Under the federal Family and Medical Leave Act, workers at most businesses are entitled to take up to 12 weeks of unpaid leave annually to cope with an illness, care for a sick relative or bond with a newborn baby or adopted child.
The problem, however, is that far too many companies are retaliating against workers for taking this time. These employees are being denied raises and promotions, re-assigned to less desirable positions and sometimes even laid off or fired.
This is despite the fact that employers are barred from retaliating against workers who take FMLA. It now seems workers are taking it upon themselves to become more educated about their rights under the statute, first enacted in 1993. The number of lawsuits alleging FMLA retaliation has spiked in recent years, according to the most recent figures released by the Administrative Office of the U.S. Courts.
The agency reported in 2012 that 291 lawsuits were filed by workers alleging employer retaliation for employee use of FMLA. In 2013, that figure soared to 877 – an increase of more than 200 percent.
While the number of family leave lawsuits is still much smaller than the approximately 15,000 cases filed last year for alleged employer discrimination on the basis of sex, disability or race, this class of litigation is the only one that saw a sharp rise in claims.
Part of this may have to do with the fact that the law requires a lesser burden of proof than what is required for other types of employment lawsuits. For example, in a case alleging racial discrimination, a worker would usually need to show the employer acted intentionally. FMLA cases are different because the worker need only prove the employer somehow deterred him or her from taking leave that was authorized or caused the worker to end the leave period early.
Workers who have been retaliated against may be eligible to recover double the lost wages, plus double the cost of care for family members if the leave was denied. Punitive damages, however, are off the table. Still, plaintiffs who prevail in the case will have their legal tab covered by their employer as well.
Many employers have found it challenging to adhere to the law and make accommodations, particularly because there is no clear definition of what constitutes as a “serious health condition” that would qualify a candidate for leave. In some cases, it has been applied to allow intermittent time off for workers suffering from illnesses such as migraines or back pain. Forty percent of human resource officers surveyed in 2008 indicated the majority of request for FMLA were illegitimate.
Here’s what the law says that time may be used for:
- The birth of a child and to provide care to a baby within one year of birth (this goes for both mother and father);
- The placement with the worker of a child for adoption or foster care within one year of the placement;
- To care for a worker’s parent, child or spouse who is suffering from a serious health condition;
- A serious health condition suffered by the worker renders him or her unable to do the job;
- Any urgent need or demand arising out of the fact that the worker’s spouse, child or parent is on covered, active military duty.
The law doubles the amount of time available to care for an ailing, active-duty service member.
Employees who say these requests were improperly denied or that the employer forced them to return sooner than required, or otherwise retaliated, can not only seek compensation for lost wages and benefits, but also to be returned to a former post.
The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
More Workers File Family-Leave Lawsuits, Aug. 8, 2014, By Joe Palazzo, The Wall Street Journal
More Blog Entries:
New York Employment Discrimination Not Always Easily Recognizable, June 10, 2012, New York City FMLA Lawyer Blog