Employers: Take Care Before Firing an Employee who Has Requested FMLA Leave

Posted by on Sep 30, 2009 in Caregiver Discrimination, Disability Discrimination, FMLA, Retaliation, Wrongful Termination

By: Tiffanie Benfer, Esq.
Has your employee asked for time off under the FMLA? The Third Circuit has made clear that firing that employee after the leave is requested but before it begins constitutes unlawful “retaliation” under the FMLA.
Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.
The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.
On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.

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Don’t Tell Me You Didn’t Check with a Lawyer!

Posted by on Feb 9, 2009 in FMLA, Pregnancy Discrimination, Wrongful Termination

By: Tiffanie Benfer, Esq.
Sometimes it can be penny wise and pound foolish to take action against an employee without a clear understanding of the law.
In Brown v. Nutrition Management Services Co., a decision of the Eastern District of Pennsylvania released on January 30, the court found that the company’s failure to have an attorney research the requirements of the Family and Medical Leave Act (“FMLA”) meant that the company had not acted in “good faith.” This finding cost Nutrition Management Services over $80,000 in additional liquidated damages.

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Layoffs: Top 10 Tips for Employers Who Would Rather Not Land in Court

Posted by on Dec 5, 2008 in FMLA, Gender Discrimination, Pregnancy Discrimination, Racial Discrimination, Reductions in Force, Sexual Harassment, Wrongful Termination

By: Tiffanie Benfer, Esq.
The New York Times reports that 533,000 jobs were lost in November, the largest one-month decline since December 1974.
http://www.nytimes.com/2008/12/06/business/economy/06jobs.html?_r=1&adxnnl=1&adxnnlx=1228507331-YNAOQpjUJ8LVr45LIZgrIg
No doubt that this is a difficult time for both employers and employees. For employees facing layoffs, emotions are obviously running high. For employers, a reduction in force brings many possible pitfalls. An ounce of prevention in the form of careful planning and review of the decisions of managers may prevent many pounds of damage in the form of lawsuits and liability. Here are some suggestions for employers:
1. Take a careful look at the demographics of the people who will be laid off. Consider having someone independent of the managers who made the layoff decisions conduct this analysis. Make sure that employees in a protected class – older workers, women, or any particular racial group – are not being targeted disproportionately. Imagine that you will have to explain any disproportionate impact to a jury.

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New Regulations May Add Hurdles for Employees Who Wish to Take FMLA Leave

Posted by on Nov 18, 2008 in FMLA

By: Tiffanie Benfer, Esq.
The Department of Labor yesterday published new regulations interpreting the FMLA (Family Medical Leave Act). Those regulations will become effective in 60 days.
The new regulations are voluminous, and we are still in the process of analyzing them. Here’s a link, for anyone who wants about 700 pages of light reading:
http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf
By way of background, the FMLA allows qualified employees (roughly speaking, employees who have been employed by the employer for at least 12 months) of covered employers (employers with at least 50 employees) to take a leave of up to 12 weeks in a 12 month period for specific reasons, such as the birth of a child, a serious health condition, or to care for an immediate family member with a serious health condition.
The new regulations are helpful to employees because they provide guidance on expanding FMLA coverage for military families. The DOL also declined requests from employer groups to limit the definition of “serious health condition.” However, the regulations also add some hurdles for employees who need to take FMLA leave.

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