The U.S. Department of Labor (DOL) has issued an official interpretation expanding the definition of “son or daughter” to include children in non-traditional families under the Family and Medical Leave Act (FMLA).  The FMLA provides that an employee may take up to twelve weeks of leave to care for a newborn, adopted son or daughter, or son or daughter with a serious health condition.  The DOL’s newly issued interpretation clarifies that “son or daughter” means virtually any child where the employee assumes the obligations of a parent without any formal declaration.  According to the Department of Labor, this interpretation “sends a clear message to workers and employers alike:  All families, including LGBT families, are protected by the FMLA.” Click here for the official DOL interpretation.

The employment lawyers of The Employment Law Group® law firm have substantial experience litigating FMLA based claims.  For more information about the firm’s Discrimination Law Practice, click here.

On March 5, 2010, a jury in the United States District Court for the District of Columbia found Novartis Pharmaceuticals liable for retaliation in violation of the Family and Medical Leave Act (FMLA), awarding Mary Kate Breeden over $289,669 in back pay.  Under the FMLA’s liquidated damages provision, this amount is automatically doubled and entered as a partial judgment of $579,338.  The District Court has yet to decide the amount of front pay, attorney fees, and costs to award.

Kate Breeden worked as a pharmaceutical sales representative for Novartis.  After announcing that she was pregnant, Novartis cut her sales territory in half leaving her with fewer and smaller accounts.  When she objected to the change, her supervisor said it was temporary and that she would be made “whole.”  Upon returning from maternity leave, Ms. Breeden was informed that the changes were permanent.  Novartis later reorganized the sales territories again, at which time they consolidated her territory with another and eliminated her position.  Defending their actions, Novartis claimed that an outside consulting firm organized the realignment and did not take Ms. Breeden’s FMLA leave into account.  However, her maternity leave was mentioned in a Powerpoint presentation given by the consulting firm.

The jury found that Novartis retaliated against Ms. Breeden by cutting her sales territory when she announced that she was going to take leave or later when Novartis refused to make her “whole” after she returned to work, ultimately hurting her career and leading to her termination.  Ms. Breeden is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information about Mr. Carter, Mr. Oswald and the firm’s Family and Medical Leave Act Discrimination Practice, click here.

On February 16, 2010, U.S. District Court for the District of Columbia Judge James Robertson allowed TELG client Mary Kate Breeden to proceed with her FMLA retaliation claim in Breeden v. Novartis Pharmaceuticals Corp.. Breeden worked as a pharmaceutical sales representative.  After announcing that she intended to take maternity leave, Novartis announced a restructuring of their sales territories reassigned Breeden to an area with lower sales.  After she objected, her manager said the change was temporary and that she would be “made whole.”  When she returned from leave, Breeden learned that the changes were permanent and was never “made whole.”  Novartis later reorganized the territories again, at which time they consolidated Breeden’s territory with another and terminated her position. 

Novartis claims that it would have taken the same actions regardless of Mrs. Breeden’s use of FMLA leave and sought summary judgment of her claims.  Judge Robertson granted the motion in part and dismissed Breeden’s discrimination claim.  However the Judge found that her employer’s decision not to make her “whole” could be seen as retaliatory.  The Judge held that “employees might reasonably fear that asserting their rights under the FMLA, as Breeden did, would result in diminished sales territories, with attendant risks of reduced opportunities for promotion and increased risk of termination.”  Further “Novartis’s eventual decision to terminate Breeden’s employment provides some ex post confirmation of the reasonableness of such fears.”

For more information about The Employment Law Group® law firm’s Family and Medical Leave Act Practice, click here.

On October 28, 2009 President Obama approved legislation expanding the Family Medical Leave Act (FLMA).  The amendment to the FLMA extends the availability of exigency leave to the family of regular armed forces in addition to activated Reserve and National Guard members.  The amendment also expands caregiver leave for service members and veterans.  The amendment was included in Section 565 of the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).

The FLMA previously provided up to 12 weeks of exigency leave for family members of Reserve and National Guard members called or about to be called to active duty.  This amendment expands coverage to the families of regular military members that are deployed or about to be deployed.  The burden and struggles faced by the family of any deployed service member is tremendous, regardless of their duty status. 

The Act also expands caregiver coverage to apply to the aggravation of pre-existing conditions as well as to veterans for up to 5 years after their separation or retirement from the military.  Caregivers are able to take up to 26 weeks of leave per year.  This coverage is extended to injuries that existed before the individual joined the military which were aggravated by service in the line of duty.  And, perhaps most importantly coverage is extended to conditions that were not apparent until after the individual became a veteran.  This includes post traumatic stress disorder, more commonly referred to as PTSD, and brain injuries which often are not manifest during an individual’s military service.

