FMLA News
Employer Knowledge is Key to Avoiding FMLA Lawsuits
Sacramento, CA: It’s hard to fathom that the number of lawsuits over denied family and medical leave were found to be increasing last year, even though statutes such as the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) have been around for years.
However, that was the finding from a study conducted by the Center for Worklife Law at the University of California’s Hastings Law School in 2016.
Paid Family Leave (PFL) in California is another statue that augments existing leave provisions both federally (FMLA) and at the State level (CFRA). To that end, paid family leave has been around for no fewer than 14 years and known in the Golden State even longer, ever since the California State legislature first created paid family leave and gave administrative authority to the California Employment Development Department.
Thus, any employer denying a legitimate claim for paid family leave in California who pleads ignorance to the statutes, doesn’t have a legal leg to stand on.
What’s more, possessing intimate knowledge of both FMLA and CFRA does not necessarily dictate, or drive PFL. For example, FMLA and CFRA generally require employers with 50 or more employees to provide eligible workers unpaid time off to attend their own medical needs, or those of certain family members.
In contrast, the paid family leave program applies to all California employers, regardless of the size of their workforce.
Employers need to do their homework
Numerous industry watchers have opined that when a number of laws and statutes co-exist with one another – as is the case with FMLA, CFRA, the California Pregnancy Disability Leave Act (CPDL), and PFL – keeping track of all the various associations and overlaps takes some diligence. That said, the weight is on the employer to ensure human resource departments are up to speed on all the various nuances, lest the employer inadvertently cause a hardship to the employee that could result in a FMLA lawsuit.
For example, FMLA and CFRA guarantee reinstatement of their job to employees except when limited exceptions apply. Unlike the FMLA and CFRA however, there is no automatic reinstatement provision in the language governing paid family leave in California. The PFL exists as a funding program only: job protection, on the other hand, extends to CFRA or FMLA. Thus, an employer contemplating a reinstatement request and assuming he, or she does not owe the returning employee their job back, could be misinformed.
That’s because the PFL program does not eliminate the reinstatement requirements mandated by the FMLA, CFRA or CPDL. Even though the PFL, through which the employee has received paid leave benefits, does not guarantee job reinstatement – other laws under which the employee may be protected, does. In this way a misinformed employer could open themselves up for an FMLA lawsuit, or similar litigation under CFRA.
There are resources available
The State of California Employment Development Department maintains a website that is accessible to both employers and employees for guidance in either making claims, or in the case of the employer, facilitating claims.
Meanwhile, a blog appearing last year in the Huffington Post (06/14/16) raised the specter of the potential for discrimination on the part of the employer against an employee for simply being pregnant, wishing to take time to bond with an infant, or to care for an elderly family member. For those employees who allege discrimination or have been made to suffer by way of an unfair denial of legitimate family leave – paid or otherwise – an FMLA lawsuit or equivalent is often an appropriate response. And according to the Center for Worklife Law at the Hastings Law School, University of California, the aggregate success rate in FMLA litigation is higher than 50 percent.
FMLA Lawsuits Can be Prevented
Sacramento, CA: It’s a sad commentary on the preparedness of employers that there are so many instances of litigation surrounding the federal Family and Medical Leave Act (FMLA), and the state-centric California Family Rights Act (CFRA) given the wealth and breadth of knowledge available. An employer well-versed and conversant on the Acts, and the respective relationships between the two, can easily prevent an FMLA lawsuit from occurring. What’s more, the latest information is readily available to Human Resources Departments (HR) as well as the public at large.
In the Wake of Natural Disasters, Employers Urged to Have Empathy
Sacramento, CA: The devastation to Texas, and in particular Houston in the wake of Hurricane Harvey together with the death and destruction wrought by Hurricane Irma serves as a reminder to all employers that hardship which follows such a disaster can trigger a request for leave under the Family and Medical Leave Act (FMLA). And while California is not generally exposed to the ferocity of hurricanes, other disasters such as droughts and wildfires can lead to crises and hardship equally horrific.
