New Jersey Employment Lawyer Blog

Frequently Asked Questions About the FMLA Part IV: Reinstatement and Remedies

June 15, 2012 | by Jonathan I. Nirenberg

Q. What are my rights when I am ready to return to work from an FMLA leave?

A. Generally, if you seek to return to work at the end of your Family & Medical Leave Act (“FMLA”) leave, your employer must reinstate you to your job, or an equivalent job in terms of duties, compensation, benefits, and other terms and conditions of employment.
It is important to note that normally an employee loses this protection if he or she takes more than 12 weeks off. However, as discussed in a recent article, under certain limited circumstances the FMLA Can Protect an Employee Who Took a Medical Leave for More Than 12 Weeks.

Q. Does my company always have to return me to my job after my FMLA leave?

A. Although employers usually have to reinstate you to your job or an equivalent one at the end of your FMLA leave, there are several exceptions. First, a company does not have to reinstate you if it had a mass layoff or reduction in force while you were on your FMLA leave, and it can prove it would have laid you off even if you had not taken an FMLA leave.

Second, if you are a “key employee,” then your employer might be able to refuse to reinstate you if it can show it will experience a “substantial” and “grievous” economic injury to its business if it did so. The FMLA defines key employees to be employees whose salaries are in the highest 10% of the company’s employees within 75 miles of your worksite.

Q. What damages can I recover in a case under the FMLA?

A. An employee who wins a lawsuit under the FMLA can recover his or her lost wages and benefits. In some circumstances, you also can recover double damages (called liquidated damages) equal to your lost wages and benefits. In addition, you can recover your attorney’s fees and legal costs.

However, the FMLA does not allow you to recover damages for emotional distress or pain and suffering you have experienced. It also does not permit you to recover punitive damages.

Q. My company is violating my right under the FMLA. What can I do?

It is illegal for your employer to refuse to permit you to take time off that you are entitled to under the FMLA. Likewise, it is usually illegal for a company to fire you instead of letting you return to work after your FMLA leave, or to retaliate against you because you requested or took an FMLA leave.

For more information about the FMLA, please refer to our previous Frequently Asked Questions about FMLA Basics, Types of FMLA Leaves, and Requesting an FMLA Leave.

Frequently Asked Questions About the FMLA Part III: Requesting an FMLA Leave

June 7, 2012 | by Jonathan I. Nirenberg

Q. How do I request an FMLA leave?

A. Under the Family & Medical Leave Act (“FMLA”), you have to provide your employer at least enough information that it is aware you need time off for a reason that is covered by the FMLA. You also need to indicate when you expect to need the time off, and how much time off you expect you will need.

Your employer can require you to follow a specific procedure after you request an FMLA leave, such as having you or your doctor fill out a particular form.

Q. How much advance notice do I need to give my employer before I start my FMLA leave?

A. When practical, you are required to give your employer at least 30 day notice before you take an FMLA leave. For example, you ordinarily must give your employer at least 30 days’ notice if you expect to take time off for childbirth, the placement of a child for adoption or foster care, or for a scheduled medical treatment.

However, sometimes it is impossible or impractical to give 30 days’ notice before you need to take an FMLA leave. When that is the case, you only have to give as much notice as is reasonable under the circumstances. For example, if you have an unexpected medical emergency, such as a heart attack or stroke, then you might not be required to give your employer any notice before you begin your FMLA leave. However, you still have to tell your employer that you need time off as soon as it is feasible for you to do so.

Q. Do I need a doctor’s note or a medical certification to take an FMLA leave?

A. Only if your employer requests it. Your employer has the right to request a medical certification supporting your request for time off under the FMLA. If your employer makes such a request, then you have to provide the certification within 15 calendar days, unless it is not practical to do so under the circumstances.

Q. Can my employer request a second medical opinion?

A. Yes. If your employer has reason to doubt your doctor’s medical certification, it can send you for a second opinion. Your employer has to pay for this second opinion.

Last month, we answered Frequently Asked Questions about FMLA Basics, and How to Request an FMLA Leave. Next week, we will answer Frequently Asked Questions about Reinstatement and Remedies under the FMLA.

New Jersey Whistleblower Law Protects Employee Who Objected to Violation of School District’s Affirmative Action Policy

June 1, 2012 | by Jonathan I. Nirenberg

New Jersey has a very broad whistleblower law, the Conscientious Employee Protection Act (CEPA). CEPA protects employees from retaliation when they object to, disclose, or refuse to participate in an activity they reasonably believe (1) is in violation of a law, or a rule or regulation written pursuant to law, (2) is fraudulent or criminal, or (3) is incompatible with a clear mandate of public policy concerning public health, safety, or welfare or protection of the environment. Last month, in Hallanan v. Township of Fairfield Board of Education, New Jersey’s Appellate Division ruled that CEPA protects an employee of a local school district who objected to an apparent violation of her school district’s affirmative action policy since the policy was written to comply with a New Jersey Board of Education regulation.

