employment law lawyer princeton nj

The Family Medical Leave Act (FMLA) allows employees the right to take off up to 12 weeks (all at one time or intermittently) due to medical issues, birth or adoption for the employee or immediate family members. A federal appeals court recently ruled simply because an employer made a mistake after firing a worker due to alleged abuse of FMLA leave doesn’t mean the employee can maintain a retaliation lawsuit against it.

The case is Capps v. Mondelez Global, 847 F.3d 144 (3d Cir. 2017), and the plaintiff, Raymond Capps, worked for the company (which bought Nabisco) at a plant in Philadelphia. He worked for the company and Nabisco for nearly 24 years. He suffers a degenerative bone disease, avascular necrosis, and developed arthritis in both hips which were replaced in 2003. Despite the surgery he continued to suffer severe pain and periods of inflammation he described as “debilitating.” He asked for and received intermittent leave under the FMLA.

The plaintiff’s legal problems started in February 2013 when he took FMLA time off due to leg pain. He worked a full shift on the 13^th, requested a partial day off and a full day of leave on the 14^th. That night he went to a local pub, became intoxicated and while trying to drive home was pulled over and arrested for DUI. On Friday the 15^th, after his release from jail, he asked for another day of leave due to leg pain.

He came back to work the following Monday, worked without incident, and at the end of July 2013 he was recertified for continued intermittent FMLA leave. In August he pled guilty to the DUI charge.

In early 2014, the company’s human resources manager, William Oxenford, learned of Capps’ DUI conviction and sentence through a newspaper article supplied by an anonymous source. Oxenford had an investigation done and he learned Capps’s arrest date happened on a day when Capps had called out on FMLA leave. There were also two other FMLA leave days that appeared on the court docket.

Capps was confronted with this information in February 2014. In response, he later provided documentation from his physician and evidence from his criminal defense attorney showing he didn’t appear in court on the dates in question.

Capps was fired in March 2014 due to his alleged violation of Mondelez’s policy on “Dishonest Acts on the Part of Employees.” The company stated that Capps claimed to be out due to his FMLA leave but he failed to provide sufficient documentation to support his claim that he needed to take time off due to his medical condition. Capps disputed this conclusion, ultimately suing his former employer for retaliating against him for his FMLA leave. The District Court dismissed his case, he appealed, and the appellate court agreed with the dismissal.

The Third Circuit held that an employer who was certain that FMLA leave was abused, but actually was wrong in that conclusion, may not be liable for violating the law. An employer’s “honest belief,” even if mistaken, was enough to defeat an FMLA retaliation claim in these circumstances. With this decision, as long as an employer can show that its belief is based on an honest mistake, the employee cannot support a retaliation claim.

The Third Circuit wrote that Mondelez, by showing it had an honest belief that Capps misused his FMLA leave, carried its legal burden of demonstrating a legitimate, nondiscriminatory justification for the plaintiff’s firing. It followed other court decisions that when it comes to FMLA retaliation claims:

• The legal issue isn’t whether an employer’s reasons for its actions are right but whether its description of its reasons is honest
• If an employee is discharged because of an employer’s honest mistake, federal anti-discrimination laws offer no protection

The Third Circuit (which reviews cases from New Jersey federal courts) in this case gave employers facing retaliation claims a plausible defense after firing an employee because he or she allegedly misused their FMLA leave, even if that firing is based on a mistake of fact. To be successful, the plaintiff would need to show not only that the leave was not misused, but also establish the company’s intent was to punish the employee for exercising his or her FMLA rights, the reason given by the employer is false, and the employer knows it’s false and is lying about it.

This all adds up to a heavy lift for an employee facing similar accusations.  Each case is unique and decided on its own facts.

If you have questions or concerns about your FMLA rights or retaliation in the workplace, contact the employment attorneys for workers at Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online to set up a near-term reduced fee initial consultation at our Central Jersey location in Kingston.  We will listen to your facts, explain the law, and recommend your best pathways to monetary and social justice.  Call today. You will be glad you did.

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An employee who takes family or medical leave is not protected from being fired for the employer’s legitimate reasons that are unrelated to the leave itself.

Here is an example from a recent court case.

In 2013, Tyson Foods fired Tim Shell, a production supervisor in the Wilkesboro, North Carolina facility, shortly after his return from a medical leave.  This followed three years of complaints about Shell’s job performance. The investigation into Shell’s termination showed that he:

• Improperly assigned supervisory responsibilities to subordinate employees;
• Intimidated employees;
• Threatened employees for use of overtime;
• Was condescending to those around him;
• Undermined his supervisor; and
• Acted unprofessionally toward co-workers.

