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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” ;


  • 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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The Culinary Union Faces Its Biggest Test as Coronavirus Shuts Down Vegas

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There may be no more vivid illustration of the economic havoc being wreaked by the coronavirus than the rapid shutdown of the Las Vegas strip. What was a booming tourist destination a week ago is now in the process of becoming a locked down row of empty buildings. For the Culinary Union, whose 60,000 members comprise virtually the entire Las Vegas casino industry, this is the equivalent of a nuclear bomb.

In just the past two days, MGM Resorts, which operates 10 major properties on the Strip, has announced that it is closing all of them indefinitely; Wynn Resorts has announced it is closing its two properties for at least two weeks; and Caesar’s, another major operator, has begun layoffs. With travel grinding to a halt and America hunkering indoors, it is likely only a short matter of time before every casino and resort in Las Vegas is empty, a situation even worse than the aftermath of the 2008 financial crisis.

The Culinary Union, which just weeks ago was being feted and flattered by Democratic presidential candidates in town for the Nevada caucus, will now be tested by the rapid furloughs and layoffs of what will amount to a large portion of their working membership.

In an update sent to members late last week, the union said that it was holding “emergency negotiation sessions” with all of its employers, seeking five paid sick leave days, paid leave for those in quarantine, enhanced cleaning standards, and leaves of absences on request. Some of those asks will become moot as properties shut down. Culinary Union spokesperson Bethany Khan told In These Times that the union has negotiated up to six months of paid healthcare benefits for workers who are laid off.

Yesterday, the union told members that the board of the Culinary Health Fund, the union-run healthcare provider for more than 125,000 members and their families, will be extending coverage for those who are laid off or have had their hours cut, and will not impose copays. The Health Fund also told members that all testing for the coronavirus will be covered at no cost (although the Fund’s website now prominently notes that “The Culinary Health Center currently does not have the ability to test for the Coronavirus,” and that the emergency room is the only place people can currently be tested.)

Unlike former crises like 9/11 and the Great Recession, the coronavirus shutdowns are not only economic, but also tinged with the further uncertainty of an unfolding pandemic. That means that the shutdowns and layoffs in Las Vegas could persist even after the virus itself comes under control, due to the economic fallout, or even after economic recovery measures have been taken, if the virus itself is still raging. There is no way to say when business might return.

The Culinary Union became a union role model by building wall-to-wall power in a one-industry town. Now that that industry is facing what could become a total temporary collapse, the union’s ability to function as a social safety net will be tested like never before. Last month, every Democratic politician in America was competing to prove that they supported the union and its members more than anyone else. Now, they will get a chance to prove it.

Even Culinary Union members who have not been laid off are facing their own hazards. One union worker at a property on the Las Vegas strip that is still open told In These Times that they are now caught between the fear of losing a job, or losing their health. “It’s a petri dish.”

This article was originally published at In These Times on March 16, 2020. Reprinted with permission. 

About the Author: Hamilton Nolan is a labor reporting fellow at In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. You can reach him at Hamilton@InTheseTimes.com.

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Kamala Harris goes big and bold with proposal for six months of paid family leave

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Sen. Kamala Harris is offering up an expansive new paid family leave proposal. Harris had previously co-sponsored the FAMILY Act, which would provide three months of paid family leave—but now she’s calling for six months. Harris’ plan also calls for families with incomes under $75,000 to get full income replacement, with higher earners getting a lower percentage, while the FAMILY Act provides up to 66%.

Harris’ plan would apply not just to new parents for parental leave, but also to people needing time to care for older children or other family members. Coverage is focusing on Harris not spelling out to the last dollar how the plan would be paid for, but you know what? It’s not that freaking hard to find ways to raise taxes on wealthy people and corporations, especially after Republicans slashed those taxes. (Vox reports, “Harris’s team says funding would come from raising payroll taxes, corporate taxes, and income taxes on the top 1 percent of income earners.”)

This is the kind of policy that basically every other major industrialized nation has, while U.S. politics is built around the notion—backed up by the media—that we can’t afford it. Vast majorities of voters support paid family leave or parental leave or similar policies. So yes, Harris is being bold by the standards of how major politicians and pundits talk, but as a policy, it’s proven worldwide—proven to work for children’s health, women’s ability to stay in the workplace, and gender equality. Getting there will be a fight, particularly as any such plan would have to go through Congress, but good for her for not starting with a compromise plan.