Lynne C. Hallanan worked for the Township of Fairfield Board of Education as a Supervisor of Curriculum and Instruction. She was also the school district’s Affirmative Action Officer. One of her job duties was to prepare an annual Comprehensive Equity Plan (CEP). The CEP documented the school district’s compliance with its Affirmative Action Guidelines. The district established those guidelines to comply with a New Jersey Board of Education regulation, N.J.A.C. § 6A:7-1.4(c)(2). That regulation requires school districts to identify and correct all unfair educational and hiring policies to ensure “all persons regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status shall have equal and bias free access to all categories of employment in the public educational system of New Jersey.”

In preparing the CEP, Ms. Hallanan became concerned the Fairfield Board of Education had not posted certain job openings before filling the positions, as required under its Affirmative Action Guidelines. She asked the teacher’s union and the superintendent for documents showing that certain positions (including the superintendent’s position) had been posted before they were filled. She never received any such documents.

Ms. Hallanan then submitted a draft CEP to the superintendent in which she stated that the district was unable to find paperwork proving it had followed all of its affirmative action policies. According to her, the superintendent indicated he was unhappy she included that in her report, and told her to remove it from the final version. Ms. Hallanan testified that the superintendent then warned her that she was “calling a strike on yourself with this.” She also said she felt the superintendent started harassing her after she submitted her draft report. Approximately one month later, the superintendent told Ms. Hallanan that her position was going to be eliminated as a cost-saving measure.

The trial court dismissed Ms. Hallanan’s case. It found she did not fall within CEPA’s protection because she did not reasonably believe her employer violated a law or regulation, but only believed it had violated its own internal Affirmative Action policy. However, the Appellate Division saw it differently. It found Ms. Hallanan had objected to something she reasonably believed violated N.J.A.C. § 6A:7-1.4(c)(2), a Board of Education regulation that seeks to prohibit employment discrimination. It also found evidence that Ms. Hallanan reasonably believed the district had bypassed its own Affirmative Action Guidelines when it hired several employees, including the superintendent. Finally, it concluded that there was enough evidence for a jury to find that the decision to fire Ms. Hallanan was retaliatory. As a result, it reversed the lower court’s decision to dismiss Ms. Hallanan’s case, paving the way for her to have her day in court.

Frequently Asked Questions (FAQ) About the FMLA Part II: Types of FMLA Leaves

May 24, 2012 | by Jonathan I. Nirenberg

Q. What types of medical leaves are protected under the FMLA?

A. Covered employees can take medical leaves for a “serious health condition.” The definition of a serious health condition is complicated, but it includes most conditions that either:

Require an overnight hospital stay, or
Last more than three days, and (a) require more than one doctor’s visit, (b) require at least one doctor’s visit and continuing treatment such as physical therapy or prescription medication, or (c) are chronic, and involve extended periods of incapacity or treatment.

Q. What types of family leaves are protected under the FMLA?

A. The Family & Medical Leave Act (“FMLA”) allows eligible employees to take time off to care for an immediate family member who has a serious health condition. Depending on the circumstances, this can include helping take an immediate family member to a doctor’s appointment, helping care for them at home, or providing them comfort and support needed because of their serious health condition.

Q. Who is considered an “immediate family member” under the FMLA?

A. An immediate family member means your spouse, parent, or child.

Q. Does the FMLA give me the right to take time off while I am pregnant?

A. Expecting mothers can take time off if they have a pregnancy-related condition or complication that meets the FMLA’s definition of a serious health condition.

Q. What types of maternity and paternity leave are available under the FMLA?

A. New parents can take a maternity or paternity leave to bond with their new child during the first 12 months after birth or adoption of a child, or for the placement of a foster child.

Q. Do I have to take all of my FMLA leave at the same time?

A. Not necessarily. Under certain circumstances you can take an FMLA leave “intermittently” or on a “reduced leave schedule.” An intermittent FMLA leave is when you take off blocks of time. A reduced leave schedule is when you use the FMLA to reduce the number of hours you work per week or per day, such as taking time off for doctors’ appointments or physical therapy.

Last week, we answered Frequently Asked Questions about FMLA Basics. Next month, we will discuss Frequently Asked Questions about Requesting an FMLA Leave, and Reinstatement and Remedies under the FMLA.

Frequently Asked Questions About the FMLA Part I: FMLA Basics

May 17, 2012 | by Jonathan I. Nirenberg

Q. What is the Family & Medical Leave Act?

A. The Family & Medical Leave Act of 1993 (FMLA) is a federal law that allows covered employees to take protected time off for certain family and medical leaves.

