Category: FMLA

Pregnancy Discrimination – What You Need to Know

The Pregnancy Discrimination Act was passed by Congress in 1978 as an amendment to The Civil Rights Act of 1964. Despite this being in place for nearly 40 years now, women still continue to face workplace discrimination due to pregnancy, or pregnancy-related issues. PDA applies to all employees, regardless of their length of time at a specific employer, so long as the company employees at least 15 people.

If you are pregnant (or may become pregnant), you may be wondering what pregnancy discrimination looks like and how you can protect yourself from experiencing it. Here are some of the most important facts to know about pregnancy discrimination at work.

Employers may not (because of pregnancy):

  • Refuse to hire or promote an employee
  • Terminate an employee
  • Ask interview questions that they would not ask non-pregnant applicants
  • Require employees to give notice of pregnancy (unless it is for a legitimate business purpose)
  • Discriminate against those who may become pregnant
  • Stop a pregnant employee from working if they want to and are physically able
  • Discriminate against an employee that had or considered having an abortion
  • Demand medical notes from a pregnant employee’s doctor concerning work status if they do not require them from non-pregnant employees on short term disability leave

Additionally, employers may not retaliate against an employee/applicant that makes a complaint because they feel they may have been discriminated against. Retaliation could be termination, demotion, or lowering of pay to name a few examples. However, some courts have held that you can be treated differently depending on where you work if you are unmarried and pregnant. It has been stated that religious organizations or ones working with youth may discriminate against employees who violate the organization’s principles condemning pre-marital sex. These employers would have to demonstrate that they hold males to the same standards – and are not only punishing female employees. However, these circumstances are few and far between, and this exemption does not apply to most employers.

Employers must:

  • Hold open a job for pregnancy related absence as long as they would for non-pregnancy related sick/disability leave
  • Provide health coverage on same basis as costs for non-pregnancy related medical conditions
  • Provide the same level of benefits for spouses of male employees as they do for female employees
  • Grant pregnant women on leave the ability to accrue seniority, vacation, pay increases, and temporary disability benefits in the same way as those on leave not due to pregnancy
  • Allow appropriate time/place for lactation purposes, including a private area to pump breast milk

It is important to also consider that a woman may have additional rights under programs such as FMLA or CFRA (in California). Under FMLA (Family Medical Leave Act), a pregnant employee may be entitled to up to 12 weeks of unpaid leave so long as they have worked for the employer at least one year, during which time they worked at least 1,250 hours. Also, the company must employee at least 50 people in a 75 mile radius. This differs only slightly from CFRA (California Family Rights Act) which may allow an additional 12 weeks of unpaid leave after the birth of a child for bonding and care purposes. CFRA does not cover pregnancy as a “serious health condition” and therefore would have to be taken after the exhaustion of either FMLA or Pregnancy Disability Leave, which run concurrently. The eligibility requirements for CFRA and FMLA are the same. Both allow employees to take time off to care for either themselves or a family member. Each includes same-sex spouses in the eligibility, but only CFRA includes eligibility for Registered-Domestic Partners.

If you feel you may have been discriminated against because of your pregnancy or a pregnancy related issue, please call our firm for a free consultation. No woman should have to feel shame for being pregnant, especially not in the workplace.

 

Sources:

http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/pregnancy-discrimination-act/

http://employment.findlaw.com/employment-discrimination/pregnancy-discrimination-in-the-workplace.html

https://www.eeoc.gov/laws/types/pregnancy.cfm

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiadifferencecfrafmla.aspx

https://postdocs.ucsf.edu/fmla-and-cfra-comparison

 

FMLA

Superintendent’s wrongful discharge, FMLA retaliation claims valid

On November 14th, the United States District Court for the Southern District of Ohio Eastern Division granted and dismissed portions of the Defendant’s (CB&I Constructors) Motion for Summary Judgement, which aimed to throw out certain claims alleged by the Plaintiff (Lightner). The Defendants wished to dismiss his assertions of FMLA retaliation, wrongful discharge, and FMLA interference. Only the latter ended up being dismissed.

Evan J. Lightner was employed as a Site Superintendent by CB&I Constructors from July 2009, through June 2014. During most of that period, he was considered an exemplary employee, having received positive reviews of “meeting or exceeding expectations” annually. His job as a Site Superintendent was to ensure OSHA (Occupational Health and Safety Administration) compliance, as well as supervising solid waste and landfill development projects. Lightner had a great amount of experience in the field, having worked for years prior in similar supervisory positions and receiving special training/certification from OSHA.

Lightner was dealt a devastating blow when his wife was diagnosed with cancer in August 2011. His then supervisor and Operations Manager Mike Mehalic told him that the employers would be “more than happy” to help him care for his wife, and helped Lightner reach out to Human Resources. He was granted intermittent FMLA leave when needed, and stated he was “very happy” with the support he received from the company.

Then, things seemingly began to change in 2012 when Greg Cooper replaced Mehalic as the Operations Manager. It wasn’t until July or August of 2013 however that the situation started taking a turn for the worst. Lightner brought unsafe situations he had noticed to the attention of Cooper and another supervisor that acted as the Project Manager in the Solid Waste Group, Josh Broggi. Lightner stated that he noticed unsafe dump truck operations, as well as observing workers that were “unqualified and untrained” welding pipes. Despite his concern, Cooper and Broggi assured Lightner that the workers had enough prior experience to make up for their lack of formal training and certification.