This article was originally published at Daily Kos on October 7, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor at Daily Kos editor since December 2006. Full-time staff since 2011, currently assistant managing editor.

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When It Comes to Bereavement Leave, the U.S. Is Unspeakably Cruel

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Image result for Julianne TvetenOn March 19, 2018, Cindy Christensen took her husband, who had suddenly fallen ill, to the emergency room. Within one or two days, Christensen estimates, her husband was diagnosed with lymphoma. He was promptly transferred to a hospital that could provide more specialized treatment.

At the time, Christensen had been a unionized production worker at a Freudenberg-NOK Sealing Technologies plant in Necedah, Wisconsin, for over 30 years. Before the diagnosis, she knew she’d have to be available during her husband’s hospital stay, and she arranged to use paid time off she’d accumulated. Shortly after the diagnosis, she began to consider the arrangements she’d have to make with her employer while her husband received treatment.

Christensen says she filed a request for unpaid leave through the Family and Medical Leave Act (FMLA), thinking she’d use the time to be with her husband for chemotherapy treatments and other medical appointments after she exhausted her paid leave. The FMLA of 1993 guarantees 12 workweeks of “unpaid, job-protected” leave in a 12-month period for family-related caretaking matters for eligible employees. In Wisconsin, employees qualify if they’ve worked for an organization for at least 52 consecutive weeks and for at least 1,000 hours in the preceding 52-week period; that organization must also employ at least 50 permanent staff members in order for workers to qualify.

“In that week’s time, my husband got worse and worse,” the now-retired Christensen tells In These Times. “He developed sepsis, and his organs shut down.” On March 26, 2018 he died.  She says she canceled the FMLA leave, finding it no longer necessary and fearing it would entail a slog of paperwork and phone calls that would aggravate her distress.

In the wake of her husband’s death, Christensen says she was given three days’ paid bereavement leave, per her contract under the United Electrical, Radio, and Machine Workers of America (UE), with Good Friday, a paid holiday, following on March 30. She estimates she missed two additional days that weren’t covered by paid leave; each of these days resulted in disciplinary “points.” Reaching a certain number of points, she explains, would be grounds for firing. Christensen says she returned to work the following Wednesday, after seven days off.

“I was very close to losing my job,” she tells In These Times. “When things like this happen, you would like to take some time off. There’s so much stuff that you have to do. I would’ve liked to have taken more time off, but [Freudenberg-NOK] told me that I could not, unless I wanted to use the Family and Medical Leave Act,” she says.

Christensen hoped, as an employee of over 30 years, she could devise an alternative with Freudenberg-NOK, in the form of unpaid personal leave of approximately three days. The company had given unpaid leave previously to grieving employees, she says. To Christensen’s surprise, she recounts, the company denied her request, explaining that a broken water heater would warrant such leave, but her husband’s sudden illness and death wouldn’t.

“My husband was gone within a week’s time, and that was just a shock in itself. We didn’t know he had cancer, then we found out, and a week later, he’s gone. That was a lot,” Christensen says. “I thought they [Freudenberg-NOK] were going to be more kind, but they weren’t. It was a battle…They were just nasty about it.”

No right to bereavement leave

Christensen’s ordeal offers a glimpse into the state of bereavement leave for workers in the United States.

Bereavement leave isn’t federally mandated for any workers; thus, it’s largely a matter of whether employers choose to provide it. According to the Department of Labor, the Fair Labor Standards Act, which sets standards for minimum wage, overtime pay, record keeping and youth employment, “does not require payment for time not worked, including attending a funeral.” Laws vary by state: Oregon is the only U.S. state to legally require bereavement leave for qualifying employees, though said leave can be unpaid. Meanwhile, some states, such as California, legally require paid bereavement leave for certain public-sector workers, such as state employees.

The extent to which bereavement leave is available is largely limited to the attendance and, to some extent, the arrangement of a memorial service for a loved one. This informs the length of bereavement leave given to workers: Across the private sector, paid bereavement leave typically spans three to five days for full-time employees following the loss of an immediate family member, and one day following the loss of an extended family member or close friend, when it’s offered.

