FMLA News
Court Allows FMLA Retaliation Suit To Proceed
Anaheim, CA: When it comes to defending Family and Medical Leave Act rights, regardless of whether the employee is in California or Ohio, there are certain rules an employer cannot break. Federal FMLA laws apply across the US, while state laws, such as California FMLA, apply only to the individual states. Despite the existence of state FMLA laws, though, there are regulations that employers in every state must follow. Among them is the rule concerning retaliating against employees.
The federal FMLA prohibits covered employers from discriminating or retaliating against employees who exercise their right to FMLA benefits. This means an employer cannot fire, layoff, demote, or otherwise consequence an employee for requesting FMLA benefits or asserting FMLA rights. Employers are also prohibited from interfering with or denying an employee from exercising any FMLA benefits he or she is entitled to.
Employers might think they can get away with retaliating against employees by making it appear they have consequenced the employee for something else—such as poor work conduct. But if there is no history of poor work evaluations and an employee has just attempted to exercise his or her FMLA benefits, the courts might not regard such employer behavior too kindly.
A recent lawsuit highlights the court's view of retaliation. Although the case occurred in Ohio, the rules against retaliation are federal so employees in California who are subject to similar retaliation can take note.
The lawsuit is Lightner v. CB&I (case number 14-cv-2087), S.D. Ohio. Plaintiff Evan Lightner worked for CB&I as a site superintendent from 2009 and consistently received glowing reviews of his work. In the summer of 2013, Lightner raised safety concerns about situations he observed at CB&I. His concerns were allegedly dismissed, but according to court documents in 2014, Lightner needed time off to recover from a lumpectomy. The day after a discussion with his supervisor about the time off, Lightner was allegedly called and told that the project he was supposed to work on had not been awarded and, as a result, Lightner was being "furloughed."
Lightner filed a lawsuit alleging he was furloughed in retaliation for asserting his FMLA benefits and further alleging that despite the contract not being awarded, he was the only worker who was furloughed. The defendant filed a motion for summary dismissal of the suit.
The court found that Lightner's claim of interference could be dismissed because the company could not have interfered with his FMLA claim as it furloughed him before it could deny him leave. But the court did allow the retaliation claim to continue. In allowing the claim to continue, the court noted that CB&I had no documentation supporting the need to eliminate Lightner's position, there was only one person eliminated in the workforce reduction, and a similar job position was posted by the company.
As the court noted, to succeed in a retaliation claim, the plaintiff must show that he or she notified the employer of an intent to take leave, suffered an adverse employment action, and the adverse action was directly caused by the exercise of his or her rights. Judge Algenon L. Marbley found that Lightner met the requirements, and allowed the retaliation claim to continue.
FMLA Lawsuits on the Rise
Washington, DC: A new report from Bloomberg BNA (10/24/16) suggests the number of Family and Medical Leave Act lawsuits is on the rise. In California, FMLA lawsuits have been filed against employers, alleging violations of employee rights to family and medical leave.
Disappointing Outcome for California FMLA Plaintiff
San Bernardino, CA: In somewhat of a curious outcome to a California FMLA and harassment lawsuit, a jury has found in favor of the City of Redlands in a lawsuit brought by a former employee who alleged discrimination and harassment by the City and a City employee.
A report published in the San Bernardino Sun (09/23/16), outlined the crux of plaintiff Christine Smith’s lawsuit. Smith, a former employee in the Quality of Life Department with the City, had taken leave from her job for circumstances supported by the Family Medical Leave Act. The specific circumstances were not outlined in the published report. However, there appeared to be no dispute with her qualifications for taking leave under FMLA.
It’s what happened when she returned from her absence in October, 2012 that formed the primary basis of her lawsuit. In her litigation, Smith alleged that her supervisor, identified as Quality of Life Department Director Fred Cardenas, demoted Smith from her position as fleet services administrative coordinator upon her first day back from her FMLA leave of absence. Smith also alleged in her lawsuit that she felt bullied, intimidated and isolated to the point where she felt the need to take stress leave on two occasions, in November 2012 and again in June, 2013.