Shell challenged his termination, claiming that Tyson Foods retaliated following his FMLA leave. Sometimes, an employer in these circumstances will “nitpick” about an employee’s performance, when in fact they are unfairly reacting to the employee’s proper taking of family or medical leave.  This can happen when a facility is under pressure to produce products or sales results, and the employee’s absence is deemed “disloyalty”, the law be damned.  The “performance” discharge is a subterfuge, or pretext, for the real discharge reason.  It is up to the employee’s attorney to investigate and determine how provable the cover-up may be.

On the other hand, there are employees who file claims for wrongful discharge based on alleged family or medical leave violations, against a strong and documented history of poor performance issues.  Federal FMLA and New Jersey FLA do not protect employees from their own workplace misconduct.  The family and medical leave laws are not a shield for poor workmanship or violation of employer policies.

In Mr. Shell’s case, Tyson Foods conducted a thorough investigation; validated the complaints of Shell’s coworkers, both subordinate and supervisory; and produced sufficient documentation to justify its termination decision.

In Shell v. Tyson Foods, United States District Court for the Western District of North Carolina, the federal judge dismissed Shell’s claims of retaliation, because it found ample evidence to justify the company’s decision.  Described by the judge in longstanding legal parlance, Tyson demonstrated a legitimate, non-discriminatory reason for its decision, which Shell was not able to overcome.  Judges do not sit as jurors.  When the defendant employer files a motion for summary judgment, the trial court is required to determine whether the material facts are in dispute.  If they are not, and if the plaintiff employee simply cannot win, even if the facts s/he asserts are found to be true, then the employer is entitled to judgment as a matter of law, and the case must be dismissed forever.  The plaintiff is out of court in such matters, and does not get a jury trial. That is precisely what befell Mr. Shell.

If you have a crisis or concern about an employment law matter or believe your employer has treated you badly — and you want to see if you have a claim worth pursuing, call the employment law attorneys at Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online. We will schedule you for a near-term and reduced fee initial consultation at our Central Jersey offices in Kingston.  We are compassionate counsel and tough advocates.  We will listen to your facts, explain the law, and help you find a pathway to economic and social justice.  We will protect your rights if they have been violated. Call today.  You will be glad you did.

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The Case

Recently, the Third Circuit U.S. Court of Appeals (which includes New Jersey) focused on the obligations an employer has to its employee regarding an invalid or insufficient medical certification. The case —Hansler v. Lehigh Valley Hospital Network — arose when Hansler, who worked for Lehigh Valley, filed for intermittent leave under the FMLA.  Her leave claim was based on symptoms of nausea, vomiting, and shortness of breath.

While waiting for the employer’s response, Hansler missed five days of work. Four weeks after applying for FMLA leave, the employer fired Hansler for chronic absenteeism. Shortly after her firing, Hansler learned that her FMLA leave request had been denied. The employer’s reason was that her condition was not considered serious.

Hansler was later diagnosed with high blood pressure and diabetes, and she filed a lawsuit against her former employer based on a violation of FMLA.

Hansler alleged that she faced retaliation when she sought FMLA leave and that Lehigh Valley interfered with her right to medical leave.

The Decision

The Third Circuit determined that before denying her FMLA application due to an insufficient or incomplete medical certification, the woman’s former employer needed to give her a week to attempt to cure the deficiencies.

This decision means that New Jersey employers must provide their employees with written notice of medical certification deficiencies — and a reasonable time in which to rectify them.

Conclusion

If you believe your employer has failed to follow the laws regarding a request for FMLA leave, then you owe it to yourself to check with knowledgeable employment lawyers for workers.  We will review the facts, research the relevant law, and advise you on the best course of action.   If you need advice, guidance, and coaching, we will provide it.  If you need legal representation, whether in mediation, arbitration, or court, we will help you prepare and present or we will help you present the matter for you if you prefer.  We are compassionate counsel, and tough advocates.

Please call or write to us today.  We want to hear from you.

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Unfortunately employers do not always extend the protections of FMLA to their employers. In fact, they may not even let them know that these protections are available. A retailer with stores throughout the nation, including the state of New Jersey, Staples, Inc. recently faced consequences for failing to do this very thing.

The case

The retailer fired a furniture sales executive who over the course of two years cared for his sick wife by using vacation, sick and personal days. In addition he worked remotely. The worker opted for this approach after asking for a leave of absence but not being told that he qualified for a FMLA leave.

Shortly after he was fired due to a supervisor’s determination that he was not doing his job to the level required, the U.S. Department of Labor’s Wage and Hour Division launched an investigation into the matter. It then filed a lawsuit against the man’s former employer. Specifically the department alleged that in failing to inform the man of his rights regarding a leave of absence it violated the FMLA.