As of 2012, only 60% of private-sector workers were granted paid bereavement leave, per a report from the Bureau of Labor Statistics. Part-time employees were at a particular disadvantage: 29% received paid leave, compared with 71% of full-time employees. (More recent statistics aren’t available, nor are numbers for public-sector jobs.) Additionally, there are no bereavement-leave protections in place for workers in the informal and gig economies, such as nannies and Uber drivers; in most cases, this remains a matter of the employer’s jurisdiction.

In some major capitalist countries other than the U.S., bereavement leave is somewhat more substantial. In Canada, bereavement leave of at least three days is guaranteed for employees under the Canada Labour Code, with pay contingent on duration of employment. The U.K. classifies leave for an emergency involving a dependent as a right, but doesn’t require that it be paid, and doesn’t guarantee bereavement leave specifically. France mandates three days’ paid leave for the death of a spouse, partner or close relative, and five days for the death of a child for all workers via the French Labor Code.

In recent years, certain high-profile companies have broadened their bereavement leave policies. In 2017, Facebook augmented its bereavement-leave allowance to up to 20 days following the death of an immediate family member, and up to 10 for an extended family member. This happened shortly after the company’s COO, Sheryl Sandberg, was suddenlyn widowed.

MasterCard and SurveyMonkey followed suit with comparable policies, citing Facebook’s precedent.

At the time of these announcements, corporate  media  outlets  lavished these companies with praise, depicting their actions as beacons of hope for the U.S. labor landscape. What the press failed to ask, however, was why labor policies affecting the mental health of millions of workers should be so fragmented and piecemeal—and why the most generous versions of them should hinge upon the impulses of immensely wealthy executives.

The repercussions of trauma and loss

The answer to these questions, of course, is that these policies are the product of decades of neoliberal governance, wherein employers are given considerable latitude regarding labor practices. Employers benefit from the fact that universal paid bereavement leave isn’t federally mandated: This gives them more control over how much they invest in their workers, and further legal license to ignore their workers’ mental and physical health requirements. Thus, because federal labor law doesn’t guarantee protections for bereft workers, those workers’ wellbeing often suffers.

This was the case for Alex Blank Millard, who, several years ago, lost her father suddenly on the first day of her weeklong vacation from her job at an organization that provided no bereavement leave. (Millard chose not to name the organization.) Millard says that before her vacation, she routinely worked 60 to 70 hours per week and was commended for her job performance. When she returned to work grief-stricken, she was unable to concentrate.

“I spent the whole [vacation] week planning a memorial, dealing with family, figuring out logistics,” she tells In These Times. “I had to ask permission to take one extra day at the end of the week. I came back, and I was understandably a mess.” Millard wrote about her experience in 2018 for the now-defunct publication The Establishment.

Upon her return, Millard says she was expected to resume her regular workload and schedule. She subsequently requested additional unpaid leave. Her employer denied the request, she says, asserting that Millard simply had too much work to do, and placed her on a two-week “performance improvement plan” in order to more closely monitor her work. Millard, who’d worked there for three years, continued to seek leave over the course of two or three months, by her estimate.

“They wouldn’t [provide] that, and then I was fired,” she says. “I was fired for distraction[-related] things, like, ‘Took too long on a project.’”

An employer’s assumption that a worker can return to the workplace with their normal labor capacity intact, immediately following a life-altering form of trauma, is a testament to the necessity of bereavement leave, according to therapist and licensed clinical social worker Melissa Lopez, who specializes in grief counseling. “[Bereavement leave] is crucial. Grief is not only emotional; it’s mental, it’s physical, it’s spiritual in many ways. You’re trying to adjust to all these things, and work is asking you to not only show up, but be super productive. That causes more stress.”

Experiences such as Millard’s are symptomatic of a larger problem, according to therapist and mental-health educator Araya Baker. “I don’t think three to five days is sufficient. I think that dismisses the emotional repercussions of grief that an employee might be dealing with. Insufficient bereavement periods speak to the fact that capitalism has conditioned us to accept workplaces with a toxic, unhealthy culture,” he says.

“We romanticize the ability to repress pain and to forego help and rest,” Baker adds. “But we cannot always simply deactivate the part of our brains that cause our bodies and minds to grieve, simply because we’re at work.”

Lopez and Baker state that the individual grief process varies significantly depending on the mourner’s relationship with the deceased, cause of death and other factors. Research shows that acute grief, which commonly results shortly after the death of a loved one, can result in depression, trouble sleeping, feelings of anger and bitterness, anxiety, loss of appetite and general aches and pains—all of which can interfere with, and be exacerbated by—the need to perform a job.

