Atlanta Employment Lawyer Blog

Under several circumstances federal law requires that your employer allow you to take approved leave. These include taking leave to care for a new baby or a family member with a serious health condition. Additionally, if you have a serious health condition the Family and Medical Leave Act (FMLA) provides that employers must allow eligible employees to take up to 12 weeks unpaid leave.

Although some limitations exist before you may be eligible, once you meet the requirements for leave the FMLA protects you in certain ways, such as requiring an employer to restore you to your job at the same rate of pay and same benefits as before the leave.

In a recent case out of Ohio, the Sixth Circuit Court of Appeals determined that an employer had interfered with a worker’s leave and required the employer to pay double damages to a fired worker. In Thom v. American Standard, Inc. the 6th Circuit reviewed whether American Standard violated a molder’s rights when the company terminated the worker while he was on leave for shoulder surgery and before he was scheduled to return to work.

If you have questions concerning your right to take leave, or if you believe your employer interfered with your leave rights, it is important to consult with an experienced employment discrimination attorney in Atlanta to review your circumstance and determine your next steps.

Here, the company amended its FMLA policy but did not inform it’s employees of the changes. When the employee, Carl Thom, requested leave it did not let him know that the amount of leave requested would exceeed the amount of time allowed pursuant to the FMLA. Thom was then fired and the company used his excess leave as justification for his discharge.

Continue reading "Company Ordered To Pay Double Damages For Interfering With Worker's Right To Take Leave" »

In the first case of its kind, the U.S. Court of Appeals for the 11th Circuit, which includes Georgia, Alabama and Florida, considered what actions are considered protected by the Family and Medical Leave Act. Specifically in Pereda v. Brookdale Senior Living Cmtys. Inc., the appellate court reviewed whether an employee who made a “pre-eligibility” request under the Family and Medical Leave Act is protected from retaliation. In order to be eligible for protection under the FMLA, an employee must work 1,250 hours within the previous 12 months and experience a triggering event, such as the birth of a child.

If you have questions concerning whether you may be eligible to take leave under the FMLA, it is a good idea to consult with a knowledgeable Atlanta employment discrimination attorney. An attorney skilled in practicing family and medical leave law can answer your FMLA questions and provide crucial guidance concerning your next steps.

Here, a female employee – Kathyrn Pereda - was not yet eligible for leave when she first brought it up, but would be eligible at the time she gave birth to her child. Based on the “advanced notice” requirements of the Act, Pereda notified her employer of her pregnancy and her wish to take leave after the birth of her child. After she informed her employer of her pregnancy, Pereda’s supervisors began to harass her. She was placed on a performance improvement plan with “unattainable goals” and was ultimately fired.

Pereda asserted she was retaliated against in violation of the FMLA. Her employer responded that because she was not eligible for FMLA leave when she made the request, her claim for retaliation was not valid. Although the lower court agreed, the 11th Circuit reversed, finding that a “pre-eligibility discussion of post-eligible FMLA is protected activity.”

Continue reading "Pre-Eligibility Requests For Leave May Give Rise To Claims Of Retaliation in Pereda v. Brookdale Senior Living Cmtys. Inc. " »

Sometimes evidence that you have been discriminated against may be clear and direct. Other times evidence of discrimination may be indirect and is based on inference or presumption. In a recent case, Makowski v. SmithAmundsen, the 7th Circuit determined that a statement that reveals bias may be used as direct proof of job discrimination, and that these statements may be deemed “admissions” and not hearsay.

If you have questions concerning employment discrimination or believe that you have been suffered job discrimination, it is important to speak to a knowledgeable Georgia discrimination lawyer to determine your next steps.

In Makowski, a marketing director of a Chicago Law Firm sued for pregnancy bias and violations of the Family and Medical Leave Act after she was terminated following a pregnancy leave of absence.

In addition to Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination “because of” your gender, Congress has passed some additional anti-discrimination laws that protect women in the workplace. One of these protections is the Pregnancy Discrimination Act that prohibits discrimination based on pregnancy, childbirth and related medical conditions. Rather than giving pregnant women special treatment, the Pregnancy Discrimination Act simply provides that pregnant women must be treated the same as non-pregnant individuals.