The outcome

Recently, the parties to the case reached a settlement agreement. Staples, Inc. will:

• Pay $137,500 in lost wages and benefits
• Pay $137,500 in liquidated damages
• Train human resources and managerial personnel in FMLA notice and eligibility requirements
• Post FMLA enforcement posters
• Investigate and when necessary correct complaints of potential FMLA violations involving the failure to inform workers of rights

Conclusion

As this case illustrates the burden is not on an employee when it comes to learning about FMLA rights. Those who believe that they have wrongly been denied those rights as a result of not knowing about them could take legal action.

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Under the FMLA and NJFLA, a covered employee is eligible for up to 12 weeks of leave, without pay, when certain situations arise, including the illness of a family member. When an employer fails to provide the requested leave of absence or the employee faces retaliation upon returning from the leave, legal action may be taken. A school district in the state of New Jersey recently faced this.

The case

A woman, who worked as education assistant at a high school sought the unpaid leave of absence in the beginning of 2011. The two month leave she requested was so that she could provide care to her husband following open-heart surgery. Just before the request was granted, her attendance rating was scored as “below expectations.”

Following the leave the woman returned to work as planned. Shortly thereafter she took another day off so that she could accompany her husband to a medical appointment. Just two days after that she learned that due to poor attendance, her contract would not be renewed. According to the woman her attendance record was similar to five other education assistants whose contracts were renewed.

Because she felt the action of the school district was unjust, she filed a formal complaint against it. The Division of Civil rights issued a Finding of Probable Cause against the district three years later. Just last month, the woman and the school district reached an agreement.

The outcome

Under the settlement the district will pay the woman $45,000 for the wrongful termination. In addition, the school district will also implement reforms such as training and adding “serious health condition of a family member” to its family leave policy as a reason why unpaid family leave may be granted.

Conclusion

When an employer fails to provide workers the protections to which they are entitled or engages in retaliatory behavior following a granted leave, legal action could make sense. An employment lawyer can assist in determining the best course of action to take.

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Which do I use, paid sick leave or FMLA?

In some cases, before taking time under FMLA, you may be required to use paid time off that has accumulated. In others, you may need to take unpaid FMLA leave rather than sick leave that is paid. The decision depends upon the employer’s policies. The employer must treat all similarly situated employees alike, and in accord with company policies. When one employee is treated differently than others, legal action could follow. This could also be true if an employee is forced to take both at the same time.

May you use FMLA time to care for a family member?

FMLA may be used to address your own serious medical condition or that of an immediate family member. Exactly what that means depends on the defining state. In New Jersey, the Family Leave Act (“NJFLA”) expands the FMLA and, among other things, provides leave to attend to an unwell or disabled spouse, minor child, parents, and in-laws.

Does the time need to be taken in one chunk?

FMLA and FLA time off does not need to be taken in one large chunk. It may be taken a few hours or days at a time. When calculating the time spent away from work, it is important to be precise. The hours recorded will be translated into portions of a week.

Conclusion

The failure of an employee to follow guidelines regarding time away from work can be problematic for that worker. Likewise, when a business fails to provide qualified employees with FMLA or NJFLA leave, it will face legal action. Because of the complexity of these laws, employees often run into problems. Experienced employment law counsel for workers will be key to employees’ empowerment in these circumstances.

Please call or write us to schedule an appointment regarding any employment law matters, including FMLA/FLA leave. Protect your rights. Contact us today.

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The answer has changed in the past few years as same-sex marriages have become legal in various states. In United States v. Windsor, the U.S. Supreme Court found unconstitutional the part of the federal Defense of Marriage Act that limited “marriage” and “spouse” to heterosexual couples only. Things began to change dramatically and rapidly in various courts around the country, at both the federal and state levels.

As a result of that June 2013 decision, the Department of Labor announced last year it intended to change the FMLA definition of “spouse”. Accordingly, it issued a notice of proposed rulemaking. The proposed changes make federal family leave rights consistent for all legally married couples–same-sex and opposite-sex–even if after marrying they relocate to a state in which the marital union is not recognized.

Since it typically takes a minimum of three months for such a rule to be proposed following, the close of the initial comment period, and that period closed in August of last year, it is possible that a rule could be proposed very soon. Even then, however, the rule would not be final. Instead, there will be another comment period and response time before the rule will be finalized.

We will provide updates on this subject. In the meantime, it is likely that same-sex couples who reside in the State of New Jersey will wonder how the FMLA applies to them. It is best to consult with a lawyer who represents New Jersey employees in their FMLA-related issues. We encourage anyone with questions to contact our law firm. You will be happy that you did.

