FMLA: Labor and Employment Law

FMLA: Labor and Employment Law Situation The Family and Medical Leave Act of 1993 (FMLA) mandates that employees at most major entities (thus including Company X, as Company X has over 75 employees) are entitled to a total of up to 12 work weeks of unpaid leave to fulfill certain family responsibilities during any 12-month period (Family and medical leave, 2010, U.S. Office of Personnel Management).

These responsibilities include the birth of a child; the adoption or fostering of a child; and the care of a spouse, child, or parent with a serious medical condition. Similarly, "a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions" is also covered under the provisions of the Act (Family and medical leave, 2010, U.S. Office of Personnel Management).

In this case, the employee in question was taking care of a spouse with a serious health condition, as well as two newborn children. Thus Employee a was well within his rights to take 11 work weeks of time off under the provisions of the FMLA. However, the Act merely covers unpaid, rather than paid leave, so the new manager is also within his or her rights not to pay Employee a a salary for the time he was away from work.

Company X is under no contractual obligation to give paid parental leave: such an agreement was not advertised as part of the employee benefits package in the scenario, it was merely an agreement between the former manager and Employee a. However, the manager must return the employee on leave to the same or to an "equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment" (Family and medical leave, 2010, U.S. Office of Personnel Management).

The amount of unpaid sick leave that an employee can use to care for an ailing family member is limited under the FMLA, but in this case Employee a left to care for his ailing wife and premature twins. An employee can substitute annual leave and sick leave for unpaid leave under the FMLA although this employee does not seem to have elected to do so.

If the employee wishes to substitute some of his paid annual leave or sick leave for the 11 months he took off to take care of his wife, he can negotiate a compromise option between himself and the new manager and the Company X HR staff. But under the law, there is no company obligation to grant Employee a paid family leave, only unpaid family leave, so long as he is returned to the same or equivalent position before taking the leave.

In the interests of company morale, it might behoove the new manager to establish a good rapport with his staff and work out an agreement with Employee a, that enables Employee a to use some alternative types of paid leave to 'make up' for the loss of his income during the 11 months he spent caring for his wife. Situation B Situation B. is a clear violation of the Age Discrimination in Employment Act (ADEA) of 1967.

The older employee in question was age 67 and ADE protects individuals who are 40 years of age or older from employment discrimination based on age. "The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older" (Facts about age discrimination, 2008, EEOC). The worker was clearly discriminated against for a promotional opportunity based upon his age, despite his superior performance. All of the available evidence suggests that Employee B. was doing superior work in contrast to his younger co-worker. There is a clear 'paper trail' of performance reviews establishing Employee B's superior performance and ability to do a high-quality job.

Also, the specific stated rationale for not giving Employee B. The promotion was age. There is no evidence that taking the promotion required qualities only a young person might have (such as the agility required by a dangerous occupation, or an occupation based upon physical strength). In some instances, regarding benefits, employers may have some discretion under the ADEA.

For example, in deference to the fact that the costs of providing benefits to older workers are often greater than for younger workers, the Older Workers Benefit Protection Act of 1990 (OWBPA) specifically prohibits employers from denying benefits to older employees but allows employers in "limited circumstances" to reduce benefits based on age, so long "as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers" (Facts about age discrimination, 2008, EEOC).

While the company could offer fewer benefits to Employee B. than he might otherwise get, based upon his seniority, they would have to be comparable to that of a younger worker. However, he cannot be denied the promotion altogether. Also, from a public relations standpoint, it is disastrous for the company to engage in such a blatant act of discrimination against older workers.

Situation C According to the Americans with Disabilities Act, when "determining whether an accommodation would impose an undue hardship on a covered entity" factors to be considered include, "the nature and cost of the accommodation," the financial resources of the employer, and the type of operations and facility involved that must be modified to accommodate the person with.