Continue reading "7th Circuit Determines Statements May Be Direct Proof Of Bias In Makowski v. SmithAmundsen" »

A recent case determined that a man who was fired following surgery could bring a claim under the Family and Medical Leave Act (FMLA).

The FMLA is a federal employment law that provides protection for eligible employees to take up to 12 weeks of unpaid leave from their jobs annually under certain circumstances. These include, but are not limited to:

• When you have a serious health condition
• To care for a family member who has a serious health condition, and
• For the birth of or care of a newborn or adopted child.

If you are eligible for leave and follow all notice requirements, the FMLA protects you from adverse employment actions. This means that your employer cannot interfere with your rights to take FMLA leave by denying your request or requiring notice or disclosures beyond those required by the act. It also means that your employer must restore you to your job after your FMLA leave has ended. Additionally, the FMLA protects employees from retaliation. This means that if your employer takes negative actions against you after asking for leave, you may have a claim for FMLA retaliation.

If you believe your employer has interfered with your FMLA rights or has retaliated against you for requesting leave, you may be able to file an FMLA lawsuit. An experienced Atlanta Family and Medical Leave attorney can provide crucial advice regarding your rights.

Continue reading "Family And Medical Leave Act Claim Revived After Worker Fired For Taking Leave After Surgery In Shaffer v. American Med. Ass’n " »

Many times employees are afraid that if they take an approved leave under the Family and Medical Leave Act (FMLA), they won’t get their job back when they return. A recent case out of the Ninth Circuit has just determined that if an employer doesn’t give you your job back after an FMLA approved leave, it’s the employer’s responsibility to provide a legitimate reason why not.

Under the FMLA, certain employees have a right to take leave - such as workers who have a serious health condition, have to care for a family member with a serious health condition or to care for the birth or care of a newborn or adopted child. If you are entitled to leave and provide sufficient notice, if your employer fails to reinstate you, you may be able to bring a claim under the FMLA.

In Sanders v. Newport, a city employee – Diane Sanders - took an approved leave of absence due to health problems triggered by poor air quality and the city’s use of low grade billing paper at her office. After submitting fitness-for-duty certificates and requesting reinstatement, the city refused to allow Sanders to return, eventually firing her permanently.

Continue reading "Georgia Employers Must Show Legitimate Reasons For Failing To Reinstate Employees" »

A recent case determined a man may bring an alcoholism retaliation lawsuit against his employer under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).

Under the FMLA, employees battling “serious health conditions” may be able to take up to 12-weeks of unpaid leave. In the recent case, a male employee who was suffering from alcoholism requested leave to receive treatment. Officials at his company, John Crane, Inc., approved the leave.

But, even though the company approved the leave they still docked the employee “absence points.” Less than 2 weeks after the man came back to work, he was fired. The company blamed it on “absenteeism.”

A Texas court questioned the company’s reasons for firing the man, and Judge Janis G. Jack reached the following conclusions:

• The employer may have used “absenteeism” as an excuse to fire the employee, when they may have really been firing him for his alcoholism;
• Alcoholism could be considered a “serious health condition” entitling employees to leave under the FMLA;
• Even if alcoholism isn’t covered by the FMLA, the employee relied on his employer’s word that he was in taking the leave, so he shouldn’t be fired; and
• It could be considered retaliation to fire someone on approved leave for alcohol treatment.

Continue reading "Seeking Treatment For Alcoholism May Entitle Employees To Leave Under The FMLA" »

The Office of Personnel Management (OPM) has recently issued a memorandum requiring the federal government’s 24-hour leave without pay ((LWOP) family support policy be made available to federal employees’ same-sex domestic partners and their children.

In 1997, the 24-hour LWOP policy was established while changes to the Family and Medical Leave Act (FMLA) were being discussed. The FMLA allows eligible employees to take up to 12 weeks of unpaid leave annually for individual’s own serious health conditions, to care for a family member’s serious health condition or for the birth or care of a newborn or adopted child.

Recently, the Department of Labor broadened the FMLA to allow same sex partners leave rights to care for non-biological children when they act “in loco parentis.” However, the FMLA was not amended to include the 24-hour LWOP provision.