With the one-two punch of Harvey and Irma still fresh, advocates are reminding employers of their responsibility, together with the need for compassion when an employee requests time off to deal with a very real crisis. While employers are not obligated to allow an employee time off to deal with, say, a flooded basement – at the same time there is an obligation to take seriously most requests for time off in the wake of a major disaster, such as a hurricane, serious flooding or wildfires.
To that end, many employees may have family members, such as elderly parents, who may require their assistance when disaster strikes. In fact, experts conversant with the federal FMLA suggest that requests for FMLA leave are quite common following a natural disaster.
The Family and Medical Leave Act provides, for most private and federal employees, as much as 12 weeks of leave. The California Family Rights Act, or CFRA, mirrors the federal FMLA in most respects, the major difference being that CFRA provides paid leave, whereas the FMLA does not.
In the wake of a natural disaster, employees may seek to book time off to care for their own, or close family members. Medical issues can arise in the wake of a serious disaster, especially for the elderly. Mental health issues triggered from the sudden loss of one’s home, for example, can affect everyone – even children. Emotional trauma in the aftermath of a serious disaster, including heightened stress associated with cleanup and rehabilitation of one’s home, would qualify an employee for FMLA or CFRA leave if he, or she are “unable to perform the essential functions” of their jobs.
What’s more, elderly parents dealing with an extended period of lost power in the wake of a disaster could be a situation where an employee qualifies for FMLA leave in order to assist the elderly family members. There may be ongoing medical conditions, treatment for which may require a constant source of power. Are they eating spoiled food because the fridge is off? Are they dehydrated, or overheated because there is no electricity to power the AC?
There will be those employees who will try to take advantage of a serious situation and apply for FMLA leave where it’s not warranted, but those situations in the wake of a disaster as serious as Harvey or Irma will be in the minority. Overall, the takeaway message according to FMLA experts is to treat every request seriously, and maintain empathy for employees requesting leave.
An employer, who treats an otherwise legitimate request for FMLA leave within the context of a serious disaster, could face an FMLA lawsuit going forward if legitimate leave is denied – or if the process of securing FMLA or CFRA leave proves adversarial and adds to the stress an employee is already under.
It’s also important for employers to remember that should an employer have to close shop for a period of time in the wake of a serious natural disaster, employees should not be charged FMLA leave during that time.
It’s been 41 years since a hurricane had any major effect on the state. On September 10 and 11, 1976 Hurricane Kathleen crossed the Baja and moved into California as a tropical storm, with southeastern California sustaining major damage from rainfall and flooding. Three people died.
In more recent years, serious droughts have fostered wildfires, which are a more common threat than hurricanes in the Pacific region. Whatever the persona of a natural disaster, Californians can suffer serious adverse effects. The sage counsel now being extended to employers in Houston, Texas and throughout southwest Florida right now is to manage FMLA requests with empathy.
FMLA and CFRA is a Complex Relationship Requiring Expert Advice
Sacramento, CA: Few would argue that while the federally-regulated Family Medical Leave Act (FMLA) and its State counterpart The California Family Rights Act (CFRA) go to great lengths in guaranteeing certain rights and protections for workers who are themselves ill or have responsibility for a sick or injured family member, the interaction of the two can be complex. And while pundits observe that claims and lawsuits within the FMLA and CFRA are increasing, so too are the cautions that such regulations are complex and require the expert services of a qualified attorney to wade through the quagmire.
The take away message – especially in California – is that the employee cannot blindly rely on the Human Resources Department to have a good handle on the FMLA and CFRA regulatory landscape. It remains the primary bastion of the California employee to pursue his, or her due diligence to be reasonably conversant with the basic tenets of both Acts in order to optimally manage a situation as it unfolds, and / or to have the proper documentation in place should a violation occur.
