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Employee rights under the Family and Medical Leave Act (FMLA)

At the best workplaces, employers accept and understand that employees have lives outside of their jobs. While it can be tricky to balance overlapping responsibilities at times, most people make it work.

Sometimes, though, a health issue or life change takes precedence over everything else. Maybe it’s a happy event, like the birth of a child or adoption. Or it’s something less expected, like a car accident injury, a spouse’s cancer diagnosis or a parent’s broken hip. The Family and Medical Leave Act (FMLA) makes space for employees to get the care they need, or to care for a close family member, without having to choose between their family and their job.

FMLA has its limitations: It’s only available to eligible employees, and it can be unpaid. But employers also sometimes abuse their workers’ FMLA rights, interfering with an employee’s leave request or retaliating against employees who invoke their rights.

So what do you need to know about this federal protection, and what should you do if you think your employer is acting unfairly? 

Before you start: Are you eligible for FMLA?

Many workers are surprised to learn they don’t have FMLA protections only after they have a health crisis, share pregnancy news with a boss or request time to care for a family member. Only 56 percent of employees are actually eligible for FMLA leave, according to a brief prepared by Abt Associates.

To be eligible you need to:

       Work for an employer with 50 or more employees, or work for a public agency or an elementary or secondary school (a “covered” employer)
       Have worked at the job for at least 12 months
       Have worked for at least 1,250 hours
       Work for an employer with at least 50 employees within 75 miles

 If you’re considering a job at a small firm or a remote position, it can be helpful to check the company’s paid leave and unpaid leave policies since you might not have FMLA eligibility.  

Your employer can’t threaten your job

FMLA allows for up to 12 weeks of leave in a 12-month-period of unpaid, job-protected leave for qualifying reasons. During that time, employees can stay on their group health insurance plan (covering their own portion of the premium just as they would while working) and return to the same job—or, at least, to one that’s similar in pay and responsibilities.

Holding open positions sometimes challenges employers, and there are ways to make the request for leave go more smoothly. The U.S. Department of Labor Wage and Hour Division, which administers FMLA, suggests giving employers 30 days’ advance notice when you know something is scheduled, like surgery, an induction or a first chemotherapy treatment. But when you have an urgent need, it’s acceptable to let an employer know as soon as you can.

If your employer denies your family leave, suggests you should work through your medical condition or threatens your job, you’re being treated unfairly.

Your employer can’t ask for your medical records

FMLA covers serious health conditions and major family needs, including:

       The birth, adoption or foster care of a child, within one year of birth or placement
       The care of an employee’s spouse, son, daughter or parent with a serious health condition
       The employee’s own treatment and care during a serious health condition

Military family caregivers are also entitled to FMLA leave, as are active duty service members during deployments.

While your employer may need some documentation to approve your FMLA request, you never have to share medical records, sign waivers allowing your employer to speak directly with your doctor or answer questions about your family history.

Instead, your employer can ask for a medical certification—a document prepared by your health care provider that outlines your medical reasons and estimates how long you’ll require treatment. Medical certifications contain everything an employer would need in order to approve your FMLA without violating your patient privacy.

Your employer can’t deny FMLA for mental healthcare

If you need therapy, inpatient treatment, counseling or other mental healthcare for a qualifying serious condition, your employer can’t make a distinction between physical and mental health needs. 

Your employer can’t make you work on leave

FMLA is unpaid leave. If your employer is asking you to work, remain available for questions or otherwise continue to do your job, you’re not being treated fairly. 

Your employer must provide an equivalent position upon your return

While employers don’t have to hold open your exact position while you’re on leave, they also can’t switch you to a role with lower pay or fewer responsibilities when you’re back.

Additionally, it’s illegal for employers to retaliate against you for taking FMLA leave. This might include setting you up for failure, giving you poor performance reviews, leaving you out of crucial meetings, changing your work schedule so that you can’t care for your family or even firing you. It’s here where FMLA violations often overlap with discrimination based on protected characteristics, like pregnancy, sex or disability.

