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Milwaukee Employment Law Blog

Updated FMLA poster released by Department of Labor

Most employers in Wisconsin and around the country with a staff of 50 or more are required to display a poster in the workplace that informs workers of their rights under the Family and Medical Leave Act.  The Department of Labor updated this poster on April 16, 2016. While DOL rules allow employers to keep their current FMLA posters in place, the federal agency does require company policies to be updated to reflect the latest changes. The DOL also provides employers with a comprehensive guide to help them ensure that they are in compliance with the 1993 law.

Employers are required to hang the FMLA poster in a place where it can be seen by all covered employees, and it must also be displayed even if no workers are currently eligible for coverage under the law. Popular places to hang the poster include changing rooms, lunch rooms and cafeterias. Employees must also be notified of their rights under the FMLA, which is generally done by including the provisions of the law in employee handbooks or orientation materials. The poster is available from the DOL in both English and Spanish.

Woman's charges against WeWork found to have merit

Wisconsin residents may be interested in learning that the National Labor Relations Board found merit in the charges filed against WeWork by a plaintiff who was fired from her position at the office space sharing company. The employee also has a pending civil suit that she filed in California.

Reportedly, the woman worked for the company from March of 2015 until November of 2015. After noticing a number of violations of safety rules and wage and hour laws, the plaintiff started discussing the issues with her fellow employees. She was told to stop talking about the problems. Then, the company forced all employees to sign a number of documents, including an arbitration agreement which required employees to go through arbitration while waiving their rights to jury trials or class action suits. The woman refused to sign the documents, and she was fired.

Workers in some states are paid while taking family leave

Though employees in Wisconsin can take family leave after a childbirth or adoption, the leave is usually unpaid. Under the Family and Medical Leave Act, full-time employees of employers subject to the federal law can take 12 weeks of unpaid time off per year for medical or family reasons. Now, some states are enacting their own family leave laws that allow employees to receive compensation for some of the wages they miss out on during a period of family leave.

Starting in 2018, employees in New York will be eligible to receive 50 percent of their average weekly wages during the first eight weeks of family leave. The law will be updated in 2021 to cover all 12 weeks of FMLA leave and 67 percent of an employee's average weekly income.

Job protection when injuries, illnesses occur

Many employees in Wisconsin have their jobs protected by the federal Family and Medical Leave Act when needing to take time off work for certain reasons. One company and its employee are going to court because of a possible FMLA violation after the worker was fired when leaving because of a sudden illness.

A truck driver employed by the freight company YRC Inc. experienced chest pains after an argument with his supervisor. The man believed he could be having a heart attack and asked a co-worker to alert their supervisor that he was leaving. Even though the co-worker did alert the supervisor, employees are required to directly tell a supervisor when leaving work under company policy. Since the policy is well-known, YRC treated this as a "voluntary quit" and started the termination process the same day.

Statute of limitations for FMLA complaints

One of the provisions of the Family and Medical Leave Act requires employers in Wisconsin and around the country to give their workers certain notifications, and they may face litigation when they are unable to establish that these required notices were received. One such case involved a supervisor at a Mississippi energy company who took medical leave to care for his ailing father in 2012.

The supervisor had been working at a jobsite in Pennsylvania when he learned that his father was sick, and he was granted medical leave to return to Mississippi and care for him. However, the man became involved in a confrontation with his father soon after arriving, and he was advised by police to stay away. The energy company claimed that it rearranged the supervisor's schedule and mailed him notices required by the FMLA. His employment was terminated a month later after he failed to return to work.

Bank executive files whistle-blower discrimination complaint

Many Wisconsin residents use Bank of America for their various banking needs. On May 16, a female executive with BoA filed a 41-page complaint against the company in Manhattan federal court. In addition to gender discrimination allegations, the 42-year-old executive accused the nation's largest bank of engaging in illegal trading practices and violating whistle-blower protection laws.

In February 2015, the plaintiff in the whistleblower claim was appointed to her position as managing director and co-head of the bank's structured credit products branch. During her employment, she made several complaints about illegal trading practices that she witnessed. One of these illegal trading incidents allegedly occurred in March 2016 and involved Citibank's collateralized loan obligations.

Making the Family and Medical Leave Act work

The federal Family and Medical Leave Act has nuances that both Wisconsin employees and their supervisors need to understand in order to ensure the program works smoothly. A company's human resources department generally approves an employee's request for leave, but supervisors need to be aware of the act's regulations, too.

Under the act, employees are entitled to up to three months of unpaid leave every year. They can take this leave in one chunk or at various times throughout the year. Before the employee goes on leave, they should talk about their return with their supervisor. The law requires leave-takers be allowed to return to their old job or an equivalent. Both need to discuss re-entry options on the off chance that the original job does not exist when the employee ends their leave.

Court dismisses counterclaim against whistleblower

A lot of Wisconsin companies require workers to sign confidentiality agreements when they hire them, but this does not prevent workers from reporting legal violations. This is what LifeWatch Services learned on May 9 when a U.S. magistrate dismissed its countersuit against a whistleblower for violating employment and nondisclosure agreements.

The certified LifeWatch technician conducted heart monitoring assessments and looked for dangerous or unusual heart arrhythmias. He passed the results to the patients' cardiologists to use in their diagnoses and heart treatments. The employee signed a privacy agreement in 2003, when the company first hired him, agreeing not to use any confidential data from the company during his employment or after for himself and not to disclose information to any non-employee of LifeWatch. The worker also signed an HIPAA nondisclosure statement in 2006.

Changes in caregiver trends and FMLA

As many Wisconsin families have both parents working to make ends meet, the need for one of them to take time off to care for a sick child could have an adverse employment effect. In other cases, a single-parent household could be headed by either a mother or a father, and that party might need to make use of FMLA rights at times based on a child's medical needs. However, the increasing need for fathers to use this type of leave does not always equate to a cooperative response from an employer. Just over one-fourth of FMLA cases filed for problems related to child care are filed by men.

Statistics indicate that challenges over the Family and Medical Leave Act are also increasing for men who care for spouses or the elderly. Nearly 40 percent of filings over elder care involve men, and men file 55 percent of cases for spousal care. Although these statistics do not necessarily reflect the percentages of men handling these types of care in the population at large, experts note that men involved in such care of their loved ones are typically employed.

Lowe's settles disability discrimination claims

Many Wisconsin residents shop at Lowe's for their home improvement needs. They may be interested to learn that thousands of its former workers may receive compensation for wrongful termination. The company recently agreed to settle a slew of employment discrimination claims for $8.6 million. The lawsuit, filed by the U.S. Equal Employment Opportunity Commission, alleged violations of the Americans with Disabilities Act.

The EEOC lawsuit stated that Lowe's routinely fired employees for taking medical leaves of absence. The company had set up a maximum leave policy that it used to automatically fire employees once they had exceeded the company leave limit. According to the EEOC, Lowe's policy on medical leave was discriminatory, and the company did not provide disabled workers with reasonable accommodation.

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