And while there’s no quantifiable, universal grief period, research also shows that traumatic life events can require a recovery period of at least several weeks to months. A 2017 study in the American Journal of Hospice and Palliative Medicine, for example, found that older adults who had lost a spouse saw a reduction in their stress after an eight-week program of physical and mental care.

“There should definitely be a conversation about how to accommodate someone’s grief and how to help them adapt both outside of the workplace, but also in the context of professional space, because those things often go hand in hand,” says Baker.

Whose grief counts

In addition to failing to account for the psychological and physiological process of coping with loss, current standards for workplace bereavement leave policies also run the risk of hierarchizing grief and those who mourn.

For example, the standard three-day leave period for immediate family “is dismissive of folks, especially in the LGBTQ community, where a lot of folks have chosen family” because their families have rejected them, says Lopez.

She adds, “A lot of communities of color grow up with extended family. You have uncles and aunts and cousins, everybody who is as close, many times, as immediate family members. But if it’s not an immediate family member, you [often] don’t even get those three days. It completely dismisses the impact of grief for many people.”

These forms of discrimination also surface for workers who don’t have the ability to take extended unpaid leave. Even for those whose work allows unpaid leave to heal from loss, the lack of income disproportionately affects those living in financial precarity, effectively stratifying the grief process.

Thus, at a time when a reported 40% of people living in the U.S. can’t cover a $400 emergency expense, and another reported 40% are one paycheck away from poverty, unpaid leave presents many people with an unfair choice: Take time to grieve but lose desperately needed income, or return to work and repress the repercussions of an extremely raw trauma.

In either case, workers’ mental health suffers. “Financial stress can compound grief, and make the recovery itself traumatic,” says Baker.

“You’re not going to have low-income folks have the ability to take off that much time, even if it’s given to them [as unpaid leave],” says Lopez. “That’s just not a reality. That’s the sad part. Who gets to break down? Who gets to just check out?”

The union struggle for bereavement protections

For many unions, steady, paid bereavement leave is a necessary component of worker protections. Because unionized workers can influence their own labor conditions more than non-unionized workers can, unionized jobs are likelier to offer benefits like paid bereavement leave, sick leave and maternity leave.

UE argues that paid bereavement leave should be universally provided, rather than a matter of corporate discretion. “We believe that [bereavement leave] is a basic sign of respect for workers and their families,” General President Peter Knowlton tells In These Times. He adds that it “should be guaranteed by law to all workers and all types of families.”

According to UE Local 1107 vice president Joni Anderson, the union took a number of actions in solidarity with Christensen, a member of that chapter, amid the company’s defiant posturing. Christensen’s coworkers and fellow UE members circulated a petition calling for her disciplinary points to be revoked and her personal leave to be rendered. They posted signs that said “Stand With Cindy,” and wore t-shirts proclaiming “We Are Not Family”—a direct reference, Anderson says, to the company’s tendency to profess otherwise. Eventually, Anderson says, the union discovered that the company had quietly withdrawn Christensen’s disciplinary points.

In response to the situation with Christensen, a Freudenberg-NOK spokesperson tells In These Times that it offers three days of paid bereavement to all employees at its Necedah plant. “The former employee – who was employed by Freudenberg-NOK at the time of her loss – was given three days of paid bereavement leave. The company further agreed to provide the employee with additional time off through the use of personal days, vacation days and FMLA-sponsored leave, per its contractual agreement. We do not discuss the individual decisions made in these situations.”

Anderson adds that UE Local 1107 has sought to expand paid bereavement leave policies to account for extended family members such as aunts and uncles. Freudenberg-NOK has refused to concede, she says, permitting paid leave only for the loss of family members already designated in the contract. Anderson notes that the next round of negotiations is scheduled for November, during which she expects to bargain for personal leave.

The United Food and Commercial Workers (UFCW) have waged similar battles. According to Andrea Zinder, UFCW Local 324 secretary-treasurer and president-elect of the UFCW Western States Council, paid bereavement leave between three and five days has been included in her local’s grocery workers’ contracts since at least 1984. Zinder tells In These Times that the local had just closed negotiations with Vons, Albertsons and Ralphs. Previously, employees were granted what was termed “funeral leave” on the condition that they produce proof of attendance of the service, such as a funeral card or program.