It is important to keep in mind that FMLA and CFRA protections go beyond guaranteeing time off (for those who qualify) in order to care for a sick child, or aging parent. Such protections also guarantee the qualifying employee time off to battle an illness, or recover from a serious health issue.
An example of this is a lawsuit brought in the State of New Jersey against Blue Apron Inc., a meal and ingredient service. A former employee of the firm, identified as Tapshea Bowman, worked as a kitchen associate beginning in November, 2015. According to Bowman’s FMLA lawsuit, she was diagnosed with an E. Coli infection in February of this year and immediately forwarded a text to an employee hotline maintained by Blue Apron for matters involving employees. Bowman claims in her lawsuit that it was a “common practice for employees” to send notice of absenteeism from work via text message.
Upon returning to work, the plaintiff continued to experience extreme symptoms and determined it would not be wise to report to work for two additional days, February 19 and 20. Bowman asserted she sent a text message to the Blue Apron employee hotline, returning to work on February 21.
A week later, on the first of March Bowman was summoned to her supervisor’s office, where she was summarily fired for not reporting for work. When asked to confirm the dates during which Bowman was cited for not reporting to work, it is alleged neither the supervisor or the team lead were able to do so, or so it is alleged. Familiar with her rights under FMLA, Bowman attempted to explain why her absences qualified under FMLA – but she was allegedly not permitted to do so.
“As a direct and proximate result of Defendant’s unlawful interference with Plaintiff’s rights under the FMLA, Plaintiff has been deprived of economic and non-economic benefits including, but not limited to lost wages, pain and suffering, mental anguish, humiliation, loss of fringe benefits, disruption of her personal life and loss of enjoyment of the ordinary pleasures of life,” the lawsuit states.
Federally, the FMLA provides a comprehensive basket of protections for needed absences from work for those who qualify (for example, employees working for a company employing the minimum number of staff or greater, must be an employee for a minimum period of time to qualify, and cannot be in the top 10 percent pay grid). Most employees, with a bit of study can become conversant with these rights. FMLA attorneys note that a potential plaintiff’s case and corresponding potential for success can increase provided the employee makes copious notes of all claims and disputes, and documents everything. It’s also important, legal experts opine, to not necessarily wait until you are terminated if an issue surfaces while an employee is still gainfully employed.
Of course, that’s looking at the Family and Medical Leave Act in isolation. In California, the CFRA works in concert with the FMLA. One doesn’t supersede the other, but rather both Acts are valid at the same time in an intricate compliance structure best sorted out by qualified experts. The primary difference with the CFRA is that qualifying employees are paid for their leave (as opposed to FMLA leave, which is unpaid).
Be that as it may, there remains a complex template in the State that allows the Family and Medical Leave Act, and the California Family Rights Act to co-exist – so much so that it’s often beyond the scope and capability of the Human Resources Department of a small firm to be fully conversant.
The Bowman lawsuit in New Jersey is Tapshea Bowman v. Blue Apron Inc., Case No. 2:17-cv-05357-MCA-LDW, filed July 21 2017 as a civil matter in The US District Court for the District of New Jersey.
Know Your Rights under the California Family Rights Act
Berkley, CA: Tom Spiggle is an attorney and author of You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace. In a blog originally appearing last year and updated last month in Huff Post (06/15/17), Spiggle notes that various protections at both the federal and state level that help insulate workers from discrimination (such as the federal Family Medical Leave Act and the California Family Rights Act) are valuable tools for the protection of worker rights. At the same time, however such a patchwork of protections crossing various jurisdictions can inject a high level of complexity into the mix.
While Spiggle notes that the aggregate ‘win’ rate for lawsuits brought for alleged discrimination under FMLA and CFRA, for example is more than 50 percent (v. about 10 percent for non-FMLA employment discrimination cases), it’s also important to have legal counsel who understands and is well conversant with the various intricacies to which Spiggle refers as a patchwork of protections at the federal, state and even municipal level, according to the jurisdiction involved.
