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How Does FMLA Work and What Should I Know About Hiring Minors for Seasonal Work?

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The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 workweeks of unpaid leave each year. In addition, employers must maintain employees’ group health benefits during the leave as if employees continued to work instead of taking leave. 

Also, employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

This article will look at some of the details of this important employment law.

What is FMLA? 

The FMLA is a federal law enacted in 1993 that entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons.

How does FMLA work?

Eligible employees are allowed to take 12 workweeks of leave in a 12-month period for any of the following reasons: 

  • The birth of a child and to care for the newborn within one year of birth;
  • The placement with the employee of a child for adoption or foster care and to care for that child within one year of placement;
  • To care for the employee’s spouse, child, or parent who’s experiencing a serious health condition;
  • An employee’s own serious health condition that makes him or her unable to perform the essential functions of his or her job;
  • Any qualifying emergency or urgent need stemming from the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” ;

or 

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury, or illness if the eligible employee is the servicemember’s spouse, child, parent, or next of kin (known as “military caregiver leave”).

Who’s Eligible for FMLA?

The eligibility requirements are the same for all employees, no matter the reason for the requested leave. There are four elements that an employee must satisfy to be eligible for FMLA. The employee must:

  1. Work for a covered employer (see below);
  2. Have worked for the employer for at least 12 months as of the date the FMLA leave is to begin;
  3. Have at least 1,250 hours of service for the employer during the 12-month period immediately prior to the date the FMLA leave is to begin; and 
  4. Work at a location where the employer employs at least 50 employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave.

To What Employers Does the FMLA apply?

The FMLA applies to all:

  • Public agencies, such as all local, state, and federal employers, and local education agencies (schools); and
  • Private sector employers who employ 50+ employees for at least 20 workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Can an Employer Deny FMLA? 

Yes, in some situations—mainly because the employer or the employer doe not meet the eligibility criteria.

An employer can deny FMLA leave for non-qualified events or for employees who aren’t covered. So, employees who work for a covered employer but don’t qualify for FMLA may be denied FMLA leave. Again, in order to qualify for benefits, an employee must be employed with the company for at least 12 months and worked for at least 1,250 hours during the 12 months prior to the leave. The employee must also work at a location with 50+ employees or with 50 employees within a 75-mile radius.

In addition, private sector employers aren’t required to provide FMLA benefits if they have fewer than 50 employees. As a result, an employee who would otherwise be eligible for FMLA can be denied if his or her employer isn’t required to offer the benefits. 

How Does the Law Protect Someone under the FMLA? 

The FMLA protects a covered employee from harassment, discrimination, or interference from employer for requesting time off. An employer is prohibited from interfering with, restraining, or denying the exercise of FMLA rights, retaliating against the employee for filing a complaint and cooperating with the U.S. Department of Labor Wage and Hour Division (WHD), or bringing private action to court.

In addition to this protection from any form of workplace retaliation or discrimination resulting from an employee’s leave, an employer is required under the FMLA to do the following:

  • Reinstate the employee to his or her same position or a comparable position when he or she returns to work after their leave; and
  • Maintain the employee’s group health benefits while they are on leave. 

An employer who doesn’t reinstate a returning employee is in violation of the FMLA and is liable for lost wages. If an employer cancels the employee’s benefits illegally while he or she is on FMLA leave, the employer may be required to pay for damages resulting from the lack of health care coverage. 

What Should I Know About Hiring Minors For Seasonal Work?

Employers should know that the U.S. Department of Labor allows children who are 14 or 15 years of age to be employed outside of school hours in a variety of non-manufacturing and non-hazardous jobs for limited periods of time and under specified conditions. Note that any work not specifically allowed for 14- and 15-year-olds, as listed in the Department’s child labor regulations, is strictly prohibited. 

However, youths who are 16 or 17 may be employed for unlimited hours in any occupation other than those declared hazardous by the Secretary of Labor. When a youth reaches the age of 18, he or she is no longer subject to the federal youth employment provisions.

Minors hired for seasonal work most likely would not be eligible for FMLA because the positions are seasonal in nature and would not satisfy the 12-month requirement.

About the Author: Kurt R. Mattson is the President of Union Legal Research. He has spent more than 30 years in the legal services industry as a research attorney, writer, editor, and marketer. 


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Working Away Their Childhoods: Young Farmworkers Robbed of Rights

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As kids around the country look forward to the start of summer break, it’s easy to forget that their mid-year vacation is actually curious relic of an earlier time, when children took time off to help out on the farm. Still, even in the post-industrial age, today’s farm sector continues to put kids to work, perpetuating one of the country’s last bastions of child labor.