Contact Radford & Keebaugh to talk about your FMLA concerns

If you are a covered employee, you have a right to FMLA and its job protections. If your employer has discouraged you from taking FMLA leave, demanded private medical information, threatened to reveal your medical condition or retaliated against you for using your leave, you should speak to an employment lawyer. If your employer has abused your FMLA rights, it’s also possible they’ve discriminated against you.

Negotiating a severance agreement: know your rights and form a strategy

With layoffs dominating the news (and likely your LinkedIn feed), severance is top of mind for many employees right now, even if they have yet to face a sudden cut. Even employees who are terminated for performance may be asked to sign a severance agreement that contains a general release of claims.

While severance pay isn’t a given—the Fair Labor Standards Act (FLSA) doesn’t require companies to provide it—many businesses choose to do so. It’s a way to soften departures for valued employees, manage the company’s reputation and head off potential employment lawsuits. In exchange for some clearly defined benefits, including pay, insurance coverage or even strong references, companies ask employees to release them from future litigation, sometimes also throwing in non-compete or non-disclosure agreements.

Because both the departing employee and the company stand to gain from the agreement, there is the potential for negotiation. Unfortunately, employees don’t always realize this. In an effort to quickly secure what they can, many leave money or other benefits on the table, limit their future prospects with onerous non-competes or cut off the possibility of a valid employment lawsuit.

So, what are your rights when it comes to severance negotiations, and how can you move on with your career in the most positive way?

Don’t feel pressured to sign immediately

It’s easy to feel blindsided by a separation. But while your computer may suddenly be disabled and your badge frozen, that rushed feeling of finality shouldn’t extend to your severance negotiations. It’s always a good idea to take some time to process the news, move past the immediate shock and really examine the package your company presents.

If you are over 40 years old, the Older Workers Benefit Protection Act ensures that you have 21 days to consider a severance agreement, then 7 days to change your mind after signing. If you are part of a reduction in force (mass layoff), you have 45 days to consider. Consequently, many companies use at least the 21-day waiting period as a standard for all departing employees.

While you may wish to confirm the timeline with HR during your termination meeting, don’t feel obligated to sign anything on the way out. You should always have time to call an employment lawyer and schedule a severance agreement review.

Consider the terms of your dismissal

While some layoffs may leave you in the company of thousands of your coworkers, others feel more personal. Look back on your employment and your dismissal. Do you feel you may have been the victim of discrimination, because you are a racial minority with your employer? Do you feel your sex was a factor because of sexist comments made by members of management? Did you request a medical accommodation, or medical leave shortly before being fired? Did you speak up against discrimination, and now you feel you are suffering retaliation?

If so, you have legal rights to have these concerns investigated by the U.S. Equal Employment Opportunity Commission (EEOC), and the right to bring a lawsuit if you have evidence to support your claim. Before waiving these valuable rights, you need to ensure the severance offered is adequate consideration.

During a severance package review with an employment attorney, you can discuss your dismissal and talk through your options. Pursuing litigation is never easy, but sometimes it’s the right choice. Signing your severance package closes that door definitively.

Negotiate your pay, but also look beyond it

Some companies adopt a standard severance package offering about two weeks of pay for every year you’ve worked—more if you’re a manager or executive. Pay is a straightforward place to negotiate.

Aside from pay, however, you’ll want to examine the following:

Accrued vacation time: If your PTO balance is in the positive, you could request this is paid out separately from your negotiated severance pay. In Georgia, your employer is not legally obligated to pay your unused PTO balance, but it can be a good negotiating point.
Health benefits: Many companies are required to offer COBRA benefits, allowing you to stay on the company insurance plan for up to 18 months. Because you have to carry the employer’s cost plus your own premiums, this can quickly eat up your budget. Talk to your employer about covering their share of the costs until you find a new job—especially if you have known healthcare needs.
Stock options and retirement plans: Company policies differ a lot here. Ask for policy documents in your meeting, then review them with a Georgia employment lawyer before you sign.
Perks: If you enjoyed airline elite status, a subsidized gym membership or the use of a company car, check to see if your employer includes them in your package. Like pay, it doesn’t hurt to ask your employer to extend perks until you find your next position.
Outplacement services: Businesses sometimes offer career counseling or coaching to help smooth employee transitions. If you were in a high-growth stage of your career or you’re ready to try something new, check to see if these are included.