In October 2013, Lightner and his co-workers began working on a project in Miami, Florida. Upon arrival at the site, Lightner noticed the same aforementioned “untrained and uncertified” employees completing welding tasks. Once again, he expressed his concerns about this to Broggi. Both Cooper and Broggi responded by telling Lightner that it was “too costly” to have the employees trained and certified. Lightner persevered in attempting to remedy the problems, having telephone and in-person conversations on the subject with the Division Safety Manager Greg McElroy. This supervisor assured Lightner that he had discussed the matter with Broggi and Cooper, and promised to have the employees appropriately trained “in the very near future”. However, that never happened.

Not only were the employees not trained, but their performance actually seemed to get worse as time went on. The environment became so dangerous in the eyes of Lightner that he believed the employees should either be dismissed, or the site should have been shut down entirely. Yet again, Lightner made desperate calls to Cooper and others. Cooper did fly to Miami in order to observe the situation for himself. Despite having observed several concerning things, such as employees not being able to properly operate an “off-road dump truck without causing damage”, he told Lightner that it would “be easier to hire five of the untrained employees and get rid of [him]”.

Cooper also commented that the employees were the “best the company could afford and still turn an adequate profit.” The reason for Cooper’s concern about profitability seems to stem from the fact that CB&I was in the process of acquiring another company at the time. This meant that, according to Cooper, they needed to “do whatever was possible” to ensure the transition period went smoothly. Apparently, this included not reporting safety incidents. Lightner’s job became blatantly threatened as Cooper instructed him not to report a particular incident involving a bulldozer, or else “be the person that left before the other employees did”.

Similar incidents continued to occur, then in May 2014, Lightner noticed a lump in his neck which seemed to be growing rapidly in size. As his doctors advised, he underwent a procedure to remove the mass so a biopsy could be performed. The lump turned out to be benign, but due to the nature of the procedure, Lightner and Cooper discussed him taking 3-4 weeks off. The very next day, Cooper called Lightner and told him that he was likely to be “furloughed” due to various business reasons. On June 2nd 2014, this indeed came to fruition and Lightner was let go allegedly as part of a reduction in force.

 

Sources:

http://www.employmentlawdaily.com/index.php/news/reduction-of-one-suggested-supervisor-was-fired-for-reporting-unsafe-conditions-seeking-fmla-leave/

http://hr.cch.com/eld/LightnerCB&I111416.pdf

 

Specifying California Leaves and Kin Care

The California State Legislature is looking to amend various labor laws associated with employee leave rights. Several bills seek to expand rights afforded to employees and to widen the net of employers it effects.

As the law stands currently, an employer who directly employs 50 or more persons within a 75 mile radius may not discriminate or retaliate against an employee who requests to take a medical or family care leave. Senate Bill 406 seeks to lower the threshold from 50 employees to 25 employees, thus including more employers and narrowing the “small business exemption.”

Family and medical leaves allow employees to care for children, ailing parents or spouses, or newborn bonding. The bill would further expand available reasons to take said leave. The term “child” would be redefined to include biological, adopted, and foster children as well as step children, legal wards, children of a domestic partner or anyone else who stands in “loco parentis.” Further the term “parent” will be expanded to include parent-in-law and grandparent. Other terms to be included in the bill: grandparent, grandchild, sibling, and domestic partner.

Source: Senate Bill 406

Quarter Million for FMLA Rights

In 2010, a male employee of an office supply company went through the trial of his life—his wife was critically ill, and he had to inform his company that he needed to take care of her. The employee specifically worked for a subsidiary of a large chain, meeting the threshold of fifty or more employees for the federal Family Medical Leave Act (FMLA).

Though company was obligated to provide FMLA, and the employee was eligible for it, the former failed to inform the latter of his rights. FMLA allows for an employee to care for a family member, in this case his spouse, for serious health issues.

For the next two years, the employee continued to eat away at his sick and personal time off and vacation days. All the while, FMLA still was not extended to the employee. The employee even telecommunicated for periods of time so that he could continue working, but still take care of his ailing wife.

After the two years of struggling to balance work with his wife’s condition, the company evaluated the employee’s performance. They questioned his obligation to the company and determined he was not performing up to business’s standards. He was terminated shortly thereafter.

On the former employee’s behalf, the federal Department of Labor investigated the terminated and subsequently filed a lawsuit in 2013. After another two years of litigation, the company settled with the Labor Department, recovering a $250,000 settlement.

Source: HR Watch Dog CalChamber

Employers Can’t Ignore Disabled Employees’ Attempts To Return To Work

Very few of the thousands of employment cases filed every year go to trial, but in a recent case an employee plaintiff not only took her case all the way to trial, but also won.

The employee became disabled during her employment and had to take time off work.  When she attempted to return to work with restrictions on how she could work, the company just refused to acknowledge her.  She contacted the company, with no response.  She sent a certified letter to the company, and still not response.  In a blatant violation of its duty to engage in the interactive process and attempt to accommodate a disabled employee so she could come back to work, the company simply chose to ignore her and hope that she went away.

The company’s defense as trial was that it didn’t matter what the company did because the employee was physically unable to do the work at all.  Following the law to the letter, the judge recognized that the law doesn’t allow that kind of lazy, one-sided decision-making.  Even if the company was right, it was still required by law to communicate with the employee and engage in the interactive process with the employee of attempting to make that determination.

This is a fight employers and employees have too often: if the employer thinks the employee can’t physically do the job, why should the employer bother asking for doctors’ notes or paperwork or go to the effort of meeting and talking with the employee?  The answer is simple: because the law absolutely requires it.

The plaintiff in the recent trial recovered $53,608 in wages she lost because of the company’s violation of laws protecting disabled employees and refusal to work with her to see if she could go back to work.