FMLA Discrimination

November 4, 2013

New Jersey Law Allows Victims of Domestic Violence and Sexual Crimes to Take Unpaid Work Leave

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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October 31, 2013

ADA Protects Workers Suffering From Postpartum Depression in New Jersey, New York, and Nationwide

by Resnick Law Group, P.C.

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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July 16, 2013

Breast Cancer Patient Settles Discrimination Lawsuit Filed Against New York Employer

by Resnick Law Group, P.C.

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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March 13, 2013

FMLA Claim Dismissed Based on Plaintiff’s Vacation During Leave

by Resnick Law Group, P.C.

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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November 7, 2011

Family and Medical Leave Act Provides Protection for New Jersey Workers, but Still Confuses Some

by Resnick Law Group, P.C.

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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May 27, 2011

New Jersey Laws Prohibit Discrimination Based on Family Leave

by Resnick Law Group, P.C.

IF you need time off work because of the birth of a child, death in the family, adoption proceedings or other eligible reason, your company can’t discriminate against you, the New Jersey Family Leave Act says.

If your company is giving you problems because you had to take time off work for a family emergency, you may have been unfairly discriminated against based on the New Jersey Family Leave Act. If so, contact New Jersey Employment Lawyers immediately. There is also protection for employees under the federal Family and Medical Leave Act.New Jersey’s law requires covered employers to give employees time off from work in certain situations:

Birth of a Child
Adoption of a Child
Serious illness of a parent, child or spouse

Employers with 50 or more employees anywhere in the world are required to follow the law for New Jersey employees. The law requires employees to be at work for at least 12 months at the job and work 1,000 hours in a 12-month time frame to be eligible. If those conditions are met, the employee’s job is protected for up to 12 weeks of leave in a two-year period.

The main difference between the New Jersey Leave Act and the federal Family and Medical Leave Act, is the ability of an employee under the federal law to take leave for his or her own medical condition. Also, while the duration and the timing of the leave under the state law is 12 weeks in any 24 month period, under the federal law the leave permitted is 12 weeks during any 12 month period.

Under both acts, the time off is unpaid, unless the company has a specific policy paying employees for the time off. But the New Jersey law also provides some exceptions. For instance, employers can deny leave to employees whose base salaries are in the highest top 5 percent of all employees or if they are among the seven highest paid employees if their absence would have a substantial negative effect on the business.

Because these can be complicated issues, they require an experienced New Jersey employment law attorney. Don’t hesitate to call so we can put our knowledge to work for you.
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May 20, 2011

New Jersey Employment Law Protects Veterans

by Resnick Law Group, P.C.

New Jersey Employment Lawyers are proud of our country’s armed forces and veterans who have put their lives at risk for our safety and liberty.

And that’s why we fight so hard to protect our military veterans who are discriminated against when they apply for jobs or while they are employed. The New Jersey Law Against Discrimination prevents companies from unfairly discriminating against members of the armed forces.The law states employers can’t give preferential treatment to other employees over you in hiring or by giving different terms of employment based on membership in the Armed Services. However, the law doesn’t prohibit a company from not hiring a member of the military who has already received orders to report for active duty. Federal law may vary, however.

The Uniformed Service Employment and Reemployment Rights Act is a federal law that is intended to ensure those who serve or have served in the military are not disadvantaged in their civilian careers, are reemployed without delay once returning from duty and aren’t discriminated against as a result of their service.

This protection applies to members of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard or Air National Guard. If you are living in New Jersey or New York and you feel a company or your employer is treating you unfairly compared to coworkers, please call. We have been protecting the rights of our military members for nearly 30 years.

The Family & Medical Leave Act, commonly applies to people taking time off for births, deaths and illnesses in the family. But the act can also apply to the military who are called into active duty. Some examples of how the act can apply to military members is if you’re deployed with a week or less of notice, if you’re required to participate in military related activities and if you have to attend counseling that is needed because of your active duty.

These laws are lengthy and complex, so if you feel you have been discriminated against because of your service, call for a consultation. We will help you determine the best course of action to protect your rights.
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