Courts clarify when "intermittent leave"
qualifies for protection
The federal Family and Medical Leave Act allows
workers up to 12 weeks a year of unpaid leave to take care of family
or medical issues. The law permits a worker to take off time from
work at different times, instead of continuously. This is known as
As a result, courts around the country have been
asked to define when absences from work qualify under the FMLA.
Two recent court decisions limit when an employee"s
time away from work qualifies as intermittent leave protected under
In one case, a federal trial court judge in Maine
ruled that the FMLA does not protect chronic tardiness as
intermittent leave – even if a doctor later concludes the tardiness
was due to a medical condition.
A worker was fired for chronic tardiness and
absenteeism throughout her employment as a nurse technician.
Although the employer repeatedly told the woman it
was important to arrive on time, she was late or absent 52 times in
the first five months of employment. She told her supervisor that
her chronic tardiness was due to fatigue and depression and that she
believed she had lupus.
While doctors documented her chronic fatigue, they
didn"t provide a definitive diagnosis and never told her that her
symptoms prevented her from working.
After being fired, the woman sued, claiming her
employer violated the FMLA by failing to tell her she could treat
the time she was late as intermittent leave under the law.
But the court said the FMLA was not meant to protect
chronic tardiness in and of itself.
In the other recent case, a federal appeals court
ruled that holidays that fall during time taken off under the FMLA
not automatically extend the leave.
In the case, a university employee requested
intermittent leave to care for her ailing mother during two separate
periods of three to four weeks each. The university approved her
request, although it told her it would consider her to have resigned
voluntarily if she didn"t return as scheduled.
During the leave period, she told her supervisor she
planned to extend her leave by one day in light of an internal work
holiday the university trustees had granted to employees.
Despite her supervisor"s insistence that she return
as originally scheduled, the woman failed to do so. As a result, her
supervisor concluded she had voluntarily resigned.
The employee sued, claiming the university
miscalculated her leave period in violation of the FMLA. She argued
the university should have extended her leave to account for three
holidays that fell within the leave period, including the internal
But the federal appeals court in Massachusetts
disagreed and sided with the university. The court said federal law
states holidays that fall during leave do not extend the leave.
Dressing and undressing considered "work"
Putting on and taking off work-related clothing may
constitute "work" under the federal Fair Labor Standards Act,
according to a federal appeals court.
Poultry workers sued their employer claiming the law
required they be paid for time spent "donning and doffing" safety
and sanitary clothing, as well as the time spent washing work gear.
The activity took between six minutes and 10 minutes and occurred
six times per day for each employee. The gear included smocks,
hairnets, gloves, ear plugs and safety glasses.
A jury had ruled in favor of the employer. But the
federal appeals court covering New Jersey, Delaware and Pennsylvania
reversed the verdict and ruled in favor of the employees.
The court said activities performed before and after
work must be compensated – as long as they are an integral and
indispensable part of the principle activities of the work itself.
The court noted that the federal law doesn"t require
workers to prove that
the safety gear was cumbersome, heavy or
required concentration to put on and take off. What"s relevant, the
court said, is if an employer requires employees to undertake an
activity for the benefit of the employer.
Employee injured in fight with boss can get
An employee injured in an altercation with his
employer is entitled to workers" compensation – even though the
injury didn"t directly result from a work-related activity,
according to a recent court ruling.
A stir-fry cook at P.F. Chang"s, a Chinese bistro,
injured his shoulder and pelvis when his supervisor pushed him down
by the shoulders. At the time of the incident, he was the only
Chinese employee and spoke little English.
He alleged he was constantly belittled and
mocked over a two-month period by his supervisor.
The Arizona Court of Appeals said the man was
entitled to workers" compensation benefits. The work environment
brought the man and his supervisor together, creating the relations
and conditions that resulted in the dispute and the man"s injuries,
the court said.
Wrongful death claim can be brought despite
An employee may sign an arbitration agreement, but
that doesn"t mean his family is required to go to arbitration on a
wrongful death claim.
A steel worker signed an employment agreement that
required arbitration on any claims he might have. The agreement also
stated it applied to his beneficiaries. After he fell to his death
at work, his
widow filed a wrongful death action on behalf
of his beneficiaries.
The employer argued that under the employment
agreement, the claim had to be arbitrated. But the Ohio Supreme
Court disagreed, saying the employee could not sign away the rights
of his family on claims that did not occur during his lifetime.
Injury on break is employee"s fault
Although an employer"s advertisement was displayed
on the vehicle an employee was driving, the employer wasn"t
responsible for injuries the employee caused in an accident while
running an errand on his own time.