The takeaway here is that protections are many, and varied. For example, the federal FMLA that provides employees with non-discriminatory time away from their jobs for maternity leave, paternity leave, or to care for an injured or sick relative is augmented by the CFRA in California that works in concert with the federal statute. Spiggle makes the point, however that the patchwork of various protections working in concert with one another can make for a tricky area of law.
In other words, don’t take suspected, perceived or obvious discrimination or unfair treatment under FMLA and / or CFRA sitting down. The plaintiff has a very good shot at winning compensation against an unfair employer – but it’s important to have a good FMLA and CFRA attorney who knows the lay of the land and the road ahead.
It’s also important for the would-be plaintiff who may have a case for an FMLA lawsuit to think proactively, and have all their ducks in a row.
For example, Spiggle notes that litigation is an obvious response if the employee is fired unfairly. However, there are various statutes that protect an employee while still on the job about which the employee should be aware. For example, a new mother who is breastfeeding may require accommodations for breastfeeding on the job – or a woman suffering from postpartum depression may need (and is deserving of) accommodations at work that would allow the employee to recover effectively while remaining an effective employee. Such rights and protections are available under the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Fair Labor Standards Act.
However, Spiggle makes the point that most employers aren’t conversant with such provisions, and thus the onus is on the employee to speak up and make formal requests, as is their right, for accommodations to the Human Resources department, or a supervisor.
Spiggle also makes the point that a basket of statutes “make it unlawful for an employer to take action against you if [you] report discrimination to your boss,” he writes. “But like the laws on reasonable accommodation, anti-retaliation laws only apply if you directly raise the issue of discrimination while you are still at work.”
He uses the example of a valued employee who is a ‘shoo-in’ for a promotion until the employee announces she is pregnant, only to see the promotion go to a more junior male employee. Were the now-pregnant employee to remain silent about her disappointment at the lost promotion only to face job termination later, she would have a claim for wrongful dismissal. However, had she formally complained to her supervisor about the lost promotion while still employed, she would have a second level of retaliation that Spiggle says is easier to prove and provides to the affected employee more leverage.
Spiggle notes there are other areas about which women have seen problems in the work place. The Center for Worklife Law at the Hastings College of the Law based at the University of California, has documented various patterns – two of which are women who experienced no workplace difficulty with their first pregnancy but suddenly faced discrimination with their second – and, discrimination at the hands of new management who swoop in and make everyone’s life difficult. An employee with an otherwise stellar employment record, who suddenly faces discrimination by a new supervisor, is a pattern noted by The Center for Worklife Law.
At the end of the day, the prevailing advice is for the employee to know their rights under the Family and Medical Leave Act, the California Family Rights Act, and the Fair Labor Standards Act (together with other available statutes and protections) and respond accordingly to any real or perceived threat of discrimination.
When it comes time to file an FMLA lawsuit, be sure to source an attorney and a firm well-conversant with FMLA and CFRA laws.
An Informed Employer Can Often Avoid an FMLA Lawsuit
Sacramento, CA: Employers based in California and who employ 50 or more workers face an extended basket of regulations through the California Family Rights Act (CFRA), which augments the federal Family and Medical Leave Act (FMLA). Thus, anyone filing an FMLA lawsuit in the state of California benefits from extended protections through the CFRA. And yet, notes the California Chamber of Commerce (CalChamber), there are, in some cases overlapping and conflicting tenets resulting from the conjoined Acts.
And then there is retail juggernaut Walmart, which has a footprint in every state of the Union including California, but appears to be having enough troubling adhering to the federal FMLA, without bringing the CFRA into the mix for its Golden State retail locations.
To that end, Walmart is facing a formal complaint from A Better Balance, the advocacy group that has accused Walmart of various violations against the Americans with Disabilities Act, FMLA as well as state and local laws with regard to a points system employed by Walmart to track the attendance records of its workers.
