Tag Archives: FMLA

Pregnancy Discrimination Act

Pregnant Pause — Bosses’ Blasé Response Helps Discrimination Claim Survive

When Jennifer Martin emailed her boss at Tall Brown Dog, LLC, in 2015 to tell him that she was pregnant and needed to take a sick day, his response was less than congratulatory.

“OK,” he said without further comment, and then shifted directly into a discussion about his plan for her to increase her sales call activity.

Soon thereafter, she told the CEO of the company about her pregnancy, and he also responded as if channeling Spock.  He noted that “people have been pregnant here before,” and then “got very stoic, you know, and walked away,” according to Martin.

Such cold responses might be seen by some as simply the hyper-business-minded focus of small company managers or the social ineptitude of workaholics, but a federal judge in Michigan found that such non-supportive reactions could be interpreted by a jury as evidence of pregnancy discrimination against Martin, who was fired from her job days later.

Her bosses’ “reaction to Martin’s telling him that she was pregnant again (not congratulating her or acknowledging it in his response, and then moving on to discuss performance issues) could be viewed as suspect,” Judge Sean Cox wrote in his opinion in Martin v. Tall Brown Dog, LLC, denying summary judgment.

The case illustrates two basic truths:

  • Supervisors should never forget to be human beings in dealing with their subordinates – employees should be supported when they announce big news like pregnancies, or suffer health problems personally or in their families. Some supervisors feel paralyzed with fear about legal liability when issues like this arise.  Training from human resources or legal can help managers learn that complying with the law does not mean acting like unfeeling robots.
  • Pregnant employees are sympathetic plaintiffs. Woe to the company that has to explain to a jury why it was so harsh and unsupportive to an expectant mother.  It will be interesting to see whether this case settles or is tried to a verdict.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Americans with Disabilities Act, EEOC, Family and Medical Leave Act, FMLA, Pregnancy Discrimination Act

EEOC Gives Birth to Pregnancy Rules – Father Unknown.

In case you missed it, the U.S. Equal Employment Opportunity Commission (EEOC) has issued 40-plus pages of new guidance on pregnancy discrimination and related issues, including a fact sheet and Q&A guide. See http://www.eeoc.gov/laws/types/pregnancy_guidance.cfm.

No new law, Executive Order or court decision spawned these publications, nor do they create any new laws. But the guidance does illustrate that the EEOC has made pregnancy discrimination a top priority. The guidance also helps employers address common pregnancy-related workplace issues, and the overlapping coverage of the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and laws relating to lactation breaks and working parents.

Regardless of whether you read the EEOC guidance, think about your mother and do the right thing: treat pregnant workers fairly and equally in all respects.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Family and Medical Leave Act, FMLA

Motivational coach or FMLA violator – you decide.

If a “mediocre” employee tells his boss that he is experiencing flu-like symptoms and then submits a doctor’s note stating that he needs to take a month off from work to recover from a virus, can the employee’s boss tell the employee to “just push through it” and that he “could not afford to take off an entire month”?

What if the boss explains that his remarks were simply sports talk designed to motivate the employee — a former football player — and he added the comment, “you don’t get to sit on the bench while the rest of the team is out there and you’re resting”?

Someone call a time-out, please.

As you probably guessed, if an employee is eligible for leave under the Family and Medical Leave Act (FMLA), then such responses could constitute unlawful interference with the employee’s rights, as a federal court in Florida ruled last month in Brown v. Lassiter-Ware, Inc., from which the comments above are taken. Scoffing aside, the boss at issue here was no doubt trying to do the right thing for his company and motivate the employee to work harder and produce more sales. But it is equally clear the boss was ignorant of the employee’s rights under the FMLA, and thought it acceptable to treat a medical issue like a performance concern.

The case serves as a helpful reminder that (1) all managers should be trained about the basics of the FMLA and its legal protections; and (2) managers should not be handling medical leave issues, and instead should be required to direct such situations to the appropriate person in human resources or benefits.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Family and Medical Leave Act, FMLA, I-9 Form, U.S. Department of Labor, United States Citizenship and Immigration Service

New Forms for FMLA and Immigration.

Last week was a blockbuster when it comes to new government forms and notices relating to employment.

First, the U.S. Department of Labor has issued final regulations and an updated poster for the Family and Medical Leave Act (FMLA), incorporating recent changes in the law, relating primarily to seldom-used military caregiver leave for a veteran, qualifying exigency leave for parental care and job-protected leave for airline personnel and flight crews. The poster is available here and every covered employer is now required to post the new notice, either physically or on the company intranet.

Second, the United States Citizenship and Immigration Service has issued a new I-9 form (linked here at new Two Page I-9) that all employers must use (with a 60-day grace period that started March 8, 2013).

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Facebook, Family and Medical Leave Act, FMLA, Social Media

Facebook and FMLA – No Longer Friends.

This one I had to share: Carol Lineberry, a nurse in Michigan, went out on Family and Medical Leave Act (FMLA) leave, asserting she could not walk or stand for extended periods and could not lift more than 5-10 pounds due to “excruciating” back pain.

Nevertheless, while out on leave she decided to take a pre-planned, pre-paid family vacation to Mexico, with her doctor’s approval, claiming she had to use a wheelchair while traveling.

The gig was up when coworkers discovered photos posted on Facebook, including ones of her carrying her two 15-pound-plus baby grandchildren in her arms. The employer fired her after confronting her with the photos, and she admitted to lying about using wheelchairs on her trip. The court upheld the firing as not related to the employee’s exercise of FMLA rights.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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