In order to address this provision and in furtherance of President Obama’s intention, the OPM requested that agencies permit federal employees in same sex domestic partnerships to take up to 24 hours of LWOP in a leave year for school and early childhood educational activities, routine family medical purposes, and elderly relatives’ health or care needs.

As stated in the memoranda, each agency “should analyze its existing policies and make revisions as appropriate, to incorporate language that will support Federal employees’ with same-sex domestic partners use of up to 24 hours LWOP each leave year to support the three activities.”

Although the FMLA’s scope has been broadened it remains an extremely complicated law with a number of detailed requirements, including strict time limits, complicated notice obligations and medical certification notices.

Continue reading "FMLA’s 24-Hour Leave Without Pay Policy Applies To Same Sex Domestic Partners " »

In a victory for non-traditional families, the Department of Labor, Wage and Hour Division has recently issued a clarification of what the terms “son” and “daughter” mean with the effect of broadening who is entitled to leave under the Family and Medical Leave Act (FMLA).

Under the FMLA, an employee is entitled to 12 weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The FMLA’s definition of “son or daughter” includes not only a biological or adopted child, but also a foster child, a step-child, a legal ward, or a child of a person standing in loco parentis.

Pursuant to the recent clarification, anyone who assumes the role of caring for a child regardless of the legal or biological relationship may be considered as acting “in loco parentis,” and entitled to leave. This includes same sex partners, unmarried partners, grandparents and extended family members.

In reaching this determination, the DOL reasoned that it was Congress’ intention to grant leave to employees who have day-to-day responsibilities caring for a child even if the employee does not have a biological or legal relationship to that child.

The DOL also relied on case law that provides a variety of factors used to determine whether an employee stands in loco parentis, including:

• Age of child
• Degree child is dependent on person claiming in loco parentis status
• Amount of financial support
• The extent duties associated with parenthood are exercised

Labor Secretary Hilda Solis stated “No one who loves and nurtures and child day-in and day-out should be unable to care for that child when he or she falls ill…No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”

Continue reading "Family Leave Rights Apply To Domestic Partners" »

When Congress returns from its April recess, several significant employment and labor related issues will be addressed. These include legislation prohibiting job discrimination based on sexual orientation and gender identity, fair pay and paid sick leave under the Family Medical Leave Act (FMLA).

Under current law, Title VII prohibits employment discrimination on the basis of any protected category. This means that any private employers, state and local government, employment agencies, labor organizations or federal government who employs more than 15 employees cannot discriminate against you regarding almost any employment matter – including hiring, firing and discipline.

Senate bill 1584 and H.R. 3017,the Employment Non-Discrimination Act, seek to extend the protections already in place for race, religion, gender, national origin, age and disability to “gender identity.”

The Legislation defines “gender identity” as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designation at birth.”

Other legislation being considered includes the Paycheck Fairness Act (S. 182, H.R. 12) which seeks to amend the Equal Pay Act to create greater consequences for sex discrimination regarding wages. These include non-retaliation requirements, as well as increasing penalties and providing for compensatory and punitive damages where violations occur.

Continue reading "Congress To Review New Employment Discrimination Laws " »

Many people these days are seeking alternatives to standard medical treatments, many of which do not involve licensed physicians. Do those treatments qualify family medical leave under the FMLA? And what if the treatments are taken in such a way that they basically constitute a vacation?

No and no, says a federal district court in Massachusetts. It is an open question if this case affects Georgia employment law, but it is certainly of interest.

Continue reading "Alternative Treatments, Vacations, and the FMLA" »

In order to be able to take an unpaid leave under the Family and Medical Leave Act (FMLA), you have to have worked 1250 hours over the previous year. Seems simple enough, right?

Not so fast. Figuring in overtime, flex time, commute time, home office time, and everything else can make for a complicated formula. A recent 3rd Circuit decision brings up some very interesting questions about how to calculate that hourly mark.