According to documents, Walmart assigns a point system to various infractions a worker might commit – anything from abusive language or insubordination towards a supervisor, to late arrival for work, or poor attendance overall. The report by A Better Balance infers that once an employee has accumulated a certain number of points, that employee is fired.
However, A Better Balance has taken Walmart to task for alleged infractions including, but not limited to the assignment of a ‘point’ to an individual having suffered a heart attack while on the job (and rushed to hospital), refusing to allow an employee time off work to care for a terminally-ill parent, and otherwise pressuring workers to come in for their assigned shifts in spite of their own illness, or that of a loved one.
This past November, the advocacy group filed a formal complaint with the US Equal Employment Opportunity Commission. Walmart has employees in California covered both by the FMLA as well as CFRA.
Advocates note that a common mistake amongst employers in any state is differentiating between a serious illness, and that which is non-serious in nature.
However, notes CalChamber, with two statutes to keep track of in the Golden State – the federal FMLA and California’s own CFRA, there is a bit more to worry about.
Generally, under FMLA and for those employees who qualify, 12 weeks of unpaid medical and family leave are available to workers, with 26 weeks available to care for an ill or injured service personnel.
The CFRA also grants 12 weeks medical and family leave – for an extended illness, to care for an ill family member, or to bond with and help care for a newborn for example – but with remuneration to a certain percentage of an employee’s wage. Unlike FMLA, CFRA is paid leave for those who qualify.
An employee can take family and medical leave under several different circumstances. FMLA and CFRA contain similar provisions and generally run concurrently. However, there are some situations where the leave will be FMLA only or CFRA only, notes CalChamber.
For example, there is no provision in CFRA for caring for service personal battling illness.
And yet, with so much allowance for leave under FMLA and CFRA in the state of California, not to mention rights and protections to ensure there is no retaliation against an employee exercising his or her rights, why would an employee need to pursue an FMLA lawsuit or similar action citing violations of the CFRA?
Most advocates agree it’s due to a lack of understanding of FMLA and CFRA laws on the part of the employer and – at least in California anyway – how those two Acts intersect.
CalChamber is but one example of available guidance that can help employers avoid needless litigation, sparing an employee already under duress the added frustration of taking an employer to court for refusing the right, and the leave that is the employee’s due.
That said, an employer can’t blame an employee for simply attempting to exercise rights and freedoms – and leave (paid in California) – entrenched and guaranteed under state and federal laws.
Former Television Executive Files Lawsuit, Alleges FMLA Violations et al
Los Angeles, CA: A former executive with Black Entertainment Television (BET) in Los Angeles has filed an 18-count wrongful dismissal lawsuit against BET and parent company Viacom Inc. Amongst the allegations are charges of discrimination, gender bias and violations against the Family and Medical Leave Act.
The FMLA is a broad federal statute that combines with the California Family Rights Act (CFRA) to provide rights and protections for qualifying employees in the event of a health crisis, family illness or related emergency. Amongst the provisions is childbirth, the need to take time off to care for a sick, elderly or incapacitated family member, or a health crisis directly affecting the employee. FMLA and CFRA provide up to 12 work weeks of job-protected leave with benefits, and without retaliation for those employees who qualify.
Zola Mashariki alleges in her FMLA lawsuit that she qualified for leave during treatment for breast cancer – but was ousted from her position with the network without just cause, or so it is alleged.
According to court documents Mashariki was hired to head up the original programming division for BET following a long tenure with Fox Searchlight Pictures. Her move to BET was fueled in part by the BET brand, which spoke to the plaintiff as a woman of color, and the BET programming platform upon which Mashariki could further strengthen a visual representation of African Americans on the media landscape.
However, once on board at BET Mashariki alleges she found a hostile work environment towards women. The Harvard graduate who also earned a degree from Dartmouth College alleges the existence of a boys’ club at BET and Viacom that resulted in the routine deprivation of opportunities for job and career advancement, together with intimidation and exploitation.