She launched her lawsuit in September, 2013 seeking compensation for pain, suffering and lost wages.
Things began to appear they would be going south for the plaintiff when, in August, the judge in the case granted a motion by the defendant to dismiss the plaintiff’s claims of harassment and discrimination related to disability, failure by the city to accommodate her disability and constructive termination.
Then, earlier this month the jury returned a verdict favoring the defendant, finding the City of Redlands did not retaliate against the plaintiff for taking leave under the Family and Medical Leave Act. The jury also determined that the City of Redlands, in deference to the plaintiff’s allegations, did not fail to prevent the harassment alleged in the case, did not discriminate or retaliate, and did not terminate Smith from her job wrongfully.
The day prior, in a separate verdict, the jury found that the City of Redlands did not interfere with Smith’s rights under the Family Medical Leave Act.
In conducting a post mortem on the case, Smith’s FMLA attorneys noted that the plaintiff’s entire case hinged on the FMLA claims. An attorney, who spoke to jurors following the outcome of the proceedings, noted that jurors understood that “a lot of things happened to Christine that shouldn’t have.” The attorney also noted that they understood and believed that Fred Cardenas, the supervisor, “was a bad actor. What they did not believe was it was because she took FMLA leave and our entire case flowed from that.”
The California FMLA lawsuit is Christine Smith v. City of Redlands et al., Case No. CIVDS 1311312, San Bernardino Superior Court.
Family Responsibilities Leading to More Employee Lawsuits
Los Angeles, CA: A new study conducted by the Center for WorkLife Law at the University of California Hastings College of the Law suggests that discrimination against workers who take time to care for family members has resulted in more employee lawsuits being filed against employers. Those lawsuits allege violations of a number of laws, including the Family and Medical Leave Act (FMLA) and other state and federal laws. Perhaps surprisingly, men make up 38 percent of all FMLA cases reported, indicating they, too, are victims of discrimination when they take time off to care for family members.
The report, titled “Caregivers in the Workplace,” covers all types of family responsibilities discrimination - both those that involve violations of FMLA and those that violate state or other federal law. The author found that the number of family responsibilities discrimination cases increased 269 percent in the past 10 years, with cases involving care of an elderly person - usually filed under FMLA and state laws - jumping 650 percent.
“The essential conclusion of this report is that employers have not implemented effective policies and practices for managing employees who have family caregiving obligations,” Cynthia Thomas Calvert, author of the report, wrote.
Some lawsuits are being settled or have resulted in awards for the plaintiffs. The report cites a California lawsuit in which a phlebotomist who returned to work after leaving to care for an ill daughter received unwarranted discipline and negative performance reviews. The plaintiff was awarded more than $287,000 in 2014. In a different case, a production supervisor was fired after she told her employer she needed FMLA leave to care for her husband. The plaintiff in that case was awarded almost $500,000 in 2011.
FMLA lawsuits are filed by employees in a range of careers who face a variety of situations, including caring for children, taking maternity/paternity leave, caring for spouses or caring for elderly parents. The report cites the case of a surgical nurse who was approved for intermittent FMLA leave for two years to care for her mother, but was then disciplined for absenteeism even when it was covered by FMLA. The nurse was ultimately fired for violating company policy. Her lawsuit settled.
Employees have the right to protected leave when they are caring for family members. This means they cannot be fired, discriminated against, harassed, disciplined, or otherwise face consequences for using or applying for FMLA leave. Violations of these rights indicate that employers either do not understand or do not care about FMLA laws. Either way, such actions can result in lawsuits being filed against employers.
Doctor Files California FMLA Lawsuit
Los Angeles, CA: A wide-ranging California FMLA lawsuit that alleges violations of the federal Family and Medical Leave Act (FMLA) together with alleged violations against other federal and state statutes was filed in February by a former UCLA resident doctor. The lawsuit, which names among the defendants the University of California Board of Regents, claims that the university denied the plaintiff the right to maternity leave, and later terminated her residency at the university, allegedly because UCLA was not willing to accommodate an unrelated leg injury.
