Florida Employment Lawyer Blog

Huge. Stunning. Wow. Michael's Arts & Crafts just got hit with a $8.1 million verdict for illegally firing a female employee undergoing chemotherapy for breast cancer. The jury concluded that the company violated the Family & Medical Leave Act and the Americans with Disabilities Act. The verdict included $4M in pain and suffering and another $4M in punitive damages.

By any account this is huge victory for the plaintiff. The verdict form is here:

Jorud v Michaels Arts and Crafts Verdict

The Palm Beach Post covers the store here.

Sarelson Law Firm has represented individuals in similar cases for employees terminated or retaliated against because of a medical condition.

This week, two Eleventh Circuit decisions affirmed the district courts' entry of summary judgment in favor of employers in Family and Medical Leave Act cases. In Krutzrig v. Pulte Home Corporation, No. 09-12512 (11th Cir. April 5, 2010), the Plaintiff requested FMLA leave to have foot surgery. The next day, she was terminated. The supervisors deciding to terminate her employment said they were not aware of Krutzrig's leave request when they made the decision. The employer said the decision was based on Krutzrig's unsatisfactory job performance; she had been placed on a 30-day performance improvement plan. Despite the temporal proximity of the events, the court found no evidence contrary to the employer's claim that both decision makers were unaware of Krutzrig's leave request. The court adopted other circuits' reasoning that like the FMLA right to reinstatement, the FMLA right to non-interference with the commencement of leave is not absolute. The Court ruled that "an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave." Krutzrig demonstrates the difficulty an employee has in even getting to a trial in federal court because the court requires the employee to have actual proof that the actual decisionmakers actually took her FMLA request into consideration. The actual summary judgment standard requires a plaintiff to present evidence that she "could" win at trial, but the summary judgment standard that is being applied in practice is that the plaintiff must present evidence that she "will" win at trial. The blog is afraid that this decision will encourage employers to isolate decisionmakers and to avoid a paper trail of communication between and among supervisors and decisionmakers at all levels in an effort to escape liability for an illegal termination. This allows employers to get a free pass if the plaintiff cannot show that the employer's "we know nothing" defense is a fiction.

A second case, Schaaf v. Smithkline Beecham Corporation, dba Glaxosmithkline, No. 09-10806 (11th Cir. April 6, 2010), also addressed an FMLA interference claim. The decision affirmed the trial court's granting of summary judgment in favor of the employer. The plaintiff, Schaaf, was demoted upon returning from maternity leave. As in the above-discussed case, the employer claimed that their decision to demote or terminate Schaaf was based on the numerous complaints form her subordinates, failure to comply with a performance improvement plan, and several problems found by her interim replacement. Again, the court was persuaded by the employer's evidence that Plaintiff was demoted because of ineffective performance, and not for taking FMLA leave. The court rejected Schaaf's argument that the employer's finding of deficiencies while she was on leave constituted interference in violation of the FMLA. The court ruled, however, that the statute's purpose was not frustrated if the employee's absence allows the employer to discover previous problems that result in an adverse employment action. Such a situation would not be interference because "the employer is motivated not by the taking of the leave itself, but rather by prior deficiencies that, whenever they were discovered, would have prompted demotion or discharge whether or not the employee took FMLA leave."

These cases demonstrate the importance of retaining a seasoned FMLA attorney before requesting leave.

Pregnancy discrimination is rampant and on the rise. Both male and female managers can be biased against pregnant or expected to be pregnant women because of the stereotype of taking time off work and of being sick and out of the office a lot. According to the EEOC press release, Imagine Schools, a national charter school company, failed to retain two female employees because they were pregnant. The result for Imagine Schools was a lawsuit by the EEOC and a $570,000 settlement.

Since the Americans with Disabilities Act does not consider "pregnancy" to be a disability, Congress amended Title VII to make clear that pregnancy discrimination is a form of sex discrimination and that it is illegal. Many states, including Florida, treat pregnancy discrimination as a form of sex discrimination without have a distinct statute like the federal counterpart.

Pregnancy discrimination is not limited to actually being pregnant. Being denied a job because the prospective employer believes you will become pregnant soon is still pregnancy discrimination. Being fired because you had or are contemplating an abortion is still pregnancy discrimination. Any discrimination or retaliation against a woman because she is, was, will be or is perceived to be pregnant is illegal. Sarelson Law Firm has experience representing victims of pregnancy discrimination. Call today before a problem arises.