The vast improvements in our soldiers’ body armor are saving lives. However, many of the individuals saved by these improvements are coming home with missing limbs and other traumatic injury or illness. The adjustments to civilian life take time and soldiers need the support of their family members.  This Act is an important step in giving these warriors much needed help. 

For information on The Employment Law Group® law firm’s Family Medical Leave Act Practice, click here.

In November 2008, the Department of Labor issued revised regulations for the Family Medical Leave Act (FMLA), which became effective on January 16, 2009.  These new regulations however, differ from comparable regulations that California’s Fair Employment and Housing Commission had issued interpreting the California Family Rights Act (CFRA), California’s version of the federal FMLA.   Thus, the Commission has issued an updated comparison chart outlining the key differences between the revised FMLA regulations and the Commission’s CFRA regulations.  Key differences include: 

1. Pregnancy as a “Serious Health Condition” – Pregnancy is considered a serious health condition under the FMLA however, pregnancy is not covered under the CFRA.  Instead, in California a pregnant employee is entitled to a pregnancy disability leave of up to 4 months.
2. Domestic Partners – Domestic partners are not considered “spouses” under the FMLA.  Under the CFRA, however, registered domestic partners like spouses are entitled to family leave.
3. Military Leave – FMLA now includes 26 weeks of leave to care for injured family members that are in the military, and 12 weeks of leave for “qualified exigencies.”  California however, does not offer this privilege under the CFRA. 

To view the full comparison chart, click here.  For information on The Employment Law Group® law firm’s Employment Discrimination Law practice, go to http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp

Judge Norma L. Shapiro (U.S. Dist. Court. ED Pa) awarded Melissa Brown $160,000, more than double the jury award against her employer, Nutrition Management, for its bad faith violation of the Family and Medical Leave Act (FMLA).

Under the FMLA, any damages award is subject to mandatory liquidated damages equal to the amount of the award itself, unless the employer can show that it acted in good faith.

Noting that the FMLA does not define “good faith” and that the Third Circuit Court of Appeals has yet to provide a definition, Judge Shapiro stated that “[r]easonable good faith requires a defendant to take affirmative steps to ascertain the requirements of the law.”  Here, Judge Shapiro held, Nutrition Management’s conflicting testimony regarding its reasons for terminating Ms. Brown lacked credibility.  Further, Judge Shapiro held, testimony that Nutrition Management “reasonably believed” there was no FMLA violation without any evidence of any affirmative steps taken to understand its legal obligations was insufficient to meet its burden of proving good faith.  Thus the court held that it “would be a clear error of law for the court not to amend the judgment to include liquidated damages.”

For information on The Employment Law Group® law firm’s Discrimination practice, click here.  To view the decision discussed above, Brown v. Nutrition Management Services Co., No. 06-2034 (E.D.Pa. Jan. 21, 2009), available here.

The Department of Labor (DOL) issued a final rule significantly changing, for the first time in 15 years, the Family Medical Leave Act (FMLA).  While the new regulations, which become effective January 16, 2009, benefit wounded military service members, they are generally favorable to employers and curtail the right of employees to take family and medical leave.  Key changes include:

1. Medical Certification Process – Nearly any employer representative, except the employee’s direct supervisor, can obtain detailed information about the employee’s illness directly from the employee’s healthcare provider, without using a medical professional or obtaining the employee’s authorization.  An employer must put any medical certification deficiency in writing and give the employee one week to provide the information. 
2. Military Leave – The new regulations increase unpaid leave for wounded military service members or relatives caring for them, from 12 weeks to six months per year.  Eligible caregivers are expanded to include grandparents, aunts, uncles and first cousins in addition to spouses, children and parents. FMLA may be used for “any qualifying exigency” related to a covered family member’s active duty, which includes a child’s education and other reasons.
3. Employee Notice – Employees must provide advance notice of FMLA leave to their employer, rather than a two day notice of the FMLA-qualified sick day.  Notice must be given in the same method used for non-FMLA sick calls (usually hours prior to the employee’s shift), except for unusual circumstances.
4. Employer Notice Requirement – Employers have up to one week to notify employees of their rights under the FMLA, an increase from two days under the current regulations.
5. Waiver of Rights – The new regulations clarify that employees may voluntarily waive retroactive FMLA rights in a settlement, but prospective rights under the FMLA may not be waived.
6. Taking Leave – Employers are prohibited from counting “light duty” against FMLA leave.  Employers may still require employees to take accrued leave, however employees may also choose to do so where consistent with company policy.
7. Fitness-for-Duty Certification – Employers are permitted to use “fitness-for-duty” certifications to show that a returning worker is able to perform essential functions of the job.  In addition, employers may use “fitness-for-duty” certifications to determine whether an employee is eligible for intermittent leave.

For information on The Employment Law Group® law firm’s Employment Discrimination Law practice, go to http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.  The final 200-page FMLA rule is available at: http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.