The accident victim, who filed suit, claimed the
employer was responsible. The employer said it required employees
to remove the magnetic advertisements placed
on employees" personal vehicles while they were not working. The
employee who caused the accident didn"t do that.
The Illinois Appellate Court ruled the advertisement
wasn"t important enough to make the employer responsible for the
accident victim"s injuries.
Notice of discrimination timely despite
Preserving rights under federal employment laws
requires workers to meet certain filing deadlines with the Equal
Employment Opportunity Commission. Failure to comply with the
deadlines will torpedo a claim.
A recent case shows that a claim filed with the EEOC
will be considered timely even if it contains errors.
In the case, a female city transit worker in
Washington, D.C. alleged a co-worker sexually assaulted her. She
immediately reported the incident to her supervisor. Her employer
concluded, however, that she didn"t have enough evidence to support
She completed an EEOC questionnaire, but wrote the
wrong date for the
incident. She later sued for gender
discrimination under Title VII.
The employer said the inaccurate questionnaire made
her claim untimely.
The federal appeals court for the District of
Columbia rejected the employer"s argument, saying the employer knew
about the woman"s claim shortly after the alleged sexual harassment
The court said it was mindful of Congress"s "careful
calibration of Title VII"s procedures." But the employee satisfied
the timely filing requirement by promptly pursuing her claim. Also,
the employer didn"t dispute the date the incident occurred, the
Employee"s personal injury claim must go to
An employee must use arbitration – as required in
his employment contract – for a personal injury sustained while he
was working, and even though his employer retained the right to file
a lawsuit in court against the employee.
The injured employee was working for a contractor
that supplied workers for a refinery located in the Virgin Islands.
He signed an agreement with his employer that said any claims he had
against the employer must be arbitrated, including personal injury
Arbitration is a proceeding to resolve legal
disputes outside of the court
The employee was injured at the refinery and claimed
his employer"s negligence was responsible for it. The refinery
responded that the claim had to be resolved in arbitration.
The federal appeals court covering the U.S. Virgin
Islands agreed with the employer.
The employer required employees to arbitrate claims
against it, but reserved its own right to trial. That fact in and of
itself did not make the contract invalid, the court ruled.
Employee required to work on Sabbath can"t
sue for religion bias
A full-time U.S. Postal Service letter carrier was
permitted time off on Saturdays to accommodate his Jewish faith,
which observes the Sabbath on Saturdays.
This arrangement worked for 10 years. But when
budget constraints prompted the U.S. Postal service branch in Ohio
where the man worked to reduce staffing levels and require more
carriers to work additional hours on Saturdays, other employees
became unhappy with the man"s arrangement.
The accommodation was eliminated after union members
voted to recommend its termination. The postmaster suggested to the
man that he reserve some of his vacation time for Saturday absences.
The man was also allowed
to use leave time and exchange days with other
The man sued, alleging that ending his Saturday
accommodation violated his rights under federal law. He claimed that
being forced to take days off from work without pay in order to
avoid Saturday work reduced his pay and eventual pension.
But the federal appeals court covering Ohio ruled
against the man, saying he had not been discharged or otherwise
The court said more than loss of pay must occur
before federal law can cover a claim of religious discrimination.
The court noted the employer did not intend the Saturday work
requirement to force the man to quit.
Asthmatic wins $1.5M in disability
A Texas woman fired after her company refused to
accommodate her violent asthma attacks by removing office air
fresheners recently won $1.5 million in a disability discrimination
suit against her former employers.
Linette Weller worked at Rogelio Sanchez State
Prison in El Paso as a senior chemical dependency counselor. In
1999, her employer began to dole out hand-held aerosol air
fresheners for use in the office.
Over the next two weeks, Weller"s asthma symptoms
got progressively worse, culminating in a trip to the emergency room
when the aerosol caused her bronchial tubes to swell and chest to
close, making it nearly impossible for her to breathe.
After that attack, Weller"s employer accommodated
her and removed the air fresheners from the work area. But less
than two years later, the company installed
automatic air fresheners that were attached to the wall and timed to
periodically release a puff of scented air.
Weller"s symptoms again took a turn for the worse
and she suffered another attack less than a month after the air
fresheners were installed.
She took a leave from her job until she was cleared
to return by her doctors. However, her employer would not let her
return without a signed assurance from her doctors that she would no
longer be affected by the air fresheners. She was later fired.
After a three-day trial, the jury found that that
the employer failed to provide a reasonable accommodation for
Weller"s disability, causing her unnecessary hardship and failing to
deal with her in good faith. The jury awarded her $1.5 million
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