The FMLA is a federal statute that guarantees eligible workers up to 12 weeks of unpaid leave from their duties each year for family or medical reasons, without threat of job loss. The FMLA is observed in tandem with the California Family Rights Act (CFRA) and Family Temporary Disability Insurance (FTDI) observed by the state, which allows for time off with a pay level representing about 55 percent of weekly wages for up to six weeks. The CFRA differs from the federal FMLA in that there is no assumed job protection for workers.
None of the foregoing appeared to be any help to plaintiff Joy Ekwueme, who claims that she was not granted maternity leave while in residency at the UCLA Department of Obstetrics and Gynecology.
According to court documents, the plaintiff was accepted for residency training in March 2013. Ekwueme was pregnant at the time. An orientation session was scheduled for June of that year, which was around the time when the plaintiff was due to give birth. Ekwueme was told by a supervisor, or so it is alleged, that the department did not observe a protocol for maternity leave, requiring Ekwueme to attend orientation training 10 days after giving birth to her child.
Ekwueme also claims in her lawsuit, filed February 2, that supervisors would not accommodate a leg injury, for which she was required to wear a brace and, for a time, required use of a wheelchair.
The California FMLA lawsuit alleges that UCLA later terminated her from the residency program due to the university’s belief that her leg injury negatively impacted her work, a fact the plaintiff disputes given that test results showed that her performance was at the least on par and, in some cases, better than other doctors, or so it is alleged.
It is also alleged that two supervisors went through Ekwueme’s private medical records, a violation of the Health Insurance Portability and Accountability Act, or HIPAA, if proven true. The plaintiff also alleges a hostile work environment. However, the main thrust of the lawsuit continues to be an alleged lack of accommodation according to California FMLA regulations alleged to have been violated.
Case information was not available.
Discrepancy between California Family Leave Act and FMLA
Sacramento, CA: A new study published by Forbes suggests that although employees in California have access to paid family leave, few employees are using it. A major reason for that discrepancy could be that although California’s Family Temporary Disability Insurance (FTDI) allows for paid family leave, it does not offer job protection for workers who take the leave. That protection is offered by the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), but those acts only apply to certain employees who are on unpaid leave.
According to the Forbes (3/4/16) article, California was the first state to allow for paid family leave. Under FTDI, employees are eligible for around 55 percent of their weekly wage for up to six weeks. And although the number of employees using the leave is increasing, in total fewer than two percent of the California workforce used the leave in 2014.
One reason for the discrepancy between availability and use of the program could lie in the job protections. The FTDI allows people paid leave, but it doesn’t offer job protection. That’s offered through the CFRA and the FMLA.
Those acts offer job security, but only to employees who have worked at least 1,250 hours in a year at a company with more than 50 employees. Under FMLA and the CFRA, employees who work for a covered employer are eligible for up to 12 weeks of unpaid, job-protected leave in a year.
In other words, workers in California who are employed by small businesses are eligible for the leave but not entitled to a job at the end of the leave. The prospect of losing a job could be incentive not to take the leave at all.
As of January 1, 2016, California updated its family leave laws. Updates including requiring employers to allow employees to use their available paid sick leave for the diagnosis, care or treatment of an illness of that employee’s family member. The update also includes requiring employers with 25 or more employees at the same location to allow the parent or guardian to take up to 40 hours off each year to find, enroll, or reenroll a child in a school or child care provider; to participate in activities of the school or child care provider; or to address a child care provider or school emergency.
In addition to allowing parents to take time off for their children, Senate Bill 579 allows anyone who is a guardian to the child to take the time, including stepparents, foster parents and grandparents.
Employees whose rights under California laws or the FMLA are violated may be eligible to file a lawsuit against their employer.
New California FMLA Laws Take Effect
Sacramento, CA: Parents in California now have more flexibility when it comes to their families, thanks to a new California family leave bill. The bill, which took effect as of January 1, increases protections for parents who have to take time off to care for children or enroll children in school.