Source: BLR, “DOL to change FMLA spousal leave: Notice of proposed rule issued for new definition of spouse,” Susan Schoenfeld, Sept. 11, 2014

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Not every New Jersey worker qualifies for this leave. The employer must employ at least 50 workers within a certain geographic distance of each other. In addition, an employee must have been employed by that business for a minimum of 12 months, and during that time, have worked at least 1,250 hours.

For those who meet those requirements, there are multiple situations where you may take unpaid leave and still receive job protection. One of the most common situations involves childbirth, adoption of a child, or foster care.

The unpaid leave of absence may also be taken to address your own medical condition or to provide care to a loved one who is in your immediate family. In the state of New Jersey, in addition to a spouse, child, or parent, a parent-in-law is also included.

FMLA protection is supplemented by the Americans with Disabilities Act, in which qualifying employees are entitled to consideration for reduced work hours or leave time, to help them reasonably accommodate to the expected requirements of the job. When time off — including reduced work hours, certain days off per week, or a greater leave time — would help these employees do their jobs better, get treatment, or the like, FMLA time may be just the ticket to make the job assignment positive for everyone.

If you find yourself in circumstances similar to those outlined above, FMLA leave may be the right way to go. Unfortunately, some employers do not understand the law, misapply the law, or deny leaves when they are requested or required. In other cases, following an approved FMLA leave, an employer might unlawfully retaliate, either by firing an employee or reassigning him or her to something substantially different when they return. In these situations, an experienced employment lawyer can assist the employee to become fairly treated, reinstated, or reasonably compensated for wrongful discharge. In appropriate cases, we will represent employees before the federal Equal Employment Opportunity Commission and in state or federal court, as necessary, to fully vindicate your rights.

World Report, “6 Things You Need to Know About the Family and Medical Leave Act,” Jada A. Graves, April 13, 2013

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Before reaching the agreement, the company might have violated the Family Medical Leave Act (FMLA) when they fired an assembler in May 2012. The woman had worked in the company’s ventilation and air conditioning plant in Trenton since July 2010. During the last few weeks of her pregnancy, the woman was approved by the Department of Labor and Workforce Development to receive temporary disability benefits. When she sought medical leave from her employer, however, her request was refused, and she was fired.

The New Jersey Law Against Discrimination recently added pregnancy as a separate and protected class. Despite the fact that the law was amended after the incidents at the Trane plant took place, officials involved in the case noted that courts commonly view pregnancy discrimination as an aspect of sex discrimination.

Employees who have been discriminated against based on pregnancy should contact a knowledgeable and experienced plaintiff’s employment law attorney for help seeking damages. An attorney may be able to assist an employee who has been wrongfully terminated from her job. Employees who have returned from a leave of absence to find that they have been reassigned to other duties may also have a claim, including a possible claim of retaliation.

Source: United States Department of Labor, “Family and Medical Leave Act”

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While FMLA leaves are unpaid, the New Jersey Family Leave Insurance program allows for partial wage-replacement during family and medical leaves. New Jersey is one of only three states that offers workers paid family and medical leave; the wages are paid from pooled employee paycheck contributions. Federal lawmakers are now considering creating a similar national program.

The Family and Medical Insurance Leave Act would create a national trust fund as part of the Social Security Administration. The SSA would collect wage contributions from employers and employees and administer leave benefits. The bill calls for employees to contribute 1/5th of one percent of their wages. For the average worker, this is the cost of one cup of coffee per week.

Paid leave benefits would be available to anyone with a work history and sufficient earnings. This is in contrast to the FMLA and the New Jersey FLA, which require only companies that have 50 or more employees to provide job-protected leaves; to be eligible for an unpaid FMLA or FLA leave, an employee must have worked for the employer for at least one year, having put in a minimum of 1,250 hours.

The FAMILY Act would not provide total wage replacement during leaves. Individuals would receive up to 66 percent of their normal monthly wages, and there would be a cap.

This bill may prove controversial with employer groups. Americans have only had the right to unpaid family and medical leaves for the past 20 years, and we remain the sole advanced economy that does not have a national paid family leave policy.

It will be interesting to see whether this legislation gains momentum or dies in the current Congress. In the meantime, New Jersey residents should be aware that they have family and medical leave rights under the federal FMLA, NJ FLA, and NJ Family Leave Insurance program.

If you have questions or concerns about coverage, you should speak to an experienced employment law attorney.

Source: Hudson Valley Press, “Family Medical Insurance Leave Act Introduced,” Jan. 1, 2014

Source: Washington Post, “States make moves toward paid family leave,” Brigid Schulte, Jan. 2, 2014

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