The policy soon proved inherently exclusionary and punitive. “A lot of times, there aren’t funerals,” Zinder says. “There are other ways of celebrating [someone’s life]. When there wasn’t an actual funeral, we sometimes ran into problems getting pay. We just changed the reference of ‘funeral leave’ to ‘bereavement leave’ in our retail food contract.”

“You get a hardcore employer, and you get a problem,” she adds. “When there’s no funeral, what do you do?” (Vons, Albertsons, and Ralphs have not responded to In These Times’ request for comment.)

The UFCW has also bargained for increased flexibility regarding timeframe of leave. Zinder says that within recent years, the union had modified certain contracts to allow for leave to be taken any time within a 14-day period.

Unions such as the UE and UFCW offer a formidable infrastructure through which to recognize and establish bereavement leave as a worker’s right. Still, amid the threat of corporate adversaries and a long history of policymaking in their favor, the struggle to secure bereavement leave continues.

“I think that if we truly care about workers, which I’m not sure that we do as a society, but if we want to truly care about workers, bereavement leave is essential,” says Millard. “We have trauma, trauma affects people, people are workers, and yet we’re not doing what we need to do to get them where they need to be.”

Baker adds, “While educating employers and lawmakers about grief is the obvious way to bring about widespread bereavement policy reform, it will take more than mental health advocacy for this idea to catch on. We need to be able to recognize exploitative expectations of workers.”

This article originally appeared on Inthesetimes.com on September 23, 2019.  Reprinted with permission.

About the Author: Julianne Tveten writes about technology, labor, and culture, among other topics. Her work has appeared in The Nation, Capital & Main, KPFK Pacifica Radio, and elsewhere.

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Can an employee on FMLA leave from work attend a night concert?

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A federal court in Texas has dismissed a claim of FMLA discrimination and retaliation by a woman who was fired after attending a Beyoncé concert while she was on personal medical leave. The railroad employee claimed that the company interfered with her rights under the Family and Medical Leave Act and illegally terminated her. The employer countered that she was fired for abusing the leave policy and failing to communicate with her managers per FMLA rules.

The Northern District of Texas judge shut down the woman’s claim with Beyoncé-like finality. But it raises the legitimate question of whether people on medical leave or family leave are entitled to enjoyment of life or expected to sit at home and recuperate in stoic solitude.

Employee’s actions during leave raised eyebrows

The Texas case, Jackson v. BNSF, involved a woman who was under pressure at work. Shortly after management placed her on a performance improvement plan, Ms. Jackson notified her boss that she was taking disability leave for an unspecified medical condition.

The Family and Medical Leave Act allows up to 12 weeks of unpaid leave for a personal health crisis or to care for a seriously ill family member. The employer is not entitled to full details or veto power. But the employer is entitled to ask for status updates and a schedule of when the employee expects to be in and out of the office.

At the beginning of her leave, Ms. Jackson was unresponsive to repeated inquiries about business matters, according to the court documents. A few weeks later, Jackson was spotted by a co-worker at the music concert. In fact, Jackson was watching Beyoncé from the employer’s corporate suite at the stadium.

The employer suspected her leave was an abuse of FMLA policy if not downright fraudulent. When asked to explain her presence at the concert, she did not respond. When pressed again, she emailed that her doctor had not cleared her to discuss work. When given an ultimatum to check in with her manager by a cutoff date, she did not respond. The company moved to terminate, and Jackson later filed suit for FMLA violations and retaliatory discharge.

What is the expectation of employees under FMLA leave?

The employee must give 30-day notice if the leave is foreseeable, or notice “as soon as practicable” if unforeseen. The employee must give the employer sufficient explanation of the nature of the leave. In the case above, Ms. Jackson told her bosses she was under a doctor’s care and was “not well to return to work.” A doctor could conceivably back up such a scenario.

By dismissing Jackson’s claim, the federal judge skirted the question of whether an employee who was not well enough to work could be well enough to attend a concert. Her disability leave, according to court documents, was ostensibly related to a “mental breakdown” over her workload and performance review. Returning to the workplace might have triggered anxieties that after-hours entertainment would not.

People on medical leave or family leave are not precluded from buying groceries, going to church, attending soccer games or otherwise “living their life.” But what about taking a long-planned family vacation while on leave from work? Or continuing with Wednesday night bowling league as a respite from caring for Mom during the day? Or seizing the golden opportunity to see “Queen Bey” from a luxury suite while on disability leave.

