— Posts About FMLA

SCOTUS Rules that Self-Care Provision of the FMLA does not Apply to the States: North Carolina Not Affected

In Coleman v. Court Of Appeals Of Maryland, Daniel Coleman was employed by the Court of Appeals of the State of Maryland.  When he requested sick leave, he was informed he would be terminated if he did not resign.  He then filed an FMLA suit, which was dismissed on sovereign immunity grounds.  Breaking along the familiar 5-4 line, the Supreme Court affirmed the dismissal.  Under the Court’s recent 14th Amendment jurisprudence, Congress can abrogate state sovereign immunity under Section 5 only if its legislation is sufficiently “tailored” to remedy violations of the 14th Amendment’s substantive provisions, such as the Equal Protection Clause.  In Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003), the Court held this standard was met by the family-member-care provision of the FMLA because it addressed gender discrimination related to family leave.  The majority here, however, found no “widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave,” and thus no Equal Protection basis for the provision.

Justice Ginsberg, in dissent, discussed the entire history of the FMLA and its focus on addressing gender discrimination in employee leave policies.  One of the primary motivations for the self-care provision was to provide leave for women suffering from pregnancy-related illness and those recovering from pregnancy.  Also important was mandating personal leave in addition to family leave so that employers would not have a new reason to discriminate against female employees.  She thus found a sufficient basis for Congress to apply the FMLA to the states.

State employees in North Carolina are not hurt by this decision, however, because North Carolinahas waived its sovereign immunity for FMLA suits brought by state employees.  See N.C. Gen. Stat. § 143-300.35(a)(3).

Categories: Judicial Decisions Tags: , , , ,

Recent Fourth Circuit Employment Decisions

The Fourth Circuit has published a couple of opinions on employment law cases in recent weeks.  The first case, Bonds v. Leavitt, concerned a federal employee’s suit against the Department of Health and Human Services, which alleged Title VII claims, retaliation claims under the Whistleblower Protection Act (WPA), and unlawful termination in violation of the Civil Service Reform Act of 1978 (CSRA).  The plaintiff is a research doctor who claims she was retaliated against for opposing discrimination against African-American donors of blood lines.

The Court held that, because plaintiff’s CSRA claim was based on her EEO charge, the district court’s dismissal of the CSRA claim was improper.  The Court also held that the district court erred in granting summary judgment against plaintiff on her WPA claim as she created genuine issues of material fact regarding whether her whistle-blowing was properly reported and known by the supervisor who terminated her.  However, the Court held that the district court was correct to grant summary judgment against plaintiff on her Title VII claims because plaintiff was not whistle-blowing about an employment practice, which is necessary for a Title VII retaliation claim.

In Coleman v. Maryland Court of Appeals, the Court upheld the dismissal of the plaintiff’s Title VII claims on the pleadings.  Applying the misguided heightened pleading standard recently created by the Supreme Court, the Fourth Circuit held the plaintiff did not sufficiently allege discrimination because he did not establish a plausible basis for believing white co-employees were similarly situated to him or that race was the true basis for his termination.  The Court also upheld the dismissal of his FMLA claims, holding that under the Eleventh Amendment, Congress has not properly allowed FMLA claims against a State where the FMLA claim is based on the need for leave for one’s own medical condition.

Categories: Judicial Decisions Tags: , , , , , , , , , , , , ,

Burton Speaking at NCAJ Conference This Weekend

Burton Craige and Leto Copeley are speaking this weekend at the North Carolina Advocates for Justice Mountain Magic Conference.  Burton is leading a panel entitled “Collateral Attack on the Collateral Source Rule.”  He will lead a discussion about the national trend to allow defendants to introduce evidence of the amount actually paid for medical expenses, rather than limiting the evidence to the amount billed.

Leto will be speaking about employment law issues that workers’ compensation practitioners should be aware of, such as the ADA and FMLA.  Wage and hour issues are also important ones to consider.  As this short paper prepared by Leto and Narendra Ghosh states, “Workers’ compensation practitioners should remain vigilant for potential wage and hour violations as they pursue claims for their clients. When getting information on a client’s average weekly wage, for instance, it is important to at least consider whether your client is getting paid fully, including for overtime, under the wage and hour laws.”