Be careful with non-compete agreements

Pay, insurance and extended perks can all help ease your transition into a new role. But if your package includes a non-compete agreement that limits your ability to work in your field, you’ll struggle in the long run. Have your employment attorney review any confidentiality clause, non-disparagement clause, cooperation clause or non-solicitation clause, especially if you plan to stay in a similar field, local market, or start your own business.

Ask for what you need

While a layoff might leave you feeling retrospective—looking back on your job and what you brought to the company—it’s also a great time to consider your future and what you value most. In addition to speaking with an employment lawyer, you may wish to schedule a career counseling session to get a sense of your prospects and the timeline for landing a new job, furthering your education or switching careers.

Once you have at least a rough sense of where you’re going, ask your former employer for what you need most. If you’re expecting a baby, maybe that’s a lump payment and extended healthcare coverage. If you expect to secure a new job soon, you might want continued perks and an adjusted departure date. If you’re switching careers, coaching and distributed payments that lessen your tax burden might make more sense.

Manage your reputation

Today, many employees are more open about job loss, understanding the power of networks and the cyclical nature of hiring and firing. But that doesn’t mean you can’t finesse your exit as a part of your severance negotiations. If you’re at the executive or management level, consider the planned communications about your departure. Will you be able to review or offer quotes? Will your company presence, especially your bio, stay live online while you look for a new job? Will you be able to expect a reference?

As you move on to your next role, keep tabs on your own achievements. It’s helpful to have a record of what you’ve accomplished if you ever find yourself in severance negotiations or considering an employment lawsuit. Downsizing can happen at any time, and it’s a good idea to stay ready—no matter how much you enjoy your work or feel confident in your company’s stability.

Schedule your severance agreement review with Radford & Keebaugh

If you’ve been laid off, give us a call to set up a severance agreement review. We’ll let you know what’s expected in a fair severance package, and we’ll help you identify where to negotiate. Contact us today to set up your severance review.

How to Protect Yourself from Unlawful Workplace Harassment

Speak up to protect yourself from unlawful workplace harassment

Workplace harassment can quickly drain the joy out of any job. While there’s a growing shift toward speaking up about abusive comments and conduct—the #MeToo movement marked a major change—plenty of people still feel pressured to stay silent.

Employees at every level—from hourly workers to those in senior management—, can feel silenced. Low wage earners and those who face power imbalances like immigration status may fear they’ll lose much-needed work or endanger their family’s safety if they report harassment. Those in management or executive roles may worry they’ll derail a career they have built over many years, burn bridges in their industry, or gain an unfair reputation for being difficult.

No one deserves to endure workplace harassment. It should never be a condition for continued employment or career advancement.

If you feel like you’re being harassed at work, early intervention, clear self-advocacy and documentation are your best strategies for ending the negative behavior and protecting your legal rights so you can move forward in your career. If the harassment doesn’t stop, or if your company retaliates against you, those strategies will also form the foundation for your legal complaint.

What is workplace harassment?

Legally, harassment occurs when a supervisor, coworker, vendor, client or customer makes an employee or group of employees feel threatened or abused, and that behavior centers on one or more protected characteristic, like race, religion, color, sex (including gender identity, pregnancy and sexual orientation), national origin, age, genetic information and disability.

Unfortunately, the law does not cover harassment when it is not based on one of these characteristics—e.g. you have an “equal opportunity jerk” for a boss. Indeed, not all toxic behavior is illegal. Leaders may micromanage. Coworkers may make passive-aggressive comments. Clients may let slip an inappropriate joke.

Title VII of the Civil Rights Act of 1964 protects workers against unlawful harassment, as does the Age Discrimination in Employment Act and the Americans with Disabilities Act.

According to the Equal Employment Opportunity Commission (EEOC), harassment becomes illegal when:

Putting up with the harassment is a requirement of employment.
The harassment is so severe or ongoing that a “reasonable person” finds it abusive or hostile.

It’s also illegal to harass anyone already involved in a discrimination suit or EEOC complaint.

What does harassment look like?

Unfortunately, workers sometimes excuse away harassment because it doesn’t register as something clearly wrong or illegal, like a physical assault.