Continue reading "FMLA’s 1250- Hour Requirement and Pre- Leave Retaliation" »

Two bills were recently introduced into the United States Congress that, if passed, would have an important effect on the Family and Medical Leave Act (FMLA). Taken together, they would both expand the current effect of the bill and roll back some of the restrictions that the previous administration’s had imposed on that law.

Under the FMLA, which passed into law in 1993, employers must grant a leave (unpaid) of up to twelve weeks every twelve months for certain family emergencies and other medical conditions.

The Bush administration had imposed some restrictions on the FMLA which Rep. Carol Shea-Porter (D-N.H.) has proposed to eliminate in H.R. 2161, which she has called the Family and Medical Leave Restoration Act. The restrictions were posted in a November 2008 DOL final regulation.

Continue reading "Additions to FMLA Proposed in Congress" »

The U.S. Department of Labor recently updated its basic informational poster to reflect changes in the Fair Labor Standards Act, including the new military family leave entitlements enacted under the National Defense Authorization Act for Fiscal Year 2008, as well as changes in the Family Medical Leave Act (FMLA), all of which took effect on January 16th.

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

You can view the new poster here:

Continue reading "Family and Medical Leave Updated Poster" »

Under the Family Medical Leave Act (FMLA), a parent is entitled to take FMLA leave for the birth or care of a newborn child. An interesting twist on this issue was recently addressed by the Eleventh Circuit Court of Appeals (the federal appeals court with jurisdiction over the federal district courts of Florida, Georgia and Alabama) in Martin v. Brevard County Public Schools: whether a grandparent who is the primary caregiver of his grandchild is eligible for FMLA leave. In a terrific decision, the Eleventh Circuit decided in favor of the grandparent.

In the case, the employee had several children who lived with him, one of whom gave birth to a baby while the employee worked for a public school district. The newborn came to live with the employee and the employee provided substantial financial support to the child; the child’s biological father did not live with the child. When the baby’s mother was called up for military service, the employee applied for FMLA leave to care for the newborn, claiming that he stood “in loco parentis” (in the place of the parent) and that he was needed to care for the baby. Although the employer initially approved the FMLA leave, it terminated the employee before his 12-week leave was exhausted. Also, the mother of the baby never actually left for military service, but the employee continued to care for and provide for the newborn.

In response to the employee’s FMLA action, the employer argued that the employee did not stand in loco parentis, and the district court granted the employer’s motion for summary judgment. On the employee’s appeal, the Eleventh Circuit reversed, holding that because the employee provided substantial care and financial assistance to the newborn, the fact that the newborn’s mother was still in the employee’s home and provided care to the baby, did not change the fact that the employee was, for all practical purposes, acting as a parent of the newborn.

The Family and Medical Leave Act (FMLA) contains an anti-discrimination provision that prohibits employers from discriminating against employees “for opposing any practice made unlawful” under the FMLA. However, the text of the FMLA does not contain an express provision that prohibits retaliation against an employee simply for requesting or taking FMLA leave, and aggressive employers have tried to exploit this statutory gap by firing employees for requesting FMLA leave and then arguing that such retaliation is not prohibited under the FMLA.

This attempt was recently rejected by the Sixth Circuit Court of Appeals in Bryant v. Dollar General Corp. Although the Sixth Circuit does not have direct authority over the federal courts of Georgia, as the FMLA is a relatively new law and many of its details are still being fleshed out by the courts, it is important for Georgia employees to stay current with FMLA decisions in the other federal courts.

In Bryant, a female employee with diabetes filled out FMLA paperwork requesting a brief leave of absence. However, shortly thereafter, the employer launched disciplinary proceedings against her arising out of an alleged altercation that occurred about a month before the employee requested FMLA leave. The employee then took about a week of FMLA leave and was fired a few weeks later.

In the employee’s subsequent FMLA retaliation lawsuit, the employer argued that neither the text of the FMLA nor its regulations explicitly prohibit retaliation. According to the employer, the statutory language only prohibits discrimination against employees for opposing any practice that is unlawful under the FMLA, and the regulations only prohibit discrimination against employees who have used FMLA leave. The employer thus contended that there is no prohibition against FMLA retaliation.

Continue reading "Sixth Circuit Recognizes FMLA Retaliation Claim" »