It makes sense to employers: Kids make obedient field hands, their little fingers nimble enough to cull all those tiny berries with maximum efficiency. Moreover, the vast migrant labor force—largely Latino, impoverished and disenfranchised—is ripe for exploitation. But there’s a cost of doing this business, according to a new report from Human Rights Watch (HRW): disrupted schooling, safety hazards, and the threat of sexual assault, all factor into the opportunity cost of a lost childhood. (See video below.)

Photo courtesy Human Rights Watch
Photo courtesy Human Rights Watch

The extensive investigation reveals that child labor isn’t limited to Dickensian sweatshops in the “third world.” The federal labor laws that govern child farmworkers, moreover, don’t recognize that the agricultural sector has moved away from bucolic fields and toward modern-day plantation slavery.

Current U.S. regulations allow children as young as 12 to work on farms, and small farms have no minimum age if the child has parental permission. Toiling alongside their parents under brutal conditions, children are underpaid and exposed to injury and pesticide contamination. Young girls are “exceptionally vulnerable to sexual abuse.” For many, education and play time are impossible luxuries.

How many children work in U.S. fields each year? Due to the migratory and transient nature of the work, it’s a difficult question to answer, and data isn’t fresh; the HRW report notes that farmers in 2006 reported directly hiring 211,588 children under 18, and that nearly half a million children worked on their family’s farm that year. The total number toiling is likely much higher—the government estimates that 9 percent of all farmworkers hired in 2006 were under 18.

Child farm labor clusters in California, Florida, North Carolina, Texas, Oregon, and Washington State, though HRW stresses, “Virtually no state is without child labor in agriculture, and certainly no state fails to benefit from children’s farmwork, as the produce that is harvested and packed by youngsters’ hands may travel thousands of miles to grocery store shelves.” Even when subsidized by children’s wages, annual family incomes still hovered in the poverty range, “between $15,000 and $17,499″ on average, according to 2005-2006 data.

Though the Obama administration has vowed to tighten enforcement, employers can easily flout the already weak labor rules. Some children start working at six or seven, getting a head start on the lifetime of misery to which their parents are often condemned:

Children, like many adult farmworkers, typically earn far less than minimum wage, and their pay is often further cut because employers underreport hours and force them to spend their own money on tools, gloves, and drinking water that their employers should provide by law.

The impacts on children’s development are difficult to grasp.  Some of the youth interviewed reported regularly working from dawn till dusk, returning home utterly exhausted. But even then, said one girl, “I hated to sleep because sometimes all you dreamed of was working, thinking, ‘I need to be working.’” For a large portion of these workers, constant migration from site to site could lead to further social and emotional destabilization.

In an interview with HRW, a Michigan teen recalls, “[When I was 12] they gave me my first knife. Week after week I was cutting myself. Every week I had a new scar. My hands have a lot of stories.”

A mother reflected, “When you hear the children talk, you feel bad because you’ve taken a whole childhood away and you don’t realize it because you’re thinking about trying to make payments.”

About one-third of U.S.-born farmworkers (i.e. citizens) have dropped out of school—about four times the overall national rate—in large part because young people simply can’t complete their education as families shift from site to site. Federal support for migrant children’s education has reached only about half of the eligible population.

Stories like these abound, HRW reports, but the Department of Labor in 2009 “found only 36 cases of child labor violations involving 109 children in agriculture, constituting only 4 percent of all child labor cases that year. This number is not only astonishingly low, but also reflects a dramatic decline in overall enforcement of child labor laws from 2001.”

A proposed bill in Congress, the Children’s Act for Responsible Employment,would tighten regulations on child farm work and increase penalties for violations.

Yet beneath the day-to-day abuses these youth experience lies the economic structure of the food system, based on a byzantine regime of farm labor programs, an ample supply of migrants desperate for work, and the American consumer’s appetite for low prices at the checkout counter.

When viewed in light of the protests surrounding Arizona’s anti-immigrant law, these children represent all the reasons why criminalizing immigrants will do nothing to solve the crisis.

Many are U.S. citizens; many of their parents actually entered the country legally. Yet workers of all immigrant statuses are relegated to an employment system akin to indentured servitude. Child labor is the product of an immigration system that reduces families to a disposable workforce. For kids unable to contemplate a better life, their rights are the first to be thrown away.

*This post originally appeared in Working In These Times on May 7, 2010. Reprinted with permission.

About the Author: Michelle Chen’s work has appeared in Extra!, Legal Affairs, City Limits and Alternet, along with her self-published zine, cain. She also blogs at Racewire.org


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