave. Pereda then claimed that her request was the real reason why she had been fired and filed a lawsuit against the company, claiming retaliation and interference with her right to take leave. The company claimed that the lawsuit should be dismissed because Pereda was not eligible for FMLA at the time that she was fired. The lower court agreed stating that if the law does not cover you, you are not protected.

However, when the case was taken to the appellate court, the ruling was reversed. The court stated that, “simply by requesting FMLA leave for the future, Pereda was “engaged in a protected activity” under the FMLA and the employer could not take adverse action against her.” Ruling otherwise would provide a loophole which would mean that pre-eligible employees requesting future FMLA leave could be fired without remedy.
Continue Reading

In Tennessee and across the United States, the Family Medical Leave Act allows an employee that is eligible for the leave to take it and prohibits employers or businesses from discouraging an employee from taking their leave. If you or someone you work with has been discouraged for any reason from taking your Family Medical Leave when you are eligible then you should talk to a Tennessee employment and FMLA lawyer as soon as possible. We will work with you and help to determine if you are entitled to compensation because of your employer’s actions concerning your Family Medical Leave.

In this case, Jack Bell worked for the Department of Health and Human Services as a disease intervention specialist. Bell suffered from severe allergies and ear problems. His doctors confirmed that Bell had a serious health condition and needed intermittent FMLA leave when his medical illness flared up. Bell was approved for four hundred and eighty hours of intermittent FMLA leave. When Bell often called in sick using his approved leave, this led the his work informing him that he would be placed on full time FMLA leave if he continued to use his intermittent leave and would have to get doctor’s authorization to begin working full time again. When Bell got the authorization from his doctor for full time work but continued to take his intermittent FMLA leave, his work with the county department placed him on full time FMLA leave. Bell claimed that there was no reason to use up his full time FMLA leave but after another work absence, he was terminated by the county department. Bell then filed a lawsuit against his work claiming that they were interfering with his right to FMLA leave and that he was facing retaliation for taking his leave.

After his work explained that they terminated Bell for excessive absences and did not hold us FMLA against him, his retaliation claim was thrown out. However, Bell’s claim that by his work telling him that he must take full time FMLA leave when he only needed to take intermittent leave, inferred with his right to take the leave was upheld by the 5th Circuit Court and sent back to trial. Bell claimed that his work wanted him to take full time FMLA leave so he would use it up and could then be terminated for absences that would have been covered by intermittent leave had he be allowed to use it.
Continue Reading

In Tennessee as well as all across the country, employees are not allowed to be discriminated against for their age, gender, disability, medical condition and even for pregnancy. If an employee faces discrimination for these reasons, it may go against their rights under the Family Medical Leave Act and the Pregnancy Discrimination Act. If you or someone you know feels like you have been discriminated against at your workplace or terminated for any of these reasons, then you should speak with a Tennessee employment and FMLA lawyer right away. They will work with you to determine your case and make sure you get the compensation you deserve by law.

According to this lawsuit, Ashley Shelton was placed on family medical leave in January when she was placed on bed rest indefinitely as a result of premature contractions during her pregnancy. At the time, she worked for Synergy Care Inc. In February Shelton was terminated from her job via an e-mail from her supervisor. Shelton then filed a lawsuit against Synergy Care Inc claiming Synergy hired another employee, Katy Shipp, in early 2011, when they learned that Shelton was pregnant.

The lawsuit also is accusing Synergy of interfering with Shelton entitlement to FMLA, violating the Pregnancy Discrimination Act and the Americans with Disabilities Act. Shelton is seeking damages for lost wages, salary, employment benefits, emotional pain and suffering, inconvenience, mental anguish, non pecuniary losses, punitive damages, interest, and attorney’s fees. A jury trial has been requested for the case.
Continue Reading

badges