New Work Laws Protecting You in 2009

With a new year come new laws that can protect you.

At the Federal level, new laws went into effect on January 1, 2009 which expand the definiation of “disability” under the ADA, and extend and expand FMLA protection for people who have had a loved one serving in the military.  The Federal minimum wage will also go up on July 24, 2009 to $7.25 per hour. (Until then the Federal minimum wage is $6.55 per hour).

At the state level, a bevy of new laws come into effect.  In California, for instance, new laws address meal and rest periods, pay for computer professionals, work comp reporting, and (during your commute) ban text messaging while driving.

New laws in Illinois also expands the reach of both the FMLA and ADA as applied in that state, by making eating disorders qualify under the law as “serious mental illnesses.”  This will also give individulas with these disorders the ability to get insurance coverage for treatments.

Illinois also passed a law prohibiting employers from discriminating against job applicants on the basis of genetic testing.  The fear was that employers would eliminate applicants who have a family history of breast cancer, for instance, because if hired the applicant would be more likely to miss large amounts of work time and cause insurance rates to increase.  Of course, the applicant may actually never get breast cancer and thus the “discrimination” this law tries to ban.

New Mexico raised it’s state’s minimum wage to $7.50 per hour.  Be a aware that specific cities are free to increase the minimum wage even higher than the the state level.  For instance, even though New Mexico’s minimum wage is now $7.50, if you are working in the City of Santa Fe you get the City’s whopping minimum wage rate that just went up to $9.92 per hour.

And finally, be sure you stop peeing in public when visiting New Hampshire.  In 2009 the Granite State makes public urination a legal violation punishable by a $1,000 fine.

Is the minimum wage also increasing in your state?  Are their new laws going to effect in your area?  Tell us in the comments section!

Curt K. (The Undercover Lawyer)

Hostile Workplace Podcast #5: “I Don’t Know What FMLA Is, But I’m Sure YOU Don’t Qualify For It”

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Have you heard a supervisor admit they don’t know about something with one breath, but then proceed to tell you what you should do about that thing in their next breath?  Listen to one of my readers, Vicki, tell her story dealing with that exact scenario.

Once Vicki used FMLA, others at her work wanted to use FMLA leave too.  This angered her supervisors, who launched a campaign to “get” her.

Listen to Podcast Episode #5 now to hear how Vicki has fared against her company’s attack (and don’t expect a nicey nice happy ending).

You can listen to Podcast #5 through the player here on UndercoverLawyer.com.

Or, if you have iTunes you can click on the link below to listen there and subscribe to the podcast for free:

http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741

The Quick Tip for this episode is an update on the subject of Male to Male sexual harassment. New cases are being filed against restaurants you’ve heard of.

Finally, the Hostile Workplace Podcast now has a listener comment line: (360) 450-5750.

After listening to the show call in and let us know what you think of Vicki’s story, or call in and share your own workplace story. You may find yourself on the front page of the iTunes “Careers” section!

“I Went On Med Leave and Now This…?!” Employee Unfriendly H.R.

Of the many questions I receive and respond to each week, I thought this one was particularly interesting because it shows how short-sighted and employee-unfriendly H.R. departments can be.

A gentleman used medical leave for the first time in his twelve year career. He had to work with his doctor to adjust some medications; then he was set to return to work and continue in his twelfth year with the company without a single bad appraisal.

“CAN I SCREAM DISCRIMINATION…”

Suddenly and without warning he receives a letter from the Human Resources Department that states:

“….if you will need accommodation(s) when you return, please contact the Office of Workplace Diversity before your return. They will assist you with that process……”

The letter doesn’t sound mean, but what does it assume about the employee?  More importantly, how did it make the employee feel?  Here’s what he said:

“What in the world? I am out on FMLA so that my meds can be adjusted. This is the first time in 12.5 years I have taken sick leave because of [a serious condition].

“Suddenly, I am an ADA case too? If 12 years doing the job does not demonstrate that I can perform the essential functions, with or without accommodations, I don’t know what does.

“Can I scream discrimination because they have decided that I need more ‘help?’”

I don’t think H.R. people even think about how letters like this are going to be received by employees.  Maybe the H.R. people don’t even care.

HR DEPARTMENTS ARE DESPERATE

What H.R. people DO care about, however, is showing the company executives that “HR will defend the company at all costs and improve the bottom line.”   HR people are desperate to prove that their department help the company’s bottom line.  In tough times, which departments are the first to get cut?  The ones that don’t help the bottom line.

So, this person’s HR professional probably sends out a letter like the above to every single person on FMLA leave.  I doubt the letter had anything to do with this gentleman specifically; I’d bet money it’s a policy to always send such a letter.

Here’s why: Employers have gotten the smack-down by judges when an employee returns from medical leave and is having a hard time doing their job. It’s obvious to the employer that the person who was just out on leave is hurting, but the employer doesn’t say anything about it, or offer any help, or offer any accommodations at all.

Instead, the employer writes up the employee for “performance issues,” then fires the employee. When the employee sues, the employer says “Hey, we’re not discriminating against the disabled! We didn’t know he/she was disabled! And besides, the employee NEVER said the magic words “I need an accommodation for my disability.”

THE EMPLOYEE GETS $1 MILLION

This is where the court did the smackdown on the employer. The Court says, “B.S.! You DID know. You just approved his medical leave under the FMLA. Your disingenuous crap may fly in the corporate world, but you’re not hiding behind any “magic words” excuse in my courtroom you sonofabitch.”

Then the employer loses a million dollars.