Senate Bill 579 was signed into law by Governor Jerry Brown in October 2015, and affects employers with 25 or more employees at the same location. Parents can take up to 40 hours per year for the care of a sick child or to tend to a child out of school because of an emergency or other unscheduled school closure. The bill also extends the protection to stepparents, foster parents, grandparents and other guardians.
Under the law, non-exempt employers must provide up to 40 hours per year so parents can deal with school or childcare-related situations. Activities included in the protections are enrolling or reenrolling a child in a school or with a licensed childcare provider; participating in school activities; or dealing with a childcare provider emergency or school emergency.
Under the law, for example, a parent could take a leave day if his or her child’s school was unexpectedly closed.
Furthermore, parents and guardians can use a paid sick day to care for a sick child. So, a parent who has accrued sick leave can now use that sick leave either for his or her illness or to care for a sick family member. This would include treatment of an existing health condition or absence resulting from domestic violence.
Employers are prohibited from discriminating against or terminating employees who take protected leaves. Employees whose rights to family leave or sick leave are violated may be eligible to file a lawsuit against their employer.
In addition to changes to family leave, California also has a new minimum wage law. As of January 1, 2016, California’s minimum wage is set at $10.00 per hour, up from $9.00 per hour. The change also means that employees who make minimum wage will see a bump in their overtime pay.
And there have also been changes to the Fair Pay Act, which expand equal pay to jobs that are “substantially similar,” rather than jobs that are identical, and to jobs for the same employer or company even if those jobs are at different locations. Previously the law only applied to jobs at the same location. The changes also make it illegal for employers to prevent employees from talking about their pay.
California Family Rights Act Prevents Employer Interference
San Diego, CA: Under the California Family Rights Act (CFRA), employees of covered employers are eligible for certain job protections, including the ability to take time from work for the birth of a child or the serious health condition of the employee’s child, parent or spouse. When the employee returns to work following the leave, the employee must be given the same or an equivalent job, meaning the employee cannot be fired for taking California CFRA leave - or, for that matter, for taking leave under the Family Medical Leave Act, which is the federal statute protecting employees.
Employers who attempt to prevent an employee from taking his or her CFRA leave could face claims of interference, which occurs when an employer refuses to authorize legitimate CFRA leave, discourages the employee from using the leave, or takes actions to avoid CFRA duties. For example, an employer who decreases an employee’s work hours to make the employee ineligible for leave could be guilty of interference.
In other words, denying leave is itself a violation of CFRA, but so is taking action to ensure the employee is not eligible for that leave in the first place.
Furthermore, employers cannot discriminate against employees or prospective employees for having used or attempted to use their CFRA rights. Employers who use a prospective employee’s assertion of his or her CFRA rights as a reason not to hire that person could be guilty of interference.
“Employers cannot use the taking of CFRA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can CFRA leave be counted against an employee under an employer’s attendance policies,” the regulations state.
Even when employers give other reasons for a job termination, if an employee can prove the firing was likely caused by assertion of CFRA rights, the employee may be able to file a lawsuit. One such suit was filed by Brenda Moore against Century Gaming Management, Inc. (case number B249978), after Moore was fired on the day she returned from CFRA leave. Although she was told she was fired to save costs, the courts found that because she was fired the day she returned from CFRA leave, because she was the only staff person from her department fired, and because her department had, in the previous month, hired six people, she was likely fired in retaliation for taking her leave. The California Court of Appeal ruled in Moore’s favor and reversed a summary judgment in favor of Moore’s employer.
CFRA also prohibits employees from waiving their prospective rights under CFRA and further prohibits employers from inducing employees to waive their rights. This means that employers cannot offer employees other benefits in exchange for waiving their CFRA rights.
Employees who have had their CFRA or FMLA rights interfered with - including having leave denied or being retaliated against for taking leave - may be eligible to file a lawsuit against their employer to enforce their rights and recover any lost wages.
Understanding California Family Medical Leave
San Francisco, CA: When it comes to understanding employment rights, areas such as family leave can be complicated. That’s because family medical leave is covered federally by the Family and Medical Leave Act but is covered in California by the California Family Rights Act. Ultimately, though, it means eligible employees are able to take up to 12 weeks off, paid or unpaid, for certain reasons.