Q. Which employees are protected by the FMLA?

A. To be protected by the FMLA, an employee must have (1) worked for the same covered employer for the past 12 months, (2) worked at least 1,250 hours (an average of 25 hours per week over 50 weeks) for that company over the previous 12 months, and (3) worked in a location where there are at least 50 employees working for the employer within 75 miles.

Q. Which employers are covered by the FMLA?

A. States, and most companies and government agencies with at least 50 employees are covered by the FMLA. However, government agencies and States Cannot Be Sued for Violations of FMLA Relating to Self Care Medical Leaves. They can be sued only for violations relating to family leaves.

Q. How much time off am I entitled to take under the FMLA?

A. Eligible employees can take up to 12 weeks off in a 12 month period for a qualifying medical leave, family leave, or maternity/paternity leave.

Q. Am I protected under the FMLA if I am not planning to return to work after my leave?

A. No. If you tell your employer that you do not plan to return to work at the end of your FMLA leave, then your employer is not required to grant you an FMLA leave. Accordingly, your employer has the right to periodically ask you if and when you expect to return to work.

Q. Will I Continue to Receive Health Insurance From My Company During My FMLA Leave?

A. Yes. Your company must continue your coverage under any group health plan during your FMLA leave, with the same conditions that would have applied if you had not taken the leave.

In our next article, we will answer Frequently Asked Questions about What Types of FMLA Leaves are available under the FMLA. In future articles, we will discuss How to Request an FMLA Leave, and the right to Reinstatement and Legal Remedies available under the FMLA.

Rabner Allcorn Baumgart & Ben-Asher’s Discrimination Lawsuit Discussed in Bergen Record

May 11, 2012 | by Jonathan I. Nirenberg

This morning, I was quoted in the Bergen Record about a civil rights lawsuit I recently filed against the Borough of Bogota. Police Officer Regina Tasca alleges Bogota, as well as Police Chief John C. Burke, Captain James L. Sepp, Sergeant Robert Piterski, and Patrolman Jerome Fowler discriminated against and harassed her because she is gay and female. Officer Tasca also alleges the defendants retaliated against her because she spoke out about matters of public concern, and objected to violations of law including her objections to their gender and sexual orientation harassment. Officer Tasca’s case was filed in Federal Court in Newark, New Jersey.

As I discussed here last month, Officer Tasca’s case has received significant media attention. Since I wrote that article, her case has been the subject of numerous stories including:

NJ Town Tries to Fire Lesbian Officer for Stopping Cop Beat Down (WPIX News)
At disciplinary hearing, Bogota officer’s attorney criticizes investigation into 2011 incidents (Bergen Record)
Police video of emotionally disturbed person at heart of Bogota officer’s disciplinary hearing (NJ.com)
Suspended Bogota police officer gets public support (Bogota Bulletin)

Someone has even started an online petition seeking to Reinstate Officer Regina Tasca.

Bogota is currently holding a disciplinary hearing in which it is trying to fire Officer Tasca. The hearing is scheduled to resume on May 15, 16 and 17. The hearing is taking place at the Bogota Borough Hall, at 375 Larch Avenue, Bogota, New Jersey.

New Jersey Prohibits Harassment Based on Mistaken Belief that Employee is Jewish

May 8, 2012 | by Jonathan I. Nirenberg

In a ground-breaking employment law decision, New Jersey’s Appellate Division recently ruled that an employee can sue for a hostile work environment if his employer harasses him based on a mistaken belief that he belongs to a legally-protected group. Specifically, the court allowed an employee to proceed with his claim that his supervisors harassed him because they mistakenly believed he is Jewish, even though he is not.

Mr. Cowher’s Supervisors Harassed Him Because They Thought He Was Jewish

Myron Cowher worked as a truck driver for Carson & Roberts for approximately two years. His supervisors made anti-Semitic slurs to him on a daily basis. For example, they referred to him as “Jew Bag,” “Jew Bastard,” “you Hebrew,” “bagel meister,” “Jew burger” and “f—ing Hebrew.” They even told him “[i]f you were a German, we would burn you in the oven.” Mr. Cowher’s supervisors apparently made these comments because they thought he was Jewish.

Police Officer Fights Potential Termination and Prepares for Civil Rights Lawsuit

April 21, 2012 | by Jonathan I. Nirenberg

Over the past few weeks, one of our clients has been in the news. Specifically, Bogota New Jersey Police Officer Regina Tasca is currently in the middle of a disciplinary hearing that will determine whether she will lose her job. Her hearing has received significant media attention.

Officer Tasca is the only female and the only gay member of the Bogota Police Department. She has retained my firm to represent her in a civil lawsuit based on the fact that Bogota engaged in gender and sexual orientation discrimination and harassment toward her, and retaliated against her in violation of her civil rights and the New Jersey Conscientious Employee Protection Act (CEPA). She is waiting for the outcome of her disciplinary hearing before she files her lawsuit.

