FMLA Violations and Harassment Lead to Court for Employers

September 28, 2018 by

Individuals and families often have legitimate medical issues that lead to a request for time off of work. The federal Family and Medical Leave Act (FMLA) and the state’s California Family Rights Act (CFRA) lay out the responsibilities of employers (applicable to those with 50 or more employees) when it comes to family, medical, and/or parental leave. While the leave may be unpaid, it is job-protected time off. In the majority of situations, employees must be allowed to return to their previous position or an equivalent position as it relates to pay, benefits, working conditions, status, and fringe benefits. Crucially, employees are entitled to request and take leave without fear of retribution from employers.

FMLA – Employee Rights

Eligible employees are entitled to as much as 12 weeks of leave annually. This leave may be taken to deal with an array of issues, including:

  • Personal illness;
  • Caring for a family member who is ill;
  • Bonding with a newborn baby, a child who has been adopted, or a foster child;
  • A family member’s military service when associated with a qualifying exigency (FMLA provides 26 weeks to care for service members who have been injured).

Pregnancy Disability – FMLA

California’s CFRA laws apply to employers with five or more employees, and provide eligible employees as much as four months of pregnancy disability leave (PEL). This is in addition to FMLA bonding time.

When FMLA and CFRA Laws are Ignored

Failure to adhere to state and federal laws regarding leave is one of the most common reasons employees seek redress through civil lawsuits. In particular, retribution from irked employers gets them into trouble. Consider the case of Maria Salgado:

When Maria Salgado was called “psychotic” and “psycho” by a coworker, it understandably added to her stress at work. This was not helpful, especially since she suffered from anxiety and depression before the harassment began. Notably, the name-calling occurred shortly after Salgado informed her supervisor of her mental health status. Could the supervisor have breached ethical and legal boundaries by sharing this confidential information with Salgado’s co-worker?  If so, it would be the latest in a long list of harassment experienced by Salgado at the hands of her supervisor, including:

  • Objections for taking time off to deal with medical issues related to an injury, diabetes, and mental health problems;
  • Disciplinary action related to Salgado’s providing less than 24-hour notice prior to taking sick days or medical leave;
  • Confrontations and berating for expressing concerns in an open meeting hosted by the union to deal with medical leave issues;
  • Retaliating by insisting that Salgado be fired after three tardies totaling 13 minutes;
  • Failing to address co-worker harassment that occurred in the presence of the supervisor.

[Read more…]

Filed Under: Blog, Workplace Retaliation Tagged With: , ,

Is Missing Work to Care for A Grandparent Covered by the Family Medical Leave Act?

August 15, 2017 by

Family Medical Leave ActCan you use medical leave to take care of your grandmother? Imagine your grandmother has had hip replacement surgery, and is going to require extensive care for the next several weeks. You approach your boss for some time off and are denied. But what about the Family Medical Leave Act (FMLA), you challenge. Does it not provide time off to care for family members? If you find yourself in a confrontation with your employer over the provisions of FMLA, an employment law attorney may be able to assist.

Family Medical Leave Act (FMLA) Provisions

FMLA provides that eligible employees are allowed to take up to 12 weeks of unpaid, job-protected time off with continued group health insurance coverage in certain circumstances.  The part of the law relevant to this situation is pretty explicit: An employee may take the time off of work to care for a spouse, child or parent with a serious health issue. Grandparents are not mentioned. It looks pretty cut-and-dried. Or is it?

Family Medical Leave Act and Parental Relationships

In fact, the FMLA does have some wiggle room when it comes to defining family relationships.   The law actually provides consideration to those who are able to demonstrate a factual, or in loco parentis relationship. This refers to anyone who has essentially served in a parenting role toward the employee. Now, the law does not specify exactly how that parenting role presents, but some factors might include:

  • Providing food, shelter, and clothing;
  • Addressing medical needs and having health insurance;
  • Providing transportation to and from school.

If an employee can establish that his of her grandparent raised him or her, or, at a minimum, met the above criteria, he or she may have a case for in loco parentis status. If, indeed, the grandparent discharged obligations as in a parent-child relationship when the employee was a minor child, FMLA may cover time off of work now for the employee to care for his or her grandparent.

Of note, the in loco parentis interpretation goes even further. The individual who took on the parenting role does not even have to have a legal or biological relationship to the employee.  Simply showing that that person provided financial support and performed duties typically associated with a parent is generally enough.

Employer Rights

Employers are entitled to documentation of any claims of in loco parentis relationships, of course, just as they may seek documentation showing the need for FMLA in other allowed circumstances. That documentation, however, can simply be the employee’s assertion of the relationship with minimal details. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: , , ,

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