After that, all the other employers in the nation wet their pants saying “We don’t want to lose a million dollars!” So in response “proactive” HR people start sending out letters to people who aren’t even back from leave yet — the letters say “if you need anything at all, just let us know! We even have a special full time Diversity Officer to take care of your special disability needs.”

Now, if an employee like the gent who wrote to me does return to work, does poorly, gets terminated, and sues the company — what’s going to happen?  The HR Department is going to proudly pull out the “is there anything we can do for you” letter.

It’s a CYA letter, plain and simple.

Undercover Lawyer’s Take-Away Tip:

I coud tell that the fellow who wrote to me was, like most employees, a proud person and a thoughtful person.  He just wanted to do well on the merits.   So I suggested that he smack the “disability” issue right back down the HR Department’s throat.

Here’s the letter you can send to your HR Dept:  “To the contrary, I’m absolutely fine and I do not want to be regarded as having a disability.”

Pow! Now they will really wet their pants.  Because the ADA forbids an employer from treating an employee any worse because the employee is “regarded as” being disabled.

This simple letter totally sticks the employer and the HR person between a rock and a hard place. And they’ll be stuck there not because they are trying to be nice and help their employees, but because they (or at least the HR Dept that sent this letter) doesn’t give a crap about the employees and only wants to cover their own butt. That’s all they’re trying to do. And with the “I don’t want to be regarded as disabled” letter employees everywhere will throw it right back at them.

Then the employees, like the gentleman who wrote to me, can just go back to doing their job well. Like they always have.

Is Time Off On FMLA Really Time Off? (Or, do you have to maintain your full-time work load while working a reduced-time schedule?)

Case: Lewis v. School District #70 (April 17, 2008)

A federal court case established for the first time that your employer can NOT expect you to maintain a full time work load when you are off work under the FMLA. The Federal Court of Appeals for the 7^th Circuit held that employees using their FMLA rights to be away from work cannot be held to the same requirements as full-time employees who are at work all day. Your company violates federal law if it tries to discipline or fire an employee who is on FMLA leave because he or she is isn’t producing as much work as the employees who are not on leave.

A Good Worker Must Live Through Bad Times

The worker in this new case was Debra Lewis. Debra began working for Illinois School District #70 in September of 1997 as a bookkeeper and treasurer. For seven years she received good reviews and everyone agreed she performed her job well. Until 2004. When she started using FMLA leave. That changed everything.

In 2004 both of Debra’s parents became terminally ill. A dutiful daughter, Debra tried to care for her father at home. And it was at home, in May of that year, that he died. At the end of that same month Debra’s mother came home from the hospital. Debra’s mother then needed constant care from Debra.

As a result of all of this, Debra often missed work. Her immediate supervisor at the school district, Dr. Hawkins, gave Debra permission take this time off work in order to care for her parents. During the School District’s 2004 fiscal year, Debra missed 72.5 days of work out of a total of 242.

The Boss Has an Attitude Change Toward His Employee

When she was out Dr. Hawkins encouraged Debra to take her work home get it done whenever she could, including on evenings or weekends. She completed much of her work in this way. Dr. Hawkins complained that Debra’s “flex-time” schedule was forcing other employees to alter their schedules to cover for her. Dr. Hawkins also did not like that Debra was not available to answer questions during regular work hours.

The school board wanted to fire Debra for poor performance. Dr Hawkins, to his credit, expressed fear of FMLA liability. So instead firing her, Hawkins offered Debra 12 weeks of unpaid intermittent FMLA leave. Debra accepted.

Even though Debra was on unpaid intermittent leave, Dr. Hawkins still expected her to perform all of her regular work duties. The school board didn’t hire a part-timer or ask co-workers lend a hand. Debra worked nights and weekends to catch up with her work, but it was all unpaid.

The Conflict Takes a “Ludicrous” Turn For the Worse

The school board, at tape recorded meetings, said it wanted to fire Debra and called the FMLA “ludicrous” and a “fiasco.” The board told Dr Hawkins to build a case against her based on her “poor performance” so she could be terminated. Eventually, Debra was given a choice: resign or take a demotion and salary cut based on her poor performance.

Just like I recommend in Work Laws Exposed, Debra kept her job and then went on the offensive. She accepted the demotion offered by Dr. Hawkins, but then immediately filed an FMLA lawsuit. The school district argued that it had a legitimate non-FMLA reason to fire her: poor performance

The Conflict in Court: Who Won?

The first court said that Debra could be held to the same standards as regular full time employees. The Court of Appeals, however, reversed the lower court. The Court of Appeals stated that the School District could not have Debra working and being paid for a part time schedule (on FMLA leave), but require Debra to produce a full time amount of work. With this double standard the School District wasn’t really giving Debra FMLA leave at all. In fact, the District merely allowed her to do some work from home, but reduced her pay for the privilege.

That is not what the FMLA requires. The FMLA does allow an employer to not pay an employee for the periods the employee is out on medical leave. But if the employee is off work on unpaid leave, the employee must truly be relieved of their duties.

Undercover Lawyer’s Tips To Take Away:

1. Your employer must reduce the amount of work you are required to complete in proportion to the amount of time you are away from work when you use FMLA leave.

2. If your employer gripes and complains about the FMLA, immediately write down their exact remarks; then, sign and date your notes. Courts do not like employers who talk negatively about the law.

3. Your employer should arrange coverage for the work you are missing (from another employee or a temp employee); if no coverage is arranged, you may have an FMLA retaliation claim just like Debra Lewis did.