In particular, according to her FMLA lawsuit, Mashariki singles out the former President of Programming for BET, Stephen Hill – whom Mashariki specifically names in her lawsuit. Mashariki alleges Hill was combative, treated the plaintiff in a demeaning fashion and took credit for her ideas, amongst other allegations.
When she complained to senior executives about the alleged demeanor and behavior on the part of the individual to whom she directly reported, Mashariki alleges BET and Viacom began to retaliate against her through various avenues, including but not limited to denying the plaintiff additional staff support, and opening an investigation into her management style with the human resources department.
In November, 2016 – a month before her diagnosis of breast cancer – Mashariki lodged a formal complaint with Viacom with regard to discrimination and retaliation. According to court documents, Viacom responded by withholding bonus pay and intensifying surveillance into her work, in addition to other alleged forms of retaliation.
In December, Mashariki was given a diagnosis of early-stage breast cancer, and went on medical leave for treatment in February of this year. Under FMLA, qualifying employees are guaranteed up 12 weeks of leave with benefits within a rolling 12-month window, without retaliation or discrimination. The CFRA in California carries similar rights and freedoms. Mashariki’s diagnosis of breast cancer, and the need for treatment would have qualified her under FMLA.
The plaintiff’s situation worsened while on leave, when Mashariki was diagnosed with a more advanced form of breast cancer. The subsequent diagnosis required more advanced treatment, and an extension of her leave from BET.
According to Mashariki’s 18-count FMLA lawsuit, various parties within BET worsened her situation while she was on medical leave by denying the plaintiff access to her emails and internal systems, together with the spreading of false rumors, or so it is alleged. Mashariki’s lawsuit alleges that BET and Viacom attempted to terminate her employment on February 28. After Mashariki challenged that decision to terminate, the defendants withdrew.
However, court records show she was fired April 11 of this year, not long after Stephen Hill left the employ of BET. Hill’s departure was announced March 29. At the same time, BET and Viacom announced that Mashariki, too would be leaving their employ – an announcement Mashariki had not approved, consented to or had prior knowledge of. The public announcement, the plaintiff alleges, created a firestorm in the media that resulted in a stream of speculation and innuendo that included, but was not limited to rumors of poor performance – accusations to which Mashariki could not respond due to her absence through employer-approved FMLA and CFRA medical leave, her ongoing treatment, and recovery from recent surgery.
Mashariki, in her 18-count lawsuit alleged she was terminated for lodging complaints about the work environment and discrimination, and her need to take medical leave, which Mashariki alleges is a violation of the Family and Medical Leave Act.
Viacom and BET maintain the allegations are unfounded. The case is Zola Mashariki v. Viacom Inc. et al., Case No. 2:17-cv-03366, in the US District Court for the Central District of California.
Latest Revision to California Family Rights Act Goes to Committee April 24
Sacramento, CA: We are just beyond the one-year anniversary of an expansion to the California Family Rights Act, or CFRA, that was first brought in 16 years ago.
The most recent expansion to the CFRA, signed into law by California Governor Jerry Brown last April and taking effect in 2018, will allow people earning close to minimum wage to be paid 70 percent of their salary while on leave, while workers with higher pay, up to $108,000 annually, will get 60 percent of their salary during leave.
However, that expansion wasn’t enough to prevent a push to further enhance the state’s Family and Medical Leave Act by requiring a company of 10 or more workers to allow eligible employees up to 12 weeks of job-protected parental leave to bond with a new child. Current law excludes many small businesses from family leave requirements beyond women recovering from childbirth. Parental leave, as of today in California, is extended to companies with 50 or more employees.
According to the Los Angeles Times (09/01/16) the original effort was quashed last June. Two months later, in August of last year, the effort was revived as part of Senate Bill 654 – only to be vetoed a month later by Governor Jerry Brown, citing concerns such a provision would have on small business.
