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)

Sometimes it can be penny wise and pound foolish to take action against an employee without a clear understanding of the law.

In Brown v. Nutrition Management Services Co., a decision of the Eastern District of Pennsylvania released on January 30, the court found that the company’s failure to have an attorney research the requirements of the Family and Medical Leave Act (“FMLA”) meant that the company had not acted in “good faith.” This finding cost Nutrition Management Services over $80,000 in additional liquidated damages.

Continue reading "Don’t Tell Me You Didn’t Check with a Lawyer!" »

Posted by Tiffanie Benfer at 12:05 PM | 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)

The New York Times reports that 533,000 jobs were lost in November, the largest one-month decline since December 1974.

http://www.nytimes.com/2008/12/06/business/economy/06jobs.html?_r=1&adxnnl=1&adxnnlx=1228507331-YNAOQpjUJ8LVr45LIZgrIg

No doubt that this is a difficult time for both employers and employees. For employees facing layoffs, emotions are obviously running high. For employers, a reduction in force brings many possible pitfalls. An ounce of prevention in the form of careful planning and review of the decisions of managers may prevent many pounds of damage in the form of lawsuits and liability. Here are some suggestions for employers:

1. Take a careful look at the demographics of the people who will be laid off. Consider having someone independent of the managers who made the layoff decisions conduct this analysis. Make sure that employees in a protected class – older workers, women, or any particular racial group – are not being targeted disproportionately. Imagine that you will have to explain any disproportionate impact to a jury.

Continue reading "Layoffs: Top 10 Tips for Employers Who Would Rather Not Land in Court" »

Posted by Tiffanie Benfer at 04:45 PM | Permalink | Comments (0) | TrackBacks (0)

by Tiffanie C. Benfer, Esq.

November 4, 2008 was a historic day for many Americans. They voted in their first presidential election. When I heard some of these first time voters speak about what motivated them to vote I got goose bumps. I was especially moved by individuals voting for the first time because they believed that for the first time their vote would count.

I was saddened to hear from a colleague, subsequently, that an individual lost his job because he exercised his constitutional right to vote. The Los Angeles Times also reported an incident of an employee of 20 years who was terminated because she voted during her break. Here is the link: http://articles.latimes.com/2004/dec/09/nation/na-voter9.
Many states have statutes that afford employees with the right to time off to go and vote. But, Pennsylvania and New Jersey do not provide statutory protection to the voter on voting day. In Pennsylvania there is case law that establishes it is against public policy to fire someone for jury duty. Voting could be considered a similar civic duty, which would render a termination of an employee for exercising his/her constitutional right to vote a wrongful termination.

Continue reading "TERMINATED FOR VOTING" »

Posted by Tiffanie Benfer at 12:15 PM | Permalink | Comments (0) | TrackBacks (0)