Such gray areas may merit legal advice from an employment law attorney. But one moral of the story for anyone on FMLA leave is to stay in communication with the employer. Once that dialogue is closed, the relationship may become highly adversarial.

This article was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 9, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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The Issue of Paid Family Leave Just Got Some New York Size Momentum

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GELClogoOn April 4, New York State passed what is being hailed as the most comprehensive and generous paid family leave law in the country.  The Paid Family Leave Insurance Act (A. 3870 / S. 3004) (“PFLIA”) will provide workers in New York State with up to 12 weeks of paid leave per year, to bond with a new child, or to care for a seriously ill family member.  For military families, the leave time can be used to address legal, financial and childcare issues.  Notably, unlike the federal Family Medical Leave Act (“FMLA”), coverage does not include taking care of an employee’s own medial condition.  That means, if unrelated to childbirth, employees would still need to seek time off under New York State’s Temporary Disability Insurance (“TDI”) program.

Beginning in 2018, all full and part-time employees who have been working at their jobs for at least six months will be eligible for eight weeks of paid leave up to one-half of their weekly wages, capped at 50% of the New York Statewide Average Weekly Wage (“SAWW”).  These payments will gradually phase in over four years until 2021 when workers will be entitled to 12 weeks of leave, for benefits up to two-thirds of their weekly salary, capped at a maximum of 67% of the SAWW.

The current SAWW is $1,266.44, through June 2016 (with predicted increases each year).  So, the benefit will be robust.  For instance, if an employee received family leave benefits today that would mean s/he could receive up to $633.22 per week; or $844.29 if the two-thirds rate was in effect.  As compared with maximum benefits workers in New York are eligible to receive under its Temporary Disability Insurance (“TDI”) program that’s a big improvement.  That program caps recipient benefits at a mere $170 per week.  Until now, TDI was the only financial recourse postpartum women in New York were eligible for – unless their employers wanted to be more generous (sometimes true for large corporations, rarely for smaller employers).  Although, beginning in 2018, women still would not be entitled to paid family leave in order to recover from their own childbirth recovery, they would be eligible to receive paid family leave to bond with their child at a vastly improved weekly wage replacement rate.

The PFLIA program is a fully employee-funded program, meaning, unlike several other states and localities, employers will not have to contribute to the cost.  Rather, employees will pay into a state sponsored insurance program and payments to workers will be paid out through this program.  These contributions will start at as little as 45 cents per week when the law goes into effect in 2018.  Thereafter, New York’s Superintendent of Financial Services will analyze what amount of funding the program needs based on the cost per worker of providing paid leave.  While the total per employee contribution remains unknown, an important premise behind the legislation is that employee contributions should represent a very small deduction from each employee’s weekly paycheck.  It is estimated that by year four that deduction will be 88 cents per week.

Significantly, paid leave is protected leave.  All qualified employees who take paid family leave will be entitled to return to their jobs.  If employers violate the law, employees will be entitled to reinstatement and back pay.  Unfortunately, there is no private right of action to go into Court.  Claims will have to be administered through the New York Worker’s Compensation Board which handles violations of the TDI law.

Several other states are now looking to follow New York’s lead.  Ohio just introduced a 12-week paid leave bill the same week New York’s law was signed.  Connecticut has introduced a bill as well that would entitle employees to be compensated up to $1,000 a week.  The proposed bill would cover employers with as little as two employees.

In 20 states, legislation has either been introduced or is being actively pursued.  Each of these proposed bills and programs strikes a different balance.  Some states would provide fully employer-funded paid programs, while others base their programs on models similar to that used in New York, making their proposed paid family leave benefits solely through employee contributions, and some are a mix of both.  What is covered under each of these proposed laws varies too.  Some cover all employers, while others limit coverage to larger employers, although many require less than the FMLA does with 50 or more employees as a basis for coverage.

These laws undoubtedly will offer a new generation of workers the family-job balance that previous generations did not have.  Not only will employees be less likely to face devastating economic choices when they decide to have children or need to care for a loved one, but as studies show, when family leave is paid, women are far less likely to be forced out of or choose to opt out of the workforce when having children.  This in turn will decrease a persistent wage gap between men and women who have children.  In addition, further studies document that men are far more likely to take family leave when it is paid, thereby bringing men and women closer to wage parity and more likely to share domestic responsibilities at home.