Brown had issues with a threshold of 10. Thus, the effort has been revived once again with numbers adjusted to a threshold of 29 to 49 employees – leaving the original provision of 50 employees or more intact, but adding in a new provision that would encompass businesses with 20 to 49 employees.
Senate Bill 63 is at the Committee stage and is scheduled to be debated in Committee Monday, April 24 in the state legislature.
The Family Medical Leave Act (FMLA) is actually a federal statute that provides basic rights for employees. Individual states will often augment those tenets with their own legislation, as has California with the California Family Rights Act (CFRA).
Meanwhile, a former employee of General Dynamics C4 Systems Inc. (General Dynamics) has lost an appeal of her FMLA lawsuit on a claim under the Family Medical Leave Act following allegations that her former employer violated FMLA tenets by failing to adjust her performance expectations and bring them in line with reduced hours of work.
According to court records plaintiff Loretta Cheeks had enjoyed a string of positive performance reviews across a decade with General Dynamics, which is based in Tucson. Her troubles began when she applied for – and was duly granted – reduced work hours for a year under the FMLA. All was well until a key program began to fall behind schedule, at which time Cheeks’ superiors asked her to work additional hours beyond the 32 hour week she had been granted under FMLA, or so Cheeks claimed.
Cheeks was eventually dismissed, and asserts in her FMLA lawsuit that her dismissal violated the agreement she had under the Family Leave Medical Act. General Dynamics countered that the plaintiff was assigned work that should not have taken more than 32 hours in a week to complete.
The plaintiff countered that an employee granted a reduced schedule under the Family and Medical Leave Act should not be expected to complete duties assigned to someone in a full-time position – and during her original trial in 2014 requested that the trial jury be allowed to hear that assertion.
Cheeks lost her case in 2014 when a district court granted summary judgment to General Dynamics based on an assertion that Cheeks had breached a confidentiality agreement through a failure to return certain documents.
The plaintiff appealed to the Ninth Circuit, which upheld the lower court’s ruling.
“The district court did not err in rejecting Cheeks’ proposed instructions because the instructions that it gave adequately covered Cheeks’ theory of the case,” the unsigned memorandum said. “Indeed, nothing prevented Cheeks from arguing to the jury that General Dynamics interfered with her FMLA rights by firing her for failing to meet the performance standards of a full-time employee who did not take FMLA leave.”
The case is Loretta H. Cheeks v. General Dynamics C4 Systems Inc. et al., Case No. 15-15658, in the US Court of Appeals for the Ninth Circuit.
Federal FMLA Bill Tries for a Second Time, Mirrors California FMLA
Los Angeles, CA: Federal legislation that hopes to mirror rights for family and medical leave currently observed by California and one other state, has been proposed by Democratic lawmakers in the Congress. The Family and Medical Leave Act was introduced previously, but was not successful in passing through Congress and thus never made it to the desk of then-President Barak Obama in 2013, when the Bill was first proposed. This time, Representative Rosa DeLauro (D-Conn.), and 113 co-sponsors reintroduced the House Bill, while Senator Kirsten Gillibrand (D-N.Y.) reintroduced its companion legislation in the US Senate.
The proposed law would allow for workers to take up to 12 weeks of paid leave for a pregnancy, for the birth or adoption of a child, to recover from a serious illness, or to care for a seriously ill family member.
The federal Family and Medical Leave Act, as it currently stands, allows qualified workers to take time off as required for medical issues. However, federal FMLA leave is unpaid. The hope is that the new, updated version of the FMLA, if passed, would align the federal program with similar programs in New Jersey and California. Specifically, the Family and Medical Leave Act in the state of California – together with the California Family Rights Act (CFRA) – provide a portion of an employee’s monthly salary up to a certain cap.
