Tag Archives: FMLA

Three Clues Your Employer Doesn’t Want You To Return To Work After An Injury

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Apologists for Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.”  But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.

  1. Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.

    A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.

    Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.

  2. Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.

    Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.

  3. Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.

    But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.

    I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.

How the Supreme Court Decision on Same-sex Marriage Applies in the Workplace, Part 2: Family and Medical Leave Act

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Another consequence of the decision legalizing same-sex marriage is that same-sex spouses are eligible for FMLA leave to take care of a spouse with a serious health condition. This raises some difficult practical questions, such as how FMLA leave works for same-sex couples that include: 

Can an employer ask for a marriage certificate when an employee asks for leave to take care of a same-sex spouse? 

The answer to this question is probably yes. The U.S. Department of Labor states that an employer can ask for a verification of marriage so long as they don’t discriminate in the requirement. An employee with a newly legally recognized same-sex marriage may feel inconvenienced that they have to prove their marital status to get FMLA leave. They might also feel they are being discriminated against because heterosexual individuals aren’t asked to provide a marriage certificate when they take FMLA leave to take care of their spouse. However, if an employer requires heterosexual couples to verify marriage through a producing a marriage certificate for insurance purposes, it could make sense that a heterosexual person is not asked to produce a marriage certificate to take family leave, if they have already done so for insurance purposes. 

Taking family leave can be stressful, and I am sure there are some human-resources officials who hold anti-LGBT attitudes. But even if an employer doesn’t request a marriage certificate for heterosexual couples to verify FMLA leave, employees should assume that the request is made in good faith. Courts favor individuals who comply with the requests of their employers, even if those requests aren’t made within the letter of the law. 

In states where marriage was same sex marriage was legalized by Obergefell, when do FMLA protections start?

In states like Nebraska, where the Obergefell decision legalized same-sex marriage, an interesting question is whether an employer is required to retroactively count family leave as FMLA if the leave started before the marriage was formally legalized in that state but the individual’s same-sex marriage was recognized in another state. This is a pertinent issue in Nebraska, since many same sex-couples were married in nearby Iowa, which has recognized same-sex marriage since 2009. The U.S. Department of Labor would likely argue that if you married your same-sex partner in Iowa that you would have had FMLA protections in Nebraska to take care of your spouse even if Nebraska didn’t recognized same marriage until June 26, 2015. But courts may not give much weight to the opinion of the U.S. Department of Labor. This issue is a legal toss-up. The best thing that same-sex couples can do to protect their rights to FMLA leave is to not give their employer any valid excuses for terminating them for taking FMLA leave. 

Please click here to read part one of this series. Feel free to contact our office if you have questions about the issues raised in these two posts.

Don’t Demean FMLA Leave

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Workers do not have many rights.  It’s an unfortunate mantra I recite to many of my injured worker clients.  Of course, union protections exist in certain settings.  Protections against discrimination and harassment exist if unlawful conduct occurs.  However, in most circumstances, Wisconsin employees are “at will” employment–meaning they can be fired for any reason or no reason at all.

An “at-will” employee who is forced to miss work for their own serious health condition (or for a child’s health condition) can face a difficult situation.  Missing work can put their employment status in jeopardy.   In these situations, the protections provided by the federal and state Family and Medical Act are crucial.  While FMLA leave only applies to certain employment settings (generally those with over 50 employees), the FMLA can provide job protection for a certain amount of unpaid weeks while an individual is out of work.

Given this invaluble security, a recent Milwaukee Journal Sentinel caused me concern (“Agency scrutinizes family medical leave in Milwaukee County“).  The article raised questions about the amount of Milwaukee County workers using FMLA leave.  The article certainly paints this type of leave in a negative light, even suggesting the potential “abuse” of this FMLA leave by employees.

 FMLA leave is unpaid leave.  Unless an employee has other available/accrued leave benefits, when they are off on FMLA leave, the employer is not paying wages.  The employee is off work, not getting paid.  Thus, FMLA provides some job protection for the employee, but the employee is not getting rich being off work.  I find it questionable that many employees are abusing a benefit that does not pay them anything.  Demeaning the FMLA is concerning.

 

 

 

 

Do I Have a Wrongful Termination Claim?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Assuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.

You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law. 

Essentially, not all terminations are unlawful. But if your situation fits into the categories described above, then be sure to contact an experienced employment attorney. In addition, it is wise to ask for advice about applying for unemployment, even if there’s not a wrongful termination case.

Legal Avenues Exist for Dealing with Workplace Bullying

Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.

Bullying isn’t limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human-resource professionals.  One study states that 35 percent of employees are bullied at work. In general, if you are being bullied at work, you should document the bullying, try to constructively confront the bully and speak with HR if the bullying continues. If bullying is persistent, you should also consider looking for other employment.

Currently there are no state or federal laws in Nebraska that specifically address workplace bullying. However, in many situations, there are laws in place that employees can use to protect themselves against workplace bullying, from a legal perspective. Exercising your rights under these laws may not stop the bullying. But by exercising your rights under the laws described below you could force a smart employer to take some action against a bully. And by using these legal tools, you could also possibly expose your employer to a retaliation suit if you are fired after trying to stop a workplace bully.

1. Title VII and the Nebraska Fair Employment Practices Act:  Both of these laws make it unlawful to harass a worker based protected classes such as sex, race, nationality, disability, age, and religion. If you are being harassed based on one of these factors, the law forces you to address these complaints with management in order for you to successfully bring suit. While it is difficult to win a harassment case in Nebraska, the fact that you must bring the harassment to the attention of management at least forces management to address the situation. If management is smart they will realize that they need to address the harassment or else they could be subject to legal liability. If management is enlightened, they will realize the cost of employee turnover and address the situation regardless of any potential legal liability.

Many people believe that harassment based on sexual orientation is not against the law in Nebraska.  However, gays and lesbians in Nebraska may be protected from harassment in some situations under the legal theory of “sex plus” discrimination.

So what if workplace bullying is not based on a protected class?  Even then, employees might have legal protections under three laws: the National Labor Relations Act; the Americans with Disabilities Act; and the Family and Medical Leave Act.

2. The National Labor Relations Act. The NLRA protects workers’ rights to act together to address workplace conditions. The NLRA applies regardless of whether a workplace is unionized. If a boss or co-worker truly is a bully, then other people will likely believe they are being bullied as well. By acting collectively, employees stand a better chance of remedying the situation. For example, in the case of Teetor v. Dawson County Public Power District, employees essentially forced management to fire a longtime supervisor who was notorious for bullying subordinates. The supervisor’s bullying was one of the reasons why Continue reading