Categories: News of the Firm Tags: , , , , , , , , , , , ,

DOL Expands FMLA to Cover Non-Traditional Families

The federal Department of Labor issued some important guidance regarding the coverage of the Family and Medical Leave Act (FMLA) as it applies to all sorts of unconventional families. The DOL made clear that FMLA rights to get time off to care for children do not require a biological relationship with the child. Rather, anyone who has assumed the role of parent (for example a non-married step-parent, grandparent, or same-sex partner) is entitled to FMLA leave to care for the child.  Continue for highlights from the guidance: Read more…

Categories: Legislative Action Tags: , , , , ,

Op-Ed Calling for Paid Maternity and Family Leave

An op-ed in the Washington Post calls for paid family and maternity leave because the 12 weeks of unpaid leave provided by the Family and Medical Leave Act (FMLA) is grossly inadequate.  Sharon Lerner traces the history of legislative efforts to provide paid leave to support workers’ families, the compromised law that is the FMLA, and the pernicious effects of inadequate paid leave.  The need for reform is stark:

When it comes to paid maternity leave, the United States is in the postpartum dark ages.  One hundred and seventy-seven nations — including Djibouti, Haiti and Afghanistan — have laws on the books requiring that all women, and in some cases men, receive both income and job-protected time off after the birth of a child. But here, the Family and Medical Leave Act of 1993 provides only unpaid leave, and most working mothers don’t get to stay home with their newborns for the 12 weeks allowed by the law. Many aren’t covered by the FMLA; others can’t afford to take unpaid time off. Some go back to work a few weeks after giving birth, and some go back after mere days.

Categories: Legislative Action Tags: , , , , , ,

New Report on Work-Family Conflict

On the heels of Mike’s talk to the North Carolina Legislature’s Joint Study Committee on Work and Family Balance, the Center for American Progress has published an excellent new report, “The Three Faces of Work-Family Conflict.”  The paper describes how the typical workplace today is deeply out of sync with today’s workforce because of dramatic changes over the past few decades in incomes, working hours, and patterns of family care.  Moreover, our employment laws have failed to keep up with these changes, and offer little support or protection for working families.  The report calls for:

  • Short-term and extended leaves from work, including paid time off for family and medical leave and paid sick days.
  • Workplace flexibility to allow families to plan their work lives and their family lives.
  • High-quality and affordable childcare so that breadwinners can concentrate on work at work, and
  • Freedom from discrimination based on family responsibilities.

Check out the full report or the executive summary for more details.

Categories: General News Tags: , , , , ,

Mike Okun Speaks to NC Legislative Committee on Work and Family Balance

Yesterday, Michael Okun spoke in front of the North Carolina Legislature’s Joint Study Committee on Work and Family Balance.  Mike presented an overview of employment law, the specific laws that assist employees in caring for family members and themselves, and possible improvements that could be made to further assist employees as they balance the demands of work and family.

An excellent paper on the topic is “Free Riding on Families: Why the American Workplace Needs to Change and How to Do It,” an Issue Brief by Phoebe Taubman, an Equal Justice Works Fellow with A Better Balance: The Work and Family Legal Center, based in New York City.  The paper discusses the need for reform, compares our laws to the more robust protections available in most other countries, and proposes reforms in the areas of: an improved Family and Medical Leave Act, paid sick days, workplace flexibility, employment discrimination against caregivers, and workplace equity.

Categories: Legislative Action Tags: , , , , , ,

President Signs Expansion of FMLA for Military Families

Last week, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA), an appropriations bill that includes an expansion of the Family and Medical Leave Act (FMLA) for military families.  Specifically, it broadens the scope of caregiver and exigency leave for military families.  Details should be available from the Department of Labor in short order.

Categories: Legislative Action Tags: , , , , ,

Study Shows that Unions Help Make Family-Friendly Workplaces

Family-Friendly Workplaces: Do Unions Make a Difference?, written by Jennifer MacGillvary of the Labor Center at the University of California-Berkeley and Netsy Firestein of the Labor Project for Working Families, concludes the unions lead to workplaces that, through policy and practice, promote a healthy and viable balance between work life and home life.   Significantly, the study finds that unions increase compliance with the Family and Medical Leave Act, ensure paid sick leave for employees and their children, and increase the likelihood that health care is covered for families.

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2008 AFL-CIO LCC Conference Session on Protecting Injured Workers

Valerie Johnson spoke at the 2008 Annual Conference of the AFL-CIO Lawyers Coordinating Committee (LCC), which was held in Seattle.  Valerie’s talk was part of a session concerning health and safety for workers.  She presented a paper, written along with Narendra Ghosh, titled How Can Unions Protect Injured Workers?

Summary: This paper discusses some common problems faced by injured workers and the remedies available to them. First, workers are often blamed for their own injuries, and then disciplined or discharged for violating safety rules. Those covered by a CBA can contest those sanctions through arbitration. Second, workers who have recovered from their accident may be denied from returning to their jobs on account of their injury. In some cases, such a denial is unlawful under the Americans with Disabilities Act (“ADA”). Third, workers injured by unsafe workplaces may be retaliated against if they report the safety hazard to their employer. Retaliation can be challenged under OSHA § 11(c), and often also under state law.  Finally, those assisting injured workers should always bear in mind the benefits available under workers’ compensation law and the Family and Medical Leave Act (“FMLA”).

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