Nonetheless, as evidenced by this patchwork of laws and proposed bills, paid family leave – some, all or none – creates inequality among American workers when states offer inconsistent opportunities for work-life balance.  Even worse, many states still have no paid family leave laws on their books, and do not seem close to passing such legislation in the near future.  This result strongly emphasizes the need for national legislation that would allow us to join the rest of the industrialized world.  But as a start, we New Yorkers’ are proud of where our efforts have led – to the strongest, broadest, most generous paid family leave law in the country!  This law will make all the difference to the estimated 6.9 million workers in this state.

For more information about what you can do to support and/or expand family leave laws in your state check out what your legislators are doing and join family leave campaigns.  Or, contact us at the Gender Equality Law Center.

Allegra L. Fishel is the founder and Executive Director of the Gender Equality Law Center (“GELC”), a 501(c)(3) legal and advocacy center.  GELC’s mission is to advance laws and policies that promote gender equality in all spheres of public and private life.

Lauren T. Betters is a 2015 law school graduate of Northeastern Law School and GELC’s first Law Fellow.

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D.C. Councilmembers To Introduce Bill Guaranteeing 16 Weeks Of Paid Family Leave

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Bryce CovertOn Tuesday, seven city councilmembers in the District of Columbia will introduce a paid family leave bill that would create the most progressive system in the country and serve as a model for other cities that might be interested in paid leave. If it eventually gets passed and signed into law, it would be the first city-level program in the country.

The bill, spearheaded by Councilmembers David Grosso (I) and Elissa Silverman (I), would pay out 16 weeks of wages during a leave for a new baby or to care for a sick family member for those who both live in the District as well as those who live elsewhere but work there. That’s in line with the district’s current 16 weeks of unpaid but job guaranteed leave, but more generous than the 12 weeks in Congressional Democrats’ paid family leave bill and what’s offered in the three states that have implemented paid leave programs, which range from six to eight weeks.

Workers would also be able to avail themselves of a generous benefit. They would get fully reimbursed for the first $1,000 of their weekly pay, and then if they make more than that would get 50 percent of the next $1,000. The federal leave bill that’s been introduced by Democratic lawmakers, for instance, only replaces two-thirds of workers’ income, capped at $1,000 a week, and the three states that have implemented paid family leave have similar policies. “For the lowest-wage workers and even those in the middle class, especially in jurisdictions with a very high cost of living like Washington, D.C., it’s very difficult to make ends meet on a salary, and it’s impossible to make ends meet on half of a salary,” explained Kitty Richards, who works on Councilmember Silverman’s staff and was involved with the paid family leave bill. “We’ve seen that low-wage workers really struggle to take leave that’s paid out at a low rate.”

The funding structure for the program would also look slightly different given some of the unique circumstances in D.C. The district can’t mandate what the federal government offers its employees, so workers who either reside outside of the District or those who work for the federal government will have to pay into the fund through a payroll tax. But all other employers within the district will also pay a small tax — probably around 1 percent — into the fund.

D.C. has already passed some policies near and dear to progressives’ hearts: it raised its minimum wage to $11.50 by 2016, passed paid sick leave in 2008 and then strengthened it in 2014, and guaranteed eight weeks of paid family leave for city government employees late last year. (Tuesday’s paid family leave bill will also propose extending city employees’ paid family leave to 16 weeks to match all other employees’.)

Those efforts, particularly paid leave for city employees, inspired Grosso to find a way to implement paid family leave for all workers in the area. “Always in the back of my mind was, ‘How can we extend this to the private sector as well?’” he said.

His quest got a boost last year when the Department of Labor awarded the district with a $96,000 grant to study implementing paid family leave. That money allowed D.C. to get an accurate read of the costs and benefits of implementing a program. It also helped propel the effort forward. “Grants from the federal government are creating momentum and excitement and policy expertise around the issue,” noted Richards.

They’ll need that momentum moving forward to make sure the bill becomes reality. After its introduction Tuesday morning, it will get referred to committee and then will come hearings and input before it actually gets a vote. At least four councilmembers have already signed onto the bill with Grosso and Silverman, but they’ll have to work to get everyone on board. “It’s definitely a marathon, not a sprint,” Silverman noted. “Getting to the introduction is kind of like getting to the half marathon mark.”