Those reasons include the birth of a child, or adoption, or foster care placement of a child; to care for an immediate family member (that is a spouse, child or parent) who has a serious health condition; or for the employee’s own serious health condition. During FMLA/CFRA leave, the employee’s job is protected, meaning the employee is entitled to return to the same position of employment he or she had when the FMLA/CFRA leave began, or an equivalent position.
Those eligible for FMLA/CFRA leave include employees who have worked for the employer at least 12 months as of the start of the FMLA/CFRA leave and has worked at least 1,250 hours during those months, not counting sick leave, vacation leave or holidays. Under FMLA, employees must also work at a location with at least 50 employees within a 75-mile radius.
Employees who are eligible for leave under FMLA/CFRA but are denied that leave may be able to file a lawsuit against their employer for violation of these laws. Similarly, employees who take their leave but are not reinstated to their position (or an equivalent position) of employment may also be eligible to file a lawsuit.
There are situations in which employers can terminate an employee on FMLA leave, but in such cases there must be evidence that either the decision to terminate was made before the employee took the leave, or that the employee had been non-compliant or had serious on-the-job performance issues that existed before the leave was taken.
If those circumstances do not exist, employees may be able to file a lawsuit against their employer. Claims against employers can include interference, which is defined as refusing to authorize legitimate CFRA leave, discouraging an employee from taking CFRA leave and avoiding employer responsibilities under CFRA, according to The National Law Review (3/26/15). For example, an employer who reduced an employee’s hours of work so the employee is no longer eligible for CFRA leave could count as interference. Employers who discriminate against an employee for taking CFRA leave or who retaliate for taking CFRA leave may also face claims of interference.
California FMLA Lawsuit Stymied by Tribal Immunity
However, there are various twists in this case given that the lawsuit was filed against the Morongo Band of Mission Indians - the operator of the slot facility - resulting in a ruling that sovereign immunity protects the tribe and its casino from FMLA claims.
The plaintiff in the California FMLA case is Crystal Muller, a former slot machine attendant who filed her complaint last November. According to court documents, Muller alleged she had fallen ill in 2010, requiring sick leave under FMLA. The leave had been approved. However, in mid-2013, Muller was terminated from her position. According to the California FMLA lawsuit, a manager at the casino had reported that Muller’s health issues were related to drug use, and that she was not capable of performing her job.
Muller countered that the drugs she was taking were prescribed for her disability - which wasn’t identified - and that the drugs did not impede her work performance in any way.
According to court documents, Muller lobbied for an appearance before the tribal council to plead her case. In her view, the real reason for her termination had little to do with drug use or job performance and everything to do with approved FMLA leave, and she sought arbitration for her case before her approved FMLA leave was set to expire. However, the plaintiff noted that she did not receive a response from the tribal council until a year later, only to be denied.
In her lawsuit, Muller was seeking either a court ruling forcing arbitration with the tribe through a court order or a grant of equitable relief. The defendants, in their response, moved to have the case dismissed - a move opposed by the plaintiff as being premature, given that in her view she had not exhausted all available remedies at the tribal level.
However, in her ruling, US District Judge Virginia A. Phillips noted that sovereign immunity protected the tribe and the casino it operated from claims under FMLA. Judge Phillips said the tribe did not consent to face FMLA claims by entering a gaming compact with the state of California that obligates the tribe to meet Fair Labor Standards Act requirements and waives sovereign immunity to casino-related personal injury and property damage claims.
“The court will not infer a waiver of immunity as to certain types of claims based on a separate, unrelated waiver of different categories of claims,” she wrote.
“Defendants correctly point out that no tribal remedies are available,” she wrote. “Exhaustion is not required, in a case such as this, where it would be futile.”
The judge also dismissed Muller’s claims against two individual tribal officers, finding their official actions are protected by the tribe’s immunity.
The case is Crystal A. Muller v. Morongo Casino Resort and Spa et al., Case No. 5:14-cv-02308, in the US District Court for the Central District of California.
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