The Family and Medical Leave Act ("FMLA") continues to be one of the most difficult employment statutes for employers to comply with. Many people, especially mid-level managers, simply do not appreciate that the FMLA's leave provision allows an eligible employee to take time off to care for a sick family member. A perfectly healthy adult male can sue under the FMLA when he is refused time off to care for a sick wife or child. That is exactly what is alleged in Walter Mcleroy v. Walmart, recently filed in federal district court in Pensacola, Florida. According to the complaint, the eligible employee requested paperwork to take FMLA leave to care for his wife while she was being treated for heart disease. A mid-level manager terminated him the next day. The complaint is here:

The FMLA is one of the few federal employment statutes that actually places affirmative duties on an employer. An employer is obligated to inform an employee of his potential FMLA rights. Unlike TItle VII and the ADEA, the employer does not get to sit back and wait for the employee to specifically request FMLA leave. Sarelson Law Firm has handled FMLA interference and retaliation lawsuits and is especially keen at representing employees who are contemplating FMLA leave. Consulting an attorney before you request leave is the best way to ensure that your rights are protected.

A federal judge in Philadelphia refused to dismiss a lawsuit filed under the Family and Medical Leave Act where the employee named various individual managers as defendants. Unlike most federal and state laws, the FMLA allows aggrieved employees to file suit against the managers who terminated them in their personal capacity. According to the Order, the plaintiff's manager and other employees who conducted a forensic search of the employer's computers (to dig for a reason to "legitimately" terminate the employee) were subject to being personally sued.

This Order is important because some courts have incorrectly ruled that personal liability under the FMLA (and its sister statute the Fair Labor Standards Act) is limited to high level managers or corporate officers. Department managers and human resource managers need to be very carefully when dealing with an employee asserting his or her FMLA rights. The order is here:

Questions about the Family and Medical Leave Act? Contact an experienced FMLA attorney as soon as you are contemplating FMLA leave in order to protect your rights.

Have you been denied a job because of your genetic information? Did your employer terminate you because it learned that you have a genetic predisposition to breast cancer, Huntington's disease or bipoloar disorder? Probably not -- but it's only a matter of time before someone, somewhere, is subject to a pre-employment genetic screening.

Thankfully the federal government is ahead of the curve on this one. The Genetic Information Nondiscrimination Act ("GINA") took effect on November 21, 2009 and broadly prohibits three things -- (1) using genetic information to make employment decisions, (2) obtaining genetic information about employees and prospective employees, and (3) disclosing genetic information. GINA also prohibits retaliation, in addition to discrimination, as almost all anti-discrimination laws do.

Employers cannot acquire or use your or your family member's genetic information --- or the family history of a disease or disorder --- when making employment decisions. GINA compliments the Americans with Disabilities Act because it covers potential disabilities that have not yet manifested themselves but that the employer believes will and will interfere with your ability to work. This is truly groundbreaking and the blog commends Congress for activing preemptively -- all too often anti-discrimination laws are long over-due reactions to morally objectionable workplace conduct. Here, Congress has acted before it becomes a widespead problem.

Worried how GINA might effect you or your company? Contact an employment attorney on the cutting-edge of employment law.

The Family and Medical Leave Act gives certain employees the right to take up to twelve weeks of unpaid leave to care for a new baby, to fight a serious medical condition or to care for a dependant family member. It was President Clinton's very first piece of legislation and is considered groundbreaking for its acknowledgment that many families are one medical condition away from bankruptcy and that women, more so than men, are subtly punished for having a child. But unlike most employment statutes that require intentional misconduct by the employer, the FMLA is a "strict liability" statute. The company has an affirmative obligation to compy with the FMLA, and when it fails to do so, even unintentionally, it could face serious monetary penalties.

The biggest problem area facing both employees and employers is the "right to return to work" provision. Employers must return a person on FMLA leave to the same or equivalent position, except in the rare circumstance where the position is no longer available due to reasons "wholly unrelated" to the FMLA leave. Two recent cases filed in federal court in Miami highlight the potential danger for employers. First, in Marks v. Orion Medical Enterprises, the employee was denied reinstatement after taking FMLA leave, purportedly because the employee was not physically capable of returning to work. (In the interest of full disclosure, the case against Orion was brought by the author of this blog). Second, in Guzman v. Royal Caribbean Cruises, the employee was returned to work after taking FMLA leave, but according to the complaint, the employee's temporary replacement assumed the employee's responsibiltiies and the employee who took leave was essentially shunned by the company upon returning to work.

It is common for employers to use an employee's FMLA leave to try out new or temporary employees or to "shake things up." But this is illegal and it frequently gets employers in trouble. Even if the employer did not intend to discriminate against the employee who took FMLA, the company is still violating the FMLA by failing to reinstatement the employee to the same or equivalent position.

If you are contemplating taking FMLA leave, you should contact an experienced FMLA employment attorney before you take leave to make sure that your rights are protected ahead of time.