There are also proposed changes that would abolish certain restrictions, such as the minimum of 12 months of tenure with an employer, for whom an employee would have worked 1,250 hours or more in the previous year in order to qualify for CFRA and FMLA benefits.
Meanwhile, a plaintiff fighting a FMLA lawsuit in California alleges her employer breached the Family and Medical Leave Act as well as the California Family Rights Act, when the defendant allegedly failed to extend accommodations with regard to workload following a surgical procedure.
According to court documents Plaintiff Marthina Taylor was employed by Northern Inyo Hospital as a baker. Court heard that Taylor took medical leave from her position in May, 2014 for her surgery. Upon her return to the job site in September of that year, Taylor requested that her workload be lightened during her convalescence, but asserts no changes were made, in spite of her rights under CFRA.
The plaintiff again consulted with her physician on October 22 of that year after she re-injured herself while on the job. Court documents suggest the plaintiff was again cleared to work by her physician with specific restrictions, including a 10-pound weight limit and a requirement to rest every 45 minutes.
The CFRA plaintiff asserts she met with her direct superior together with the COO of the hospital a week later “to discuss her restrictions and what could be changed to accommodate her restrictions,” Court documents stated.
The plaintiff asserts that at 10:30 in the morning on her first day back, she informed her supervisors “that the changes implemented were set up to fail and were not do-able in the time allotment provided,” and “asked if other employees could help/assist in completing some of these job duties, so [Plaintiff] could concentrate on all of her baking duties.”
Taylor contends that the hospital COO informed her that he “would have to confer with higher up management to make this call.” Ten minutes later, according to court documents, Plaintiff “was told that Northern Inyo Hospital could not make accommodations to meet [her] restrictions.”
The plaintiff also alleges pre-existing issues with her immediate supervisor prior to her surgical procedure, which may have served to complicate their working relationship going forward.
The case is Marthina Taylor v. Northern Inyo Hospital, et al., Case No. 1:2015-cv-001607 – LJO – JLT, in the US District Court for the Eastern District of California.
California Could Expand Parental Leave
Sacramento, CA: California is looking to expand parental leave laws to require smaller businesses to provide parental leave to employees. If approved, the law would require employers with 20 to 49 employees to provide parental leave to employees. Current law only requires companies with 50 or more employees to provide parental leave.
The proposed Senate Bill—S.B. 63—was introduced to the California legislature on December 22, 2016 by Senator Hannah-Beth Jackson. It is similar to a bill that Governor Jerry Brown vetoed in September 2016, but Senator Jackson has said she will continue to push for it. When Brown vetoed Senate Bill 654, he cited concerns about the impact of the bill on small businesses.
Under S.B. 63, mothers and fathers would be given 12 weeks of unpaid job-protected leave to bond with their babies during the first year of the child's birth, adoption or foster placement. The vetoed bill had only offered six weeks of such leave. This leave would be available to employees of companies with 20 or more workers within a 75-mile radius of the worksite.
"Any new parent knows that the birth of a new baby comes with a host of changes and challenges," Jackson said. "But losing a job should never be among those challenges."
Jackson also introduced Senate Bill 62, which would expand the included family members employees could take leave to care for to include grandparents and grandchildren, siblings, parents-in-law, or adult children.
"Too many hardworking Californians cannot take time off from work in times of need—whether to care for a new child or a seriously ill family member—without risking their jobs," said Julia Parish, a sponsor of the bills. "Senator Jackson's bills ensure that California leads the way for working families so that they can keep their jobs during these critical times."
In a news release announcing the proposed bills, Senator Jackson's office noted that 37 percent of California employees who knew about California's Paid Family Leave Benefits and needed that leave did not apply because they feared they would face consequences at work for doing so.
Under the Family and Medical Leave Act, employees who are covered by the Act can take their protected leave without fear of retaliation from their employer. In cases where employers fire protected employees or give them other negative consequences for taking their leave, employees can file a lawsuit against the employer.
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