At Work: Solutions for Employers & Employees

Has your employee asked for time off under the FMLA? The Third Circuit has made clear that firing that employee after the leave is requested but before it begins constitutes unlawful “retaliation” under the FMLA.

Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.

The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.

On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.

Continue reading "Employers: Take Care Before Firing an Employee who Has Requested FMLA Leave" »

Posted by Tiffanie Benfer at 12:28 PM | Permalink | Comments (0) | TrackBacks (0)

I’m seeing a trend. We seem to be getting more and more calls from employees who have lost their jobs while in the midst of treating for cancer, and from employers who are trying to figure out what to do about an employee with a serious illness.

Needless to say, employees whose employment is terminated during treatment have a particularly difficult time, especially if they are dependent on employer-provided health insurance. The question is difficult too for employers who want to stay within the bounds of the law, but cannot afford to keep on an employee whose performance is lacking.

The trend we’ve seen appears to be worldwide. The New York Times today discussed an analysis in the Journal of the American Medical Association, concluding that cancer survivors in the U.S. and Europe are 37 % more likely to be unemployed than their healthy peers.

http://www.nytimes.com/2009/02/18/health/18cancer.html

What are the rights of an employee with cancer? Under the Americans with Disabilities Amendments Act, it is clear that cancer is a covered “disability.” An employee cannot be fired simply because he or she has cancer. Likewise, an employee cannot be fired simply because he or she took leave under the FMLA.

Continue reading "Fighting Cancer and Discrimination Too" »

Posted by Tiffanie Benfer at 11:06 AM | Permalink | Comments (0) | TrackBacks (0)

It isn’t a newsflash to those of us who regularly deal with the EEOC: the federal agency charged with protecting Americans from discrimination is overworked, with a tremendous backlog of cases. The Washington Post reported Monday that because of increased claims and decrease in staff, the case backlog is now at 73,951 – up 35 % from a backlog of 54,970 a year ago.

http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020202452.html

This means that more and more cases are languishing in the EEOC. That’s a problem when it comes to getting to the truth behind a claim, because witnesses move away or forget what happened. In this climate, it is essential for both employees and employers to obtain independent legal counsel to move a case along, to secure witness statements, to conduct investigations, and -- most importantly -- to frame the issues for an overworked investigator.

Continue reading "EEOC Backlog Swells. What Does This Mean for Your Case In the EEOC?" »

Posted by Tiffanie Benfer at 03:34 PM | Permalink | Comments (0) | TrackBacks (0)

Happy New Year! Congress gave American workers a huge gift this year by amending the Americans with Disabilities Act. Those amendments, which sustantially increase the protections for disabled workers, go into effect today.

Since 1992, the Americans with Disabilities Act (ADA) has prohibited discrimination against the disabled. The Americans with Disabilities Act Amendment Act (ADA-AA), which goes into effect today -- January 1, 2009 -- represents the most significant change to employment law in years. The ADA-AA greatly expands the class of persons who may seek protection as “disabled” and therefore expands responsibilities – and potential liability – for employers.
Passage of the ADA-AA was a decisive victory for advocates of employees and the disabled. After a series of court decisions during the last 15 years had steadily narrowed the reach of the ADA, Congress stepped in with the ADA-AA and told the courts in no uncertain terms that the ADA is to be interpreted far more broadly.

Continue reading "The Americans with Disabilities Act is Tougher than Ever: What’s an Employer to Do?" »

Posted by Tiffanie Benfer at 08:44 AM | Permalink | Comments (0) | TrackBacks (0)