On April 18, Officer Tasca was interviewed live on the WPIX morning news for the story Officer Regina Tasca On Being Suspended For Not Lying About Fellow Cops’ Actions.

https://www.youtube.com/watch?v=EzqDrp0gvuM

On April 17, 2012 her case was the subject of a story on the WPIX evening news entitled Officer May Be Fired After Stopping Beatdown.

Officer Tasca’s hearing has also been the subject of an article in the Bergen Record. Officer Tasca’s disciplinary hearing is scheduled to resume on April 24, April 25.

EEOC Clarifies Reasonable Factors Other Than Age Defense

April 14, 2012 | by Jonathan I. Nirenberg

On March 29, 2012, the United States Equal Employment Opportunity issued new regulations regarding the Age Discrimination in Employment Act (ADEA). Specifically, the regulations relate to the “reasonable factors other than age” defense to disparate-impact claims. A disparate impact claim is when a company has a policy that appears to be neutral on its face, but in practice it disproportionately harms a legally protected group. A policy that has a disparate impacted based on age violates the ADEA unless it is based on reasonable factors other than age.

Under the new regulations, an employee who claims a company’s policy or practice has a disparate impact based on age is required to identify the specific policy he claims has a disparate impact on older workers. However, the employer has the burden to prove it has a reasonable basis for the policy other than age.

The regulations define “reasonable” to mean that an objectively reasonable employer would conclude the policy (1) is reasonably designed to meet a legitimate business purpose, and (2) was applied in a way that reasonably achieves that purpose. Some of the factors relevant to determining whether a factor on than age is reasonable include:

The extent to which the policy is related to the employer’s stated business purpose;
The degree to which the employer accurately defined and applied the policy, and provided guidance and training to the individuals who will apply it, in order to avoid age discrimination;
The extent to which the employer limited the discretion of supervisors when they apply the policy;
The degree to which the company evaluated the policy’s impact on older employees; and
The extent to which the policy harms older workers in terms of the degree of harm and the number of employees who are harmed; and the degree to which the employer took steps to minimize the harm, compared to the cost of taking those steps

The regulations further clarify that the defense is only available in disparate impact case. It is not available in disparate treatment cases, meaning cases in which an employee claims his employer intentionally discriminated against him because of age.

States Cannot Be Sued for Violations of FMLA Relating to Self Care Medical Leaves

April 10, 2012 | by Jonathan I. Nirenberg

Last month, the United States Supreme Court ruled that the “self-care” provisions of the Family & Medical Leave Act of 1993 (FMLA) cannot be enforced against a state, unless the state consents to being sued under the FMLA. The FMLA is a federal law that guarantees eligible employees the right to take up to 12 weeks off per year due to their own serious health condition (medical leaves), or due to a serious health condition of their spouse, parent, or child (family leaves). Under the Supreme Court’s decision, the FMLA’s family leave provisions still apply to states. However, the FMLA no longer requires states to permit their employees to take time off for their own medical conditions.

The basis for the Supreme Court’s decision is the 11th Amendment to the United States Constitution, which declares the states to be sovereign, and limits the federal government’s right to create laws under which states can be sued. The 14th Amendment, which forbids the states from denying equal protection of the law to anyone, provides a limited exception to the States’ sovereign immunity. In the context of federal laws like the FMLA, which are intended to protect against gender discrimination, that exception only applies if the law is intended to correct a well-documented pattern of gender discrimination.

In Coleman v. Court of Appeals of Maryland, the Supreme Court recognized that when Congress passed the FMLA, it had strong evidence that states were discriminating against women based on sex with respect to their family-leave policies. It therefore had previously recognized that the FMLA’s family-leave provisions do apply to states. However, Coleman concludes that Congress did not have enough evidence of gender discrimination with respect to medical leaves for an employee’s own serious health to justify applying those provisions of the FMLA to states. It reached this conclusion even though Congress apparently intended the FMLA’s medical leave provisions to protect women with pregnancy-related illnesses, but in a way that did not discriminate against men by protecting all medical leaves, and not just leaves for pregnancy-related conditions.

The Supreme Court’s ruling does not merely mean that the FMLA’s self-care provisions are unenforceable against states like New Jersey and New York. It also applies to subdivisions of the state, such as towns, cities, boroughs, villages, and other municipalities. It also applies to and municipal police departments, fire department, schools districts, and other state and local government entities. However, it does not eliminate protections against pregnancy or disability discrimination committed by state and local government provided by other laws such as the American’s with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the New Jersey Law Against Discrimination (NJLAD), New Jersey’s Family Leave Act (NJFLA), the New York Human Rights Law (NYHRL), and the New York City Human Rights Law (NYCHRL).