“The main issue is to make sure that what moves forward is a really strong bill, that we don’t just pass something but pass something that’s really strong,” said Rebecca Ennen, development and communications director at Jews United for Justice, a group that has been deeply involved in pushing the bill forward.

Then Mayor Muriel Bowser (D) would have to sign it — she’s believed to be supportive — and the fund would have to be set up and fully funded before any District residents can actually take paid leave. If things go quickly and smoothly, Grosso estimates that the bill could be on the mayor’s desk within six months and, if it were signed, residents could start taking leave a year later.

Success won’t just mean guaranteeing benefits for D.C. residents. Those involved hope that the bill and the program design can be replicated elsewhere. While three states have paid family leave, the U.S. is an outlier among nearly the entire world for not guaranteeing paid maternity leave and among developed countries for not guaranteeing paid paternity leave. “I think we have the opportunity to set a standard here in the District and be a model,” Silverman said.

Grosso agrees. “We’re hoping to bring national attention to this so we can be a model for other jurisdictions getting this done at the local level,” he noted. While the vast majority of paid sick leave bills have passed at the city level, all paid family leave programs have been statewide. But D.C.’s effort might inspire other cities to take it up.


This blog originally appeared at ThinkProgress.org on October 6, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.


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Carly Fiorina Thinks Corporations Should Be Able To Deny Paid Leave To New Mothers

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Bryce CovertAfter Jake Tapper, host of CNN’s State of the Union, asked Republican presidential candidate Carly Fiorina about Netflix’s announcement that it will offer a year of unlimited paid family leave, the former Hewlett Packard CEO said she opposes any requirement that employers offer their workers paid leave.

“I don’t think it’s the role of government to dictate to the private sector how to manage their businesses, especially when it’s pretty clear that the private sector, like Netflix…is doing the right thing because they know it helps them attract the right talent,” she said. “I’m not saying I oppose paid maternity leave. What I’m saying is I oppose the federal government mandating paid maternity leave to every company out there.”

But the vast majority of private sector employers don’t seem to agree that offering paid leave is the right thing to do. Only 12 percent of workers in the private sector get paid family leave from work. These benefits are also far more likely to be offered to higher-income, white collar workers and not to the low-income workers who may need it the most to be able to afford time off. Just 5 percent of the lowest-paid 25 percent of employees get paid family leave, compared to 21 percent of the highest 25 percent.

Fiorina noted that while she was at Hewlett Packard, the company offered paid maternity and paternity leave. Current online versions of its employee handbook only refer to “several leave opportunities to provide additional time when you need it, including [unpaid] Family and Medical (FMLA) Leave, state family leaves, [and] parental leave” without specifying how much leave employees might get. But in response to a New York Times inquiry in 2013, the company said new mothers get six weeks of full pay under a short-term disability plan with additional weeks at lower pay, while new fathers get just 10 days.

Netflix and other technology companies have made headlines for far more generous leave: Netflixannounced unlimited paid leave for the first year after the arrival of a child, while Google offersfive months and many others offer 17. But they are the exception to the norm. And without a requirement, leave policies will differ wildly from workplace to workplace.

The lack of a federal law requiring maternity and paternity leave makes the U.S. a lonely outlier on the world stage. It is one of just three countries among 185 that doesn’t guarantee new mothers paid time off, while another 70 include new fathers.

Three states have decided to enact their own policies: California, New Jersey, and Rhode Island. And the evidence from those experiments goes against Fiorina’s claim that it would be “ineffective” and “hypocritical” for government to mandate leave when it “hasn’t gotten its basic house in order.” In California, the vast majority of businesses report that the paid leave law had either a positive impact or none at all on profitability, employee performance, and productivity and it helped reduce turnover. In New Jersey, the majority of businesses also say that it hasn’t hurt their finances, while some saw similar benefits.

Paid family leave is generally found to keep women in the labor force and to expand it. The savings in turnover can come to an estimated $89 million a year for the country’s employers. But the lack of paid leave is one of the reasons that the country’s rate of women in the labor force is being far outpaced by other developed countries.

Fiorina has also come out against issues related to women’s equality in the past. She opposes the Paycheck Fairness Act, which is aimed at closing the gender wage gap, and blames the gap on unions and government bureaucracies.

“This blog originally appeared at ThinkProgress.org on August 10, 2015. Reprinted with permission.”

Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

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