Harassment may take many forms, however, including:

Offensive jokes based on race, sex, national origin, or disability
Slurs and epithets
Intimidation
Physical threats, as well as actual assaults
The display of offensive pictures, signs, or symbols
Mockery of one’s protected characteristic

Harassment can be sexual, psychological, physical, verbal or take place entirely online. And because it’s pervasive and hostile, victims can include onlookers—employees who aren’t the intended targets of the abuse.

Unlike some other forms of discrimination, harassment doesn’t need to lead to a lost opportunity in order to qualify as illegal. It doesn’t require a missed promotion or a job loss. The workplace itself is the problem.

What should you do if you believe you’re being harassed?

Employers have an obligation to protect their employees from harassment. Ideally, this is preventative work, with clear messaging around conduct, manager training and open channels for reporting issues. When a problem arises, companies that value their people, public reputation and productivity take swift action.

If you believe you’re being harassed at work, it’s sometimes productive to directly ask your harasser to stop. Not everyone will feel comfortable doing this, however, or it won’t be effective. Regardless, your next step is to put your concerns in writing and share them with HR. Aim for clarity here—be concise, polite and make note of the protected characteristics your harasser has targeted.

What actions should you expect from your employer?

Employers are liable for the behavior of employees, contractors or visitors if they know about harassment and choose not to act. They’re liable for the behavior of supervisors if the supervisors create a hostile environment or exert a negative influence on the career of the person being harassed.

Your employer should act quickly and keep you updated on progress. If HR suggests corrective opportunities, accept them or clearly voice why you feel they could expose you to further harassment. Employers can sometimes defend themselves against harassment claims if they argue the accuser didn’t work cooperatively.

Of course, if your employer responds with hostility—a demotion, for example, poor performance reviews or a dismissal—you may have a retaliation suit. While it’s sometimes challenging to prove harassment, retaliation is often quite clear. Again, it’s helpful to maintain records of your attempts to resolve the problem, as well as notes on the harasser’s actions and your own performance reviews.

A Georgia employment lawyer can help determine if you have a possible claim with the Equal Employment Opportunity Commission or the Georgia Commission on Equal Opportunity. No one should feel unsafe or abused at work. While career mobility and advancement are undeniably important, so is advocating for a safe and healthy work environment.

Contact a Decatur employment lawyer today

At Radford & Keebaugh, we’re open and up front with our clients. We’ll take a look at your situation and give you our honest opinion. Our goal is to help you end harassment and move forward in your career. Contact us to talk over your situation.

Is She-Hulk the victim of employment discrimination?

Jenn Walters a.k.a. She Hulk in her legal attire. — An excellent female lawyer fired for being green, and for being liked too much by juries? Highly suspicious.

In Episode 2, Season 1 of the popular Disney + series “She Hulk: Attorney-At-Law,” our hero, Jennifer Walters, is terminated from her job as an Assistant District Attorney after she is infected with gamma radiation and develops the powers of a Hulk. The DA’s Office’s rationale for Jenn’s termination is a shaky one–a case where Walters is lead counsel is declared a mistrial after she saves the jurors from a super-villain and the judge decides they will be biased in her favor. After she is canned by the DA, she applies for numerous positions at private law firms, only to be rejected time and time again.

The obvious question is–why? Walters is a great lawyer and, beyond that, is beloved as a super-hero by the community. So, why are her prospects so slim? Is she the victim of employment discrimination?

Legally speaking, the answer may be yes. Two laws are at stake here.

First is Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the “based on race, color, religion, sex and national origin.” Jenn Walters is the only green member of the bar, and she can’t get a job despite her immense qualifications. While there is little precedent for a case of discrimination on the basis of such a non-traditional color, She-Hulk presents a strong case–it wasn’t until she turned green that her prospects for employment narrowed.

As employment discrimination attorneys, we would also consider whether there was discrimination on the basis of sex here. Women are still under-represented in the legal profession. If Jenn Walters came to our office, we would ask questions such as: have there been any male ADA’s whose cases have resulted in mistrials? Were they summarily dismissed from the job? Would you terminate Captain America, Iron Man, or a male superhero on the basis that jurors just liked them too much? To terminate one of your few female attorneys, on such dubious grounds, is inherently suspicious.

