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Stephanie Jane Hahn, Attorney At Law
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Indianapolis Employment Law Blog

Employer sued after confusing FMLA leave and maternity leave

Indiana workers who are entitled to leave under the Family and Medical Leave Act as well as maternity leave should be aware of their rights. In a New York case, a woman was fired for allegedly failing to return to work after finishing her maternity leave. However, it appears that the employer considered both leaves to run concurrently, meaning the employee was using both her FMLA leave and maternity leave at the same time.

When the employee initially scheduled her time off for maternity leave, she sent an email to her employer that was titled "Maternity leave", indicating the type of leave she was taking. She also requested the ability to use her accrued vacation leave. The employer did approve the leave and failed to provide FMLA eligibility and designation notices.

Former Disney executive reports harassment, retaliation

On Aug. 2, an ex-Disney executive filed a lawsuit against the company alleging that she was fired in retaliation for reporting sexual harassment. The woman says that two female employees came to her reporting that a vice-president had made inappropriate comments to them. Allegedly, he commented on the woman's appearances and voices. Some Indiana employees may have experienced similar treatment in the workplace.

The suit says the executive sent the complaint up the management ladder until it reached the vice president's supervisor. That supervisor told the man to cease the behavior. However, the woman said the vice president confronted her two weeks later, yelling at her for reporting him and threatening her career. The suit alleges that these verbal and physical outbursts continued and that they discouraged other employees coming forward with similar reports. Disney conducted an internal investigation and found that while his behavior had been inappropriate, he did not break a law or violate company policy, and the man was given a warning.

DOJ claims law doesn't protect LBGT workers

According to the Department of Justice, civil rights legislation does not protect workers in Indiana or anywhere in America on the basis of their sexual orientation. This is counter to a position that the EEOC has held since 2012. The EEOC believes that it is impossible to distinguish between discrimination based on sex and discrimination based on sexual orientation.

The case in question involves a New York man who claims that he was terminated because he was gay. He filed a claim against his employer saying that it violated Title VII of the Civil Rights Act of 1964. That legislation does ban discrimination because of sex. However, according to the DOJ, it only applies when someone is treated differently because of his or her gender. The government noted that Congress has not amended the law in spite of cultural changes related to how people are treated at work and in society.

Employees may sue HR directors for FMLA violations

Eligible Indiana employees who work for companies that are covered by the federal Family and Medical Leave Act can take up to 12 weeks of unpaid leave from work in order to care for their own qualifying medical conditions or those of their family members. If their leave rights are violated, their employers may be held to be liable in subsequent employment lawsuits.

In July, a federal district court in Pennsylvania held that a human resources director may hold personal liability in addition to the liability held by the employer in FMLA violations cases. In that case, a worker took 12 weeks of unpaid leave off from work and requested an accommodation upon returning from surgery of not having to travel long distances for one month.

Restaurant workers and the 80/20 rule

Tipping can be a substantial portion of income for Indiana restaurant workers. They should be aware of the 80/20 rule regarding the role of servers and how it can affect their tip credit.

According to the Fair Labor Standards Act, an employer is not allowed to claim a tip credit if there is a tipped employee that has more than one job, one of which is non-tipped. Typical job duties that may garner tips do not qualify as a dual job, and as a result, the employee is not eligible to receive minimum wages for those duties. An employer would be allowed take a tip credit for the duties that generate tips, even if all of the duties are not tipped-related, and still not be in violation of the FLSA.

Women not alone in facing wage discrimination

Indiana employees may want to take heed of research published by the Center for American Progress. The common perception that wage discrimination is mostly an issue dealt with by women is undercut by the review of data from the Equal Employment Opportunity Commission. The numbers show a variety of filing categories beyond gender. Even when limited to gender, men are represented in significant numbers among the filers.

Among total filings alleging wage discrimination, only about 40 percent were based on gender in the past four fiscal years. Slightly more than 40 percent were grounded on race. Age, disability and national origin were also seen in significant numbers, with genetic and religious discrimination at well under 10 percent of cases. Multiple categories could be included in a single filing.

Avoiding subtle age discrimination

Older adults in Indiana who are job hunting may encounter subtle age discrimination. While the federal Age Discrimination in Employment Act prohibits employers with 20 or more workers from discriminating against workers at or over the age of 40, companies may prefer to hire younger workers for a number of reasons including lower salary requirements. According to the AARP Public Policy Institute, more than 60 percent of workers 50 and older have experienced age discrimination on the job.

There are steps older workers can take to help protect against this discrimination. One is to shorten their resumes by cutting out old jobs. They may also want to leave dates of high school and college graduation off the resumes as well. In most cases, including around 10 years of experience is sufficient. An older person with a great deal of experience may want to consider working as a consultant since that is one job in which seniority is desirable.

Employees should be aware of retaliation for FMLA leave

Most Indiana workers are likely familiar with the Family and Medical Leave Act (FMLA), which grants employees 12 weeks of unpaid leave for family or medical reasons. Employees who are approved for FMLA leave have job protection, and it is illegal for employers to fire them for taking FMLA leave.

Nonetheless, a recent case brought up the question of whether an employer was actually retaliating against an employee for taking approved FMLA leave or if the employer fired the worker for misusing his medical leave to take a vacation. The employer approved the worker for a 30-day medical leave that was not under FMLA since the worker had already exhausted the 12 weeks FMLA permits when he underwent shoulder surgery. While the employee was on non-FMLA medical leave, the employer found photos posted on a social media account of the employee that seemed to show him on multiple vacations.

Court rules employer should pay more legal fees in FMLA case

Employers in Indiana and elsewhere in the country that interfere with federal law, such as refusing leave under the Family and Medical Leave Act to eligible workers, could be liable for their legal fees. The Seventh Circuit recently reversed the decision of a lower court to reduce the amount of legal fees an employer owed to a worker even though the employee may not have proved a claim of FMLA interference.

The case involved a woman whose FMLA leave allowed her to take her autistic son to the doctor. An employee is allowed to take up to 12 weeks of leave annually under FMLA to care for relatives after meeting certain requirements. Later, the woman requested FMLA leave to work from home. While FMLA does not cover this option, people can take two days a week to care for family members in certain circumstances. The company initially offered her the opportunity to work from home and care for her son, but in 2012, it said that employees could no longer work at home due to financial reasons. The woman received incorrect information from the company's human resource department and did not return to work.

The Age Discrimination in Employment Act 50 years later

As the Age Discrimination in Employment Act reaches its 50th anniversary, employment-related age discrimination claims in Indiana and around the country show no sign of abating. According to the Equal Employment Opportunity Commission, claims regarding age discrimination peaked in 2008 at over 24,000. In the past decade, at least 20,000 have been filed annually, and in 2016, there were 20,857 filings.

Employers rarely set arbitrary age limits for jobs any more although this was more of a problem when the act was passed in 1967. However, other age discrimination issues that were a problem 50 years ago still are today. For example, the act mentions that older workers are struggling to keep their jobs as affluence and productivity increase. It also says that older people facing long-term unemployment may struggle to maintain their skill, morale and appeal to employers.

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