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Hostile Work Environment Definition
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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 7th 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.

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