The second law applicable here is the Americans with Disabilities Act (ADA), which prohibits employment discrimination against any “qualified person with a disability.”

Jenn Walters begins to turn green as she transforms into the Hulk. — Transforming into the Hulk is not a pleasant experience.

A “disability” is defined by the law as a physical or mental impairment that substantially limits one or more major life activities or major bodily functions. It would seem at first blush that a superhuman, whose physical abilities are enhanced, rather than limited, would not qualify under the law. However, we must dig deeper into the statute.

“Major life activities” under the law include: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

“Major bodily functions” under the law include: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

“Normal cell growth” is an obvious one here, as the gamma radiation to which the Hulks were exposed causes their cells to grow massively and suddenly in size–hardly “normal.”

Beyond that, however, we have to consider the negative side effects of Hulking out. In addition to creating super-strength, the Hulk transformation can cause negative side effects, include sudden mood changes and physical pain. In other words, the experience of becoming a Hulk is a physically and mentally challenging one. (For more, see “10 Harsh Realities of Being the Hulk.”)

According to Science World, exposure to gamma radiation–the source of the Hulks’ power–causes numerous side effects, including “mak[ing] people sick with headaches, fatigue or nausea. It can also cause skin reddening and destroy bone marrow cells and the cells lining the gut.”

In a nutshell, She-Hulk has numerous valid claims for employment discrimination. If she contacted our office regarding her legal rights, we would certainly look at her case closely, and we would be glad to have her as a client.

If you enjoyed this post, you might also enjoy Is Matt Murdock an Ethical Lawyer?

Federal Court of Appeals rules in favor of disabled veteran in parking accommodations case

In the case of Pamela Wilson v. U.S. Department of Veterans Affairs, a disabled veteran employed by the VA was denied permission to park on-site at the Agency’s Atlanta, Georgia offices on Clairmont Rd., an accommodation she sought to address mobility impairments. The district court denied Ms. Wilson’s claims under the ADA. Represented by the attorneys of Radford & Keebaugh, LLC, Ms. Wilson appealed to the 11th Circuit U.S. Court of Appeals. Today, the Court of Appeals ruled in favor of Ms. Wilson on her failure-to-accommodate claims, reversing the district court’s order.

The 11th Circuit’s order is here: 11th Circuit Order – Wilson v. VA

You can listen to R&K attorney James Radford’s presentation at oral argument before the Eleventh Circuit here:

Additional detail on the case:

Ms. Wilson is a service-connected military veteran who suffers from chronic degenerative disc disease, spinal stenosis, facet joint disease, multiple herniated discs, and partial paralysis in both feet. Her disabilities cause functional impairments to her ability to walk, stand, and bend. In February 2009, she was hired as a probationary Veteran Claims Examiner (“VCE”) for the Education Division of the Department of Veterans Affairs (“Defendant” or “VA”). Her work site was the VA Regional Office (“VARO”) in Decatur, Georgia. There was an on- site parking deck at VARO.

However, probationary employees were told not to park there. Instead, they were told to park in an off-site deck, nearly one mile from the work site, and take a shuttle or walk to the VARO. Ms. Wilson could not physically walk the distance, and the shuttle was often not available when she needed it. It was difficult for her to board, and she would often have to stand because it was so crowded. In the first several months of her employment, Ms. Wilson made numerous requests for permission to park on site. Her supervisors made no effort to assess the reasonableness of her requests, which they summarily denied.

In order to get to her work site, Ms. Wilson attempted to park in designated handicap spots on-site, or elsewhere in the on-site parking deck. Despite knowing that she had requested parking accommodations (and likely because of it), her employer issued disciplinary citations each time she parked on site. Only after Ms. Wilson filed an equal employment opportunity (EEO) complaint did her supervisors request medical documentation related to her requests. Defendant ultimately terminated Ms. Wilson for “unacceptable conduct and unacceptable performance.” The documentary and testimonial evidence demonstrates that the dispositive “unacceptable” conduct was Ms. Wilson’s use of on-site parking. In her lawsuit, Ms. Wilson alleged that she was terminated for her